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Home My WebLink AboutResolution 2005-043 fourth amendment to the gladden farms development agreement MARANA RESOLUTION NO. 2005-43 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF THE FOURTH AMENDMENT TO THE GLADDEN FARMS DEVELOPMENT AGREEMENT; AND DECLARING AN EMERGENCY. WHEREAS, the Mayor and Council find that the terms and conditions of the Fourth Amendment to the Gladden Farms Development Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AS FOLLOWS: SECTION 1. The Fourth Amendment to the Gladden Farms Development Agreement is hereby approved. SECTION 2. The Mayor is hereby authorized and directed to execute, and the Town Clerk is hereby authorized and directed to attest to, the Fourth Amendment to the Gladden Farms Development Agreement attached to and incorporated by this reference in this Resolution as Exhibit A, for and on behalf of the Town of Mar ana. SECTION 3. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this resolution. SECTION 4. Since it is necessary for the preservation of the peace, health and safety of the Town of Maran a that this resolution become immediately effective, an emergency is hereby declared to exist, and this resolution shall be effective immediately upon its passage and adoption. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19th day of April, 2005. ATTEST: ~d~' ~r Mayor BOBBY SUTTON, JR. ..."\"U",,/~ §' OF~"'~ ß"~~\\""r",,~~ S~. cORPoRAr?,\'S!. _ . CCC> _ _ - _SEAL;:: - ~ \ ~ ;: ~... ,;: ~ '!f;!"'U"\\~ ~ ..~ 'T/2 '\ ~,.~ ~II,in\\\~ ,. , {OOOOO665.DOC I} FJClcds 4113105 FOURTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT THIS FOURTH AMENDMENT TO THE GLADDEN FARMS DEVELOPMENT AGREEMENT ("this Fourth Amendment") is made by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and GLADDEN FOREST, L.L.C., an Arizona limited liability company ("Developer"). The Town and the Developer are collectively referred to in this Fourth Amendment as the "Parties" and are sometimes individually referred to as the "Party." RECITALS A. The Developer owns the development project commonly known and referred to in this Agreement as "Gladden Farms," which is the land that is the subject of the document entitled "DEVELOPMENT AGREEMENT BETWEEN TOWN OF MARANA, ARIZONA, FIDELITY NATIONAL TITLE AGENCY, INC. AND GLADDEN FARMS, L.L.C." recorded in the Pima County Recorder's office at Docket 11738, Page 1900 (the "Original Agreement"). B. The Parties amended the Original Agreement with the execution of the First Amendment to Gladden Farms Development Agreement dated February 17,2004, and recorded in the Office of the Pima County Recorder in Docket 12242, Page 1055 (the "First Amendment"). C. The Parties amended the Original Agreement and the First Amendment with the execution of the Second Amendment to Gladden Farms Development Agreement dated July 20, 2004, and recorded in the Office of the Pima County Recorder in Docket 12350, Page 5025 (the "Second Amendment"). D. The Parties further amended the Original Agreement, the First Amendment and the Second Amendment with the execution of the Third Amendment to Gladden Farms Development Agreement dated December 21, 2004, and recorded in the Office of the Pima County Recorder in Docket 12455, Page 1506 (the "Third Amendment"). Together, the Original Agreement as amended by the First Amendment, the Second Amendment and the Third Amendment is referred to in this Fourth Amendment as the "Gladden Farms Agreement". E. Paragraph 3.4 of the First Amendment requires the Developer to submit a partial re- subdivision of the Gladden Farms Block Plat, one purpose of which was to eliminate Sandario Road south of Moore Road and showing it as abandoned in favor of the Developer pursuant to A.R.S. § 28-7203 in exchange for the right-of-way dedicated pursuant to the Gladden Farms Block Plat and the new Heritage Park Road dedicated pursuant to paragraph 1.2.1 of the First Amendment. F. The partial re-subdivision required by paragraph 3.4 of the First Amendment was accomplished by the Final Block Plat of Gladden Farms Blocks 13, 14 and 15, approved by the Town on February 1, 2005 and recorded on February 4, 2005 in the Pima County Recorder's office at Book 59, Page 31 of Maps and Plats (the "Gladden Farms Re-Plat"). {00000664.DOC / 2} FOURTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 4/15/20054:54 PM - 1 - G. General Note 25 of the Gladden Farms Re-Plat provides: "By the approval of this plat, the Town of Marana hereby abandons Sandario Road (Twin Peaks-Marana Extension, Book 5 of Road Map Pg 84) within the NEV4 of Section 33 and the NWV4 of Section 34, T 11 S, R 11 E pursuant to ARS 28-7203 in exchange for new rights-of-way dedicated by this plat." H. Paragraph 3.4.1 of the First Amendment provided that ownership of the abandoned Sandario Road right-of-way would pass to the Developer after dedication and construction of Heritage Park Road and Gladden Farms Drive and after the extension of certain utilities necessary to serve the Heritage Park. 1. Paragraphs 1.1, 1.2 and 1.3 of the First Amendment required completion not later than December 31,2004 for the construction of Heritage Park Road and Gladden Farms Drive and the extension of certain utilities necessary to serve the Heritage Park. J. The Third Amendment extended the time for completion of Heritage Park Road to July 31, 2005 as a result of delays arising from negotiations concerning the disposition of Cortaro- Marana Irrigation District improvements affected by the construction. K. The Parties desire to address temporary access and utility conditions existing prior to the completion of Heritage Park Road and Gladden Farms Drive so that the abandonment of Sandario Road from Moore Road to the south right-of-way line of Tangerine Farms Road may be fully effective. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Fourth Amendment, the Parties hereby agree as follows: Article 1. Heritage Park Access 1.1. Temporary Access Easement. Developer hereby grants a temporary access easement for vehicular and utility access over, along and under the land described in Exhibit A attached to and incorporated by this reference in this Fourth Amendment (the "Temporary Access Easement Land"), which easement shall remain in full force and effect until Gladden Farms Drive and Heritage Park Road are completed. 1.2. Maintenance of Vehicle Access to Heritage Park. From the date of this Fourth Amendment until Gladden Farms Drive and Heritage Park Road are completed, Developer shall maintain a dirt road reasonably passable by conventional motor vehicle from the intersection of Tangerine Farms Road and Moore Road, over the Tangerine Farms Road right-of-way, and over the Temporary Access Easement Land to the Heritage Park. 1.3. Elimination of Condition on Passage of Title. Paragraph 3.4.3 of the First Amendment is hereby modified to delete the clause stating that "ownership of the right-of-way shall not pass to the Developer until the Developer has performed its obligations under paragraphs 1.1, 1.2 and 1.3" of the First Amendment. Article 2. Clarification of Third Amendment 2.1. Time Extension Applicable to Gladden Farms Drive and Utilities. The Parties hereby confirm that the extension of time for construction of Heritage Park Road to July 31, 2005 as granted by the Third Amendment also applies to the construction of Gladden Farms Drive and {00000664.DOC / 2} FOURTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 4/15/20054:54 PM - 2 - the extension of utilities addressed in paragraphs 1.1 and 1.3, respectively, of the First Amendment. Article 3. General Terms and Conditions. 3.1. Effect on Gladden Farms Agreement. Except as expressly modified in this Fourth Amendment, the terms, provisions and obligations of the Gladden Farms Agreement shall remain in full force and effect. By signing below, the Parties respectively acknowledge that, to their respective best knowledge, no defaults exist under the Gladden Farms Agreement. 3.2. Counterparts. This Fourth Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 3.3. Severabilitv. If any provision of this Fourth Amendment is declared void or unenforceable, it shall be severed from the remainder of this Fourth Amendment, which shall otherwise remain in full force and effect. If a law or court order prohibits or excuses the Town from undertaking any contractual commitment to perform any act under this Fourth Amendment, this Fourth Amendment shall remain in full force and effect, but the provision requiring the act shall be deemed to permit the Town to act at its discretion, and if the Town fails to act, the Developer shall be entitled to terminate this Fourth Amendment. 3.4. Governing Law. This Fourth Amendment is entered into in Arizona and shall be construed and interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding sentence shall constitute a waiver of paragraph 5.4 of the First Amendment, requiring disputes to be resolved by binding arbitration. 3.5. Interpretation. This Fourth Amendment has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Fourth Amendment for purposes of construing any portion of this Fourth Amendment for or against any party. 3.6. Recordation. The Town shall record this Fourth Amendment in its entirety in the office of the Pima County Recorder no later than ten days after it has been executed by the Town and the Developer. 3.7. Conflict of Interest. This Fourth Amendment is subject to A.R.S. § 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. {00000664.DOC / 2} FOURTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 4/15/20054:54 PM - 3 - IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment as of the last date set forth below their respective signatures. THE TOWN: THE DEVELOPER: BY:'7ŽS~~' -4- Bobby Sutton, Jr., Mayor GLADDEN FOREST, L.L.C., an Arizona limited liability company By: Its Managing Member, Forest City Land Group, Inc., an Ohio corporation THE TOWN OF MARANA, an Arizona municipal corporation Date:.Apr i\ \9, )..005 . By Dean Wingert, Senior V' ATTEST: Date: k,;(lt /9_ UJoS- , ~"''''''''/~ ~ OF~'~ #~~\\\""rr',~~ :: PI CORPORATE\'S!. - r-:J c:x)O .. _ = ESEALS = :;i: ;#!'III ill'!: ~ .,;: ~ "1 ~II"I&"\\~ .s: ~ 'iIZ '\<!"~ ~I,in\\\~ STATE OF ARIzONA ) ss County of Pima ) My commission expires: ~ The foregoing instrument was acknowledged before me on.4>r1Á I C1, ö5 by Dean Wingert, Senior Vice President of Forest City Land Group, Inc., an Ohio corporation, Managing Member of GLADDEN FOREST, L.L.C., an Arizona limited liability company, on behalf of the L.L. C. ~\\''''''''''''IIII ~",\.. \(EU", II""... ;~ 1010TA1it>&~ '" " rA>'~\ ~~~ c>i n·! ~¡.~ § ~,.., ~~ * ~ ~. 0", ~ ~,$' '\ ~""'t> 'IVTv. ~ rl,.~f:j #" ;;""'/. '2·16- "",,, ""1/""111\1"\\' UI {OOOOO664.DOC / 2} FOURTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 4/15/20054:54 PM -4- Apr 08 05 03:59p Rick Engineering 520 322 6956 p.2 RICK 1M ENGINIEIUNO COMPANY LEGAL DESCRIPTION THAT PORTION OF BLOCK 13 OF GLADDEN fARMS BLOCKS 13, 14, 15, A SUBDIVISION OF PIMA COUNTY, ARIZONA, RECORDED IN BOOK 59 OF MAPS AND PLATS AT PAGE 31, RECORDS OF THE PIMA COUNTY RECORDER BEING A RE-5UBDMSION OF A PORTION OF GLADDEN FARMS BLOCKS 1 THRU 25 AND A nt8U f RECQRP~ IN BOOK 55 OF MAPS AND PLATS AT PAGE 60, SAID RECORDS OF THE PIMA COUNTY RECORDER, DESCRIBED AS FOLLOWS: A 25.00 FOOT WIDE STRIP OF lAND lYING 12.50 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED UNE: BEGINNING AT A 1/2 INCH REBAR (NO TAG} AT THE EAST QUARTER CORNER OF SECTION 33, TOWNSHIP 11 SOUTH, RANGE 11 EAST, GILA AND SALT RIVER MERIDIAN, ALSO BEING THE WEST QUARTER CORNER OF SECTION 34 OF SAID TOWNSHIP AND RANGE, SAID QUARTER CORNER BEING AN ANGLE POINT IN THE SOU11-l LINE OF SAID BLOCK 13; THENCE NORTH 0°34'43- WEST 73.40 FEET UPON THE EAST UNE OF THE NORlliEAST QUARTER OF SAID SECTION 33; ll-IENCE NORlli 2°27108° WEST 204.30 FEET TO THE POINT OF TERMINUS ON THE SOUTH RIGHT OF WAY UNE OF TANGERINE FARMS ROAD AS SHOWN ON THE PLATS OF SAID SUBDIVISIONS, SAID RIGHT OF WAY UNE BEING THE ARC OF A CURVE CONCAVE NORTHEASTERLY; FOR REFERENCE, THE RADIUS POINT OF SAID ARC BEARS NORTH 30°15'0411 EAST AT A DISTANCE OF 2625.00 FEET FROM SAID POINT OF TERMINUS. . SAID srRIP TO BE LENGTIiENED OR SHORTENED TO BEGIN ON SAID SOUTH LINE OF BLOCK 13, TO INTERSEcr AT THE ANGLE (»OINT AND TO TERMINATE ON SAID SOUTH RIGHT OF WAY LINE. THE BASIS OF BEARING FOR THIS DESCRIPTION IS THE EAST UNE Of THE NORTHEAST QUARTER OF SAID SECTION 33 AS MONUMENTED BY SAID V;' INCH REBAR AT THE EAST QUARTER CORNER AND BY A BRASS DISC IN STREET WELL AT THE NORTHEAST CORNER OF SAID NORTHEAST QUARTER; SAID BEARING BEING: NORTH 0°34'4311 WEST. PAGE 1 OF2 174S East River ROId . Suite 101 . TIICSOII . ArizOfta . 15118 . (S20)79S-JOOO . f~: (520) 322-6956 . www.ñçJ¡cnginccring.c:om G:\GLADDEN\3305\LEGAlS\33OSlGOlJ\CŒSS.DOC .........-, ...-. .................. --. -- - ......---- --- -- - - --- -- - --- -- -- -- .---- ApJ'" OB 05 04:00p Rick En~ineeJ"'in~ : ~ ,. 4~ ¡ SECTION I 33~ I I I I I I I I I I I I I , I I I I BLocK II 13 I' 112.5, 1 , I I I I I I f I I I J I ) I / I _../. 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