HomeMy WebLinkAbout03/07/2006 Blue Sheet Gladden Farms II Development Agreement
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
MEETING DATE: March 7, 2006
AGENDA ITEM: J.2
TO: MAYOR AND COUNCIL
FROM: Frank Cassidy, Town Attorney
SUBJECT: Resolution No. 2006-38: Relating to Development; approving and
authorizing the execution of a development agreement with FC/M
GLADDEN II, L.L.C., regarding the Gladden Farms II development
project.
DISCUSSION
This development agreement involves all but a 2.39 acre portion of the Gladden Farms II devel-
opment project which is the subject of a specific plan on tonight's agenda. This development
agreement does not cover the 2.39-acre parcel at the southwest comer of Moore and Postvale
Roads containing the former Stan Gladden residence, which is owned by a separate legal entity.
Much of this development agreement was modeled after the development and real estate ex-
change agreement for the Tangerine Commerce Park property, which the Council approved on
December 20, 2005.
Among other things, this development agreement includes the following key elements:
. The developer will dedicate to the Town the right-of-way necessary for Tangerine Farms
Road, Moore Road and Clark Farms Road.
. The developer commits to pay its fair share improvement district assessment on the
Gladden Farms II property, based on a frontage foot formula contained in the agreement.
· If for some reason a municipal improvement district is not established by the end of 2007
for purposes of constructing and financing the Tangerine Farms Road improvements, the
developer is required to build the full four-lane cross-section of Tangerine Farms Road
through the Gladden II project.
· The Town will not issue building permits for vertical construction on the Gladden
Farms II property unless and until completion of the Tangerine Farms Road realignment
east of Gladden Farms II, redirecting traffic straight into the I-IO/Tangerine Road inter-
change and eliminating the need for Tangerine Farms Road traffic to access the frontage
road before reaching the interchange.
· The developer is obligated to pay for other streets and intersections within or serving the
Gladden Farms II project.
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. The payment of a $500-per-acre levee fee is addressed as required by Marana Ordi-
nance No. 99.02.
. Protected development rights are established for the property consistent with the specific
plan for seven years after vertical construction begins on the Gladden Farms II property,
RECOMMENDATION
Staff recommends adoption of Resolution No. 2006-38, approving and authorizing the execution
ofthe Gladden Farms II Development Agreement.
ATT ACHMENT(S)
Gladden Farms II Development Agreement. The exhibits to the Agreement will be provided
separately to Council.
SUGGESTED MOTION
I move to adopt Resolution No. 2006-38.
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MARANA RESOLUTION NO. 2006-38
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION
OF A DEVELOPMENT AGREEMENT WITH FC/M GLADDEN II, L.L.C., REGARDING
THE GLADDEN FARMS II DEVELOPMENT PROJECT.
WHEREAS FC/M GLADDEN II, L.L.c. has presented the Gladden Farms II Specific Plan
to the Town Council for consideration, governing the proposed Gladden Farms II development
project; and
WHEREAS FC/M GLADDEN II, L.L.C and the Town desire to enter into a development
agreement to further clarify the obligations of the parties relative to the development of the
Gladden Farms II development project; and
WHEREAS, the Mayor and Council find that the terms and conditions of the Gladden
Farms II 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, that the development agreement between the Town of
Marana and FC/M Gladden II, L.L.C, attached to and incorporated by this reference in this
resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for
and on behalf of the Town of Marana.
IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and
authorized to undertake all other and further tasks required or beneficial to carry out the terms,
obligations, and objectives of the aforementioned agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 7th day of March, 2006.
Mayor Ed Honea
ATTEST:
APPROVED AS TO FORM:
Jocelyn C. Bronson, Town Clerk
Frank Cassidy, Town Attorney
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GLADDEN FARMS II DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIs DEVELOPMENT AGREEMENT ("this Agreement") is made by and between the TOWN
OF MARANA, an Arizona municipal corporation (the "Town"), and FC/M GLADDEN II, L.L.C., an
Arizona limited liability company (the "Developer"). The Town and the Developer are
collectively referred to in this Agreement as the "Parties," each of which is sometimes
individually referred to as a "Party."
RECITALS
General Background
A. The Developer owns approximately 633.28 acres of land located in the Town limits, as
depicted on the map attached as Exhibit "A" and legally described on Exhibit "B" (the
"Property").
B. The Developer proposes to develop the Property as Gladden Farms II ("Gladden II").
C. The Developer and the Town desire that Gladden II be developed in a manner consistent
with the development regulations that now apply to the Property, as amplified and supplemented
by this Agreement.
D. The Town and the Developer acknowledge that the development of the Property pursuant
to this Agreement will result in planning and economic benefits to the Town and its residents.
E. The Developer has made and by this Agreement will continue to make a substantial
commitment of resources for public and private improvements on the Property.
F. The Parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. S 9-500.05,
Land Use Background
G. The following are among the development regulations that now apply to the Property
(collectively, the "Development Regulations"):
i) The Town's written rules, regulations, procedures, and other policies relating to the
development of land, whether adopted by the Mayor and Councilor by Town Staff
(collectively the "Marana Development Code").
ii) The future development of the Property shall be subject to the Gladden Farms II
Specific Plan as adopted by the Town on March 7, 2006, as amended from time to time (the
"Specific Plan").
H. The Property consists of all land included in the Specific Plan except for the
approximately 2.39 acre parcel located at the southwest comer of Moore and Postvale Roads.
I. This Agreement is consistent with the portions of the Town's General Plan applicable to
the Property.
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Transportation Infrastructure Background
J. Tangerine Road west ofI-lO (referred to in this Agreement as "Tangerine Farms Road") is
currently anticipated to be realigned and extended by the Town to improve the geometry of the
freeway interchange and to serve as a major arterial roadway for northwest Marana.
K. The right-of-way for Tangerine Farms Road immediately west of Gladden II, through the
development project referred to in this Agreement as "Gladden I" and depicted in the subdivision
plat entitled "Gladden Farms" recorded in the Pima County Recorder's office at Book 55 of
Maps and Plats Page 60, has been dedicated to the Town.
L. Tangerine Farms Road from Moore Road on the west through Gladden I and Gladden II
and extending to its intersection with 1-10 is currently anticipated to be constructed by a
municipal improvement district or other special district to be established by the Town for that
purpose.
M. The Town believes that unless and until Tangerine Farms Road is constructed and open to
the public, enabling vehicular access from Gladden I and Gladden II via a realigned Tangerine
Farms Road that does not feed onto the frontage road and instead leads directly to the 1-10
interchange, the transportation infrastructure in the vicinity of Gladden II may not be sufficient
to accommodate intensive development ofthe Property.
Water Background
N. The provisions of this Agreement relating to water service are entered into and authorized
by Title 14 of the Marana Town Code as it may be amended from time to time (the "Marana
Municipal Water Code").
O. The Developer desires for the Town to provide water service to Gladden II.
P. To secure water service from the Town for Gladden II, the Developer proposes to install
those certain water infrastructure improvements referred to in this Agreement as the "Developer-
Installed Water Facility."
Q, The Developer desires that the Town take ownership of, operate, and service the
Developer-Installed Water Facility
R. The Town is willing to accept the Developer-Installed Water Facility and permit it to be
connected to the Town water system provided it meets Town standards and the work is done in
accordance with Town requirements.
S. Water and sewer infrastructure is currently anticipated to be connected through Gladden II
as needed to serve the "Commercial Property" as defined in the Tangerine Commerce Park
Right-of-Way Exchange and Development Agreement recorded in the Pima County Recorder's
office at Docket 12706, Page 1578. This Commercial Property is referred to in this Agreement as
the "Tangerine Commerce Park Commercial Property," and the owner obligated by that
agreement to pay for the water and sewer upgrades to serve the Tangerine Commerce Park
Commercial Property is referred to in this Agreement as the "Tangerine Commerce Park
Commercial Property Owner,"
Development Impact Fees Background
T. The Town has adopted certain development impact fees for roads, public parks, gravity
water storage, renewable water resources and water system infrastructure, pursuant to A.R.S.
~ 9-463.05.
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U. The Developer will be entitled to credit pursuant to A.R.S. S 9-463.05(B)(3) toward the
payment of the Town's adopted development impact fees based on the required dedication of
lands and improvements for public parks, arterial roadways, water gravity storage and renewable
water resources and water system capacity infrastructure provided or to be provided by the
Developer in connection with the development of Gladden II.
V. The Parties desire to address development impact fee credits applicable to Gladden II,
based on currently anticipated developer-financed infrastructure.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and
agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Development.
1.1. Development review. The Property shall be developed in a manner consistent with the
Development Regulations and this Agreement, which together establish the basic land uses, and
the densities, intensities and development regulations that apply to the land uses authorized for
the Property. Provided that the Developer is not in default in any obligations ofthe Development
Regulations or this Agreement, and further provided that the construction of Tangerine Farms
Road is substantially complete in accordance with paragraph 1.3 below, upon the Developer's
compliance with the applicable development review and approval procedures and substantive
requirements of the Development Regulations, the Town agrees to issue such permits or
approvals for Gladden II as may be requested by the Developer.
1.2. Total residential units. The total number of residential units of all types in Gladden II
shall not exceed 2,539.
1.3. No building permits until completion of Tangerine Farms Road Improvements. The
Developer shall not submit to the Town applications for any commercial or residential building
permits on the Property until the following infrastructure improvements are substantially
complete, open to the public and dedicated to the Town:
1.3.1. The final four-lane divided Tangerine Farms Road from the east boundary of
Gladden I to the east boundary of Gladden II, either by a district pursuant to Article 2 and
Article 3 or by the Developer pursuant to Article 4, and
1.3.2. Construction of a realigned Tangerine Farms Road east of the Property, enabling
vehicular traffic to access the Tangerine/I-l 0 interchange directly, without the need to use the
frontage road.
1.4. Zoning and plat conditions. The Developer agrees to fulfill all conditions outlined in the
Development Regulations.
1.5. Avigation easement and noise attenuation. Developer shall record an avigation easement
and shall provide noise attenuation as part of the design and construction of homes in Gladden II
so that a maximum interior noise level of 45 decibels is achieved within each home.
1.6. Determination of no hazard to air navigation. Developer shall submit an FAA 7460 form
to the Federal Aviation Administration and receive a "Determination of No Hazard to Air
Navigation" from the Federal Aviation Administration before any construction or alteration of
greater height than an imaginary surface extending outward and upward at a 100 to 1 slope for a
horizontal distance of20,000 feet from the nearest point of the nearest runway of the Airport,
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1.7. Archaeological/historic resources. Development of the Property shall meet all Town
requirements set forth in Title 2 and Title 20 of the Marana Development Code related to
Archeological and Historic Resources.
1.8. Site built construction and building permits. All construction on any portion of the
Property, whether sold in bulk or individually, whether subdivided or not, shall be site built and
shall require building permits.
1.9. Compliance with residential design standards. All residential construction on any portion
of the Property shall be constructed in accordance with the then current residential design
standards as adopted by the Town of Marana, and any construction for which building permits
have not yet been applied for as of the effective date of the residential design standards shall
comply with those residential design standards,
Article 2. Bond-Funded Public Infrastructure Improvements
2.1. Applicability, The provisions of Article 2 and Article 3 shall only apply and become
effective if the Town establishes not later than December 31, 2007 a municipal improvement
district or other special district for the purpose of financing and constructing the Tangerine
Farms Road Improvements.
2.2. Tangerine Farms Road Improvements. The Town shall construct and thereafter maintain
approximately 3.8 miles of Tangerine Farms Road as a four-lane divided roadway from the
Tangerine Road/I-I0 interchange and extending westward to Moore Road, with curbs and
gutters, median breaks and turn lanes for proposed major street intersections, street lights, a
multi-use pathway, a 16" potable water main, a 8" non-potable water main, landscaping, and
other associated public improvements (collectively the "Tangerine Farms Road Improvements").
Article 3. Participation in Tangerine Farms Road Improvements Cost
3.1. Definitions. The following definitions shall apply to this Article:
3.1.1. The "Allocated Assessment" is (C -;- F) x T, where C is the Gladden II Property
Frontage, F is the Total Frontage, and T is the Total Improvement Cost. The "Allocated
Assessment" for Gladden II may be some other amount established and agreed upon in
writing by and among the Parties.
3.1.2. "Frontage" is distance in linear feet measured from the centerline of the right-of-
way for the Tangerine Farms Road Improvements,
3.1.3. The "Gladden II Property Frontage" is the frontage of Gladden II along the
Tangerine Farms Road Improvements.
3,1.4. "Individual Parcel Improvement Costs" are costs that predominately benefit an
individual parcel, such as traffic signals, conduit for future traffic signals, water and sewer
improvements to the extent necessary to serve an individual parcel and that do not benefit all
of the land fronting on the Tangerine Farms Road Improvements, the proposed park
underpass within Gladden I and undergrounding of Cortaro Marana Irrigation District
facilities for purposes other than road crossings.
3.1,5. The "Total Improvement Cost" is the construction cost of the Tangerine Farms
Road Improvements together with all related engineering, legal, financial and incidental
costs, The Total Improvement Cost shall not include Individual Parcel Improvement Costs.
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3.1.6. The "Total Frontage" is the total combined frontage of all privately owned land on
both sides of the Tangerine Farms Road Improvements.
3.2. Assessment allocation. The Developer shall pay the Allocated Assessment and the
Individual Parcel Improvement Costs attributable to Gladden II not later than the cash collection
period (see A.R.S. S 48-590(B)) or, if not so paid, they will be assessed against Gladden II as set
forth in paragraph 3.3 below.
3.3, Bonds. If the Allocated Assessment and the Individual Parcel Improvement Costs
attributable to Gladden II are not paid during the cash collection period (see A.R.S,
S 48-590(B)), the Town shall sell municipal bonds with a term of at least 15 years for purposes
of amortizing the Total Improvement Cost over the term of the bond and for funding or
reimbursing the Total Improvement Cost. Thereafter Gladden II shall be assessed the principal
and interest on the Allocated Assessment and the Individual Parcel Improvement Costs
attributable to Gladden II as required for repayment of the bonds.
3.4. Assessment reallocation. Upon division or subdivision of Gladden II, the Town shall
reallocate the assessment among the parcels in direct proportion to the benefit received by each
parcel.
3.5. Consent to assessment. The Developer hereby agrees to execute a standard improvement
district waiver agreement prepared by the Town's bond counsel, in which the Developer (among
other things) (i) consents to a levy of assessment for the Allocated Assessment; (ii) waives any
and all objections to formation of an assessment district to implement the terms of this
Agreement; and (iii) agrees to take all steps necessary to levy and confirm assessments against
Gladden II.
Article 4. Developer Funding of Infrastructure if District is Not Formed
4.1. Applicability, The provisions of this Article shall only apply and become effective if the
Town fails to establish a municipal improvement district or other special district for the purpose
of financing and constructing the Tangerine Farms Road Improvements not later than
December 31, 2007, as provided in Article 2 and Article 3.
4.2. Developer-Constructed Tangerine Farms Road Improvements. The Developer shall
construct and thereafter dedicate to the Town at no cost Tangerine Farms Road as a four-lane
divided roadway within the Tangerine Farms right-of-way dedicated pursuant to paragraph 6.1
below, with curbs and gutters, median breaks and turn lanes for proposed major street
intersections, street lights, a multi-use pathway, a 16" potable water main, a 8" non-potable water
main, landscaping, and other associated public improvements, and including connection and
transition to the existing paved two-lane Tangerine Road immediately east of the Property
(collectively the "Developer-Constructed Tangerine Farms Road Improvements").
4.3, CFD financing. Nothing in this Article shall preclude funding of the Developer-
Constructed Tangerine Farms Road Improvements with a CFD formed pursuant to Article 6.
Article 5. Water
5.1. Conversion of irrigation water rights. Within sixty days after the effective date of this
Agreement or sixty days after the Property ceases to be used for farming, whichever occurs last,
the Developer shall file all necessary documentation to the Arizona Department of Water
Resources (ADWR) to convert all irrigation water rights for the Property to Type I non-irrigation
water rights.
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5.2. Transfer of water rights to the Town. Within sixty days after approval of any final plat
for Gladden II, the Developer shall file all necessary documentation to transfer to the Town, in a
manner prescribed by ADWR, all water rights on lands dedicated to the Town by that final plat.
On lands not dedicated to the Town, the Developer shall transfer extinguishment credits to the
Town, in a manner prescribed by ADWR, upon request by the Town.
5.3. Water service. The Town shall provide a designation of assured water supply, will
provide actual water service to the Property, and will provide a "will serve letter" for the
property at Developer's request.
5.4. Non-potable system. In compliance with the Northwest Marana Area Plan, the
Developer shall develop and construct a secondary non-potable irrigation system, dedicated to
the Town, to distribute non-potable water throughout the Property consistent with the Town's
non-potable water system policy as it exists at the time the water improvements are constructed,
5.5. Cortaro-Marana Irrigation District ("CMID"), The Developer will work with CMID to
enter into a formal agreement concerning the construction and maintenance of necessary
irrigation systems and well sites to perpetuate the ability for CMID to have their users irrigate as
necessary as well as the under-grounding of CMID canals at the Developers Cost.
5.6. General provisions relating to water service.
5.6.1. Developer installation of the Developer-Installed Water Facility, The Developer
shall at its own expense design and install the water infrastructure improvements required to
serve Gladden II, and such additional and oversized water infrastructure improvements the
Town reasonably determines necessary, funded by the Town or other parties, as shown on
water plans prepared by Developer and approved by the Town (the "Facility Plan"). The
water infrastructure improvements depicted on the Facility Plan are referred to in this
Agreement as the "Developer-Installed Water Facility," and shall conform to the design
standards of the City of Tucson Water Department and the Marana Municipal Water Code
and special specifications and details as approved by the Town and by this reference made a
part of this Agreement. The Facility Plan shall include a plan note identifying the Developer-
Installed Water Facility as a new water facility and shall show any and all alterations to the
existing water system. Construction and installation of the Developer-Installed Water Facility
in accordance with the Facility Plan, including without limitation all labor, materials,
equipment, supplies, and tools required for the construction and installation, is referred to in
this Agreement as the "Water Work."
5.6.2. Water Work by licensed contractor, The Water Work shall be performed by a
contractor properly licensed by the State of Arizona as determined by the Arizona Registrar
of Contractors. In addition to any other contractor's license classifications required by the
Arizona Registrar of Contractors, the contractor shall hold contractor's license classifications
A, A-12 and A-16.
5.6.3. Payment of connection fees. Before any service connections are made from the
Town's water system to the Developer-Installed Water Facility, the Developer shall pay to
the Town the connection fees and any other fees required by the Marana Municipal Water
Code,
5,6.4. Anticipated cost per meter. The total charge for each %" x %" water meter to be
installed on the Property is currently anticipated to be $2,367 per meter, which includes a
$500 connection charge (Town Code ~ 14.7.2(B)), a $400 installation charge (Town Code
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~ 14.7.2(B)), and the $1,467 gravity storage and renewable resource development impact fee
(Marana Ordinance No. 2005.25), but does not include the $864 water system infrastructure
development impact fee (Marana Ordinance No. 2005.25). The applicable development
impact fees are further addressed in Article 8. The amounts set forth in this paragraph do not
include the $75 security deposit (Town Code ~ 14.7.2(B)), which will be owed by each
individual home purchaser upon establishment of service.
5.6.5. Developer-Installed Water Facility acceptance by Town. No service connections
shall be made from the Town's water system to the Developer-Installed Water Facility until
the Developer-Installed Water Facility has been accepted by the Town in accordance with the
Marana Municipal Water Code.
5.6.6. Frontage requirement. Any property connecting onto a water main shall have a
minimum of fifteen feet of frontage on that main. A water easement or other utility easement
shall not constitute frontage for purposes of this paragraph.
5.6.7. Meter application requirements. A meter application will be accepted only if the
property to be served fronts the waterline. Only one water meter application will be allowed
per legal description unless the Developer can provide the Town with plans indicating the
type of improvement or development taking place on the land that justifies more than one
meter. If any portion of the property served by the water meter is sold, the owner of the
portion of land that fronts the water main shall have all rights associated with the water meter
unless other arrangements are made with and approved by the Town of Marana Water Utility
prior to the sale.
5.6.8. Developer's certification. By execution of this Agreement, Developer certifies that
it shall comply with the Facility Plan and all other specifications applicable to the Water
Work and agrees with and approves the location of all service lines as depicted on the
Facility Plan.
5.6.9. Termination for lack of Water Work. Approval of the Facility Plan shall lapse if
more than one year has passed since the date of the Facility Plan's approval and the Water
Work has not begun, or if the Water Work is discontinued for a period of one year.
5.7. Engineering and inspection of Water Work.
5.7.1. Registered civil engineer, The Developer shall employ a registered civil engineer
to design, layout, establish control lines for and certify the layout of the Water Work
according to the Facility Plan.
5.7.2. Town inspector's authority. Any inspector authorized by the Town shall have full
inspection authority over the Water Work.
5,7,3. Inspection provisions. The Developer shall furnish the Town's inspector with all
facilities reasonably necessary to inspect the Water Work. The Water Work shall be subject
to Town inspection at all times. Defective Water Work shall be corrected in a manner
satisfactory to the Town's inspector. Inspection by the Town is for the purpose of ensuring
compliance with plans and specifications only, The Town makes no guarantee as to the
safety or engineering soundness of plans prepared by Developer or any contractor.
5.7.4, Payment of Town inspector's overtime cost. If scheduling by Developer's
contractor reasonably requires the Town's inspector to work overtime, the Developer or
Developer's contractor shall pay the Town for any additional salaries, expenses or employee
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benefits relating to the overtime. For purposes of this paragraph, overtime is any time over 40
hours worked in a seven-day work period, any time over eight hours worked Monday
through Friday, and any time worked on weekends and legal holidays observed by the Town.
5.8. Preconstruction procedure for Water Work.
5.8.1. Request to begin construction. The Developer shall submit a written request to
begin construction to the Town five working days before the Water Work is to commence.
5.8.2. Construction permit. A construction permit for the Water Work shall not be issued
prior to the effective date of this Agreement.
5.8.3. Start and completion of the Water Work. No portion of the Water Work shall begin
until the Town has issued a construction permit specifying the starting date and a reasonable
time for completion.
5.8.4. Progress of the Water Work. The Water Work shall be commenced and carried on
at such points and in such order as may be directed by the Town.
5.8.5. Materials sampling and testing. Materials shall be available for sampling and testing
by the Town prior to being used in the Water Work. Materials that fail to meet Town
specification shall be removed from the site.
5.8.6. Permits and approvals. The Developer shall, at Developer's expense, obtain all
necessary permits and licenses for the Water Work, pay all fees and comply with all laws,
ordinances and regulations relating to the Water Work.
5.9. Construction of Water Work.
5.9.1. Developer's presence on site. The Developer, or Developer's designated agent,
shall be present at all times during performance of the Water Work. The name of the
Developer's designated agent and the contractor performing the Water Work shall be
furnished to the Town before the Water Work begins. Instructions given by the Town to the
designated agent shall be deemed to have been given to the Developer.
5.9.2. Competence and diligence. The Developer shall employ only competent and
efficient laborers, mechanics or artisans on the W ater Work, and the Developer agrees to
perform the Water Work diligently to complete the Water Work on or before the completion
date given in the notice to proceed.
5.9.3. Paving. The Developer shall identify and locate all water valves prior to paving
and set valve boxes to final grade after paving,
5.9.4. Alterations to the existing Town water system. The Developer shall, at Developer's
expense, make any and all alterations to the existing water system either on-site or off-site
necessitated by paving, drainage, or other improvements caused by the development of the
Property.
5,9,5. Worksite safety. The Developer shall require all contractors and subcontractors
performing any portion of the Water Work to comply with all safety requirements of the
Occupational Safety and Hazards Act as set forth by the Federal Government and as
implemented by the State of Arizona. The Developer or its contractors shall be solely
responsible for all fines or other penalties provided for by law for any violations of the
Occupational Safety Hazards Act.
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5.10. Dedication ofthe Developer-Installed Water Facility.
5.10.1. Transfer of the Developer-Installed Water Facility to the Town. Upon the Town's
final acceptance of the W ater Work, the Developer shall at no cost grant, bargain, sell,
convey, transfer and deliver to the Town the Developer-Installed Water Facility free and
clear of all liens, claims, charges or encumbrances.
5.10.2. Two-year warranty. The Developer guarantees the Water Work to be free from all
failures due to poor workmanship or materials for a period of two years from the date of the
Town's final acceptance of the Water Work.
5.10.3. Other conflicting construction prohibited. The Developer shall not construct or
allow the construction of any utility, building, or other improvement that would interfere
with the operation or maintenance of the Developer-Installed Water Facility.
5.10.4. Developer's obligation to maintain finished grade. The Developer guarantees that
all service lines, meters, and meter boxes on the Property will be to finished grade and that
Developer will remain responsible for raising or lowering said services as required until the
Property is fully developed.
5.10.5. Acceptance by the Town. The Town shall accept title to and take possession of
the Developer-Installed Water Facility when the Water Work has been completed to the
satisfaction of the Town. Subject to the Developer's continuing obligations under this
Agreement, the Town shall operate and service the Developer-Installed Water Facility after
taking over possession of it under this paragraph.
Article 6. Other Public Facilities and Infrastructure Requirements.
6.1. Road right-of-way dedications. The Developer shall dedicate to the Town the following
rights-of-way as shown on the right-of-way plans prepared by the Town's consulting engineer
most recently prior to the applicable dedication, If construction of a road through one of these
rights-of-way requires a realignment of its right-of-way through Gladden II, the Town and the
Developer shall cooperate to adjust the right-of-way boundaries provided that the total amount of
land within all of the right-of-way dedicated by the Developer shall remain substantially the
same. The Developer may make these dedications subject to and reserving to the Developer any
rights needed for purposes of obtaining possible future reimbursement from community facilities
district financing for the Developer's contribution of right-of-way or public infrastructure.
6.1.1. Not later than sixty days after the effective date of this Agreement, the right-of-
way for Tangerine Farms Road.
6.1.2. With the recording of the final block plat for Gladden II or within 60 days of
demand by the Town, the right-of-way for Moore Road.
6,1.3. With the recording of the final block plat for Gladden II or within 60 days of
demand by the Town, the right-of-way for Clark Farms Road.
6.2, Transportation improvements. The Developer shall fund the design and construction of
all transportation improvements the Town reasonably determines necessary to serve Gladden II,
and shall dedicate to the Town without cost any and all right-of-way necessary for these
transportation improvements, including without limitation the following (using street names as
set forth on Exhibit "C," attached):
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6.2.1. Mike Etter Boulevard. The Developer shall provide a four-lane divided cross-
section in a 110-foot right-of-way for the entire length of Mike Etter Boulevard.
6.2.2. Clark Farms Boulevard. The Developer shall build Clark Farms Boulevard as a
ISO-foot four-lane divided roadway through Gladden II.
6.2.3. Traffic signals. When deemed warranted by the Town (but in any event not later
than final release of assurances for the final subdivision within Gladden II), the Developer
shall pay the total estimated cost of the Town's design and construction of traffic signals at
the following intersections:
6.2.3.1. Tangerine Farms Road and Southfield Road.
6.2.3.2. Tangerine Farms Road and Mike Etter Boulevard.
6.2.3.3. Moore Road and Mike Etter Boulevard.
6.2.3.4. Mike Etter Boulevard and Southfield Road.
6.2.3.5. Mike Etter Boulevard and Pacheco Farms Road.
6.2.3.6. Clark Farms Boulevard and Pacheco Farms Road,
6.2.4. Approach lanes. The Developer shall provide two lanes of approach in the
following locations concurrently with the initial construction ofthe applicable roadway:
6.2.4.1. Southbound Southfield Road at Tangerine Farms Boulevard.
6.2.4.2. Northbound Southfield Road at Mike Etter Boulevard.
6.2.4.3. Southbound Pacheco Farms Road at Mike Etter Boulevard.
6.2.4.4. Northbound Pacheco Farms Road at Clark Farms Boulevard and the
southbound approach of the private driveway within Block 4 that aligns with Pacheco
Farms Road at Clark Farms Boulevard. The north and southbound approaches shall
consist of two lanes each, one of which shall be an exclusive left-turn lane and the other a
through/right-turn lane.
6.2.5. Turn lanes. The Developer shall design and construct the following turn lanes
concurrently with the initial construction of the applicable roadway:
6.2.5.1. A westbound left-turn lane and an eastbound right-turn lane on Moore Road
at its intersection with Mike Etter Boulevard.
6.2.5.2. An eastbound right-turn lane and a westbound left-turn lane on Mike Etter
Boulevard at its intersection with Southfield Road.
6.2,5.3. A westbound right-turn lane and an eastbound left-turn lane on Mike Etter
Boulevard at its intersection with Pacheco Farms Road.
6.2,5.4. Right-turn and left-turn lanes on both approaches of Clark Farms Boulevard
to its intersection with Pacheco Farms Road,
6.2.6. Other traffic studies and revised transportation improvements. The Developer shall
provide additional traffic studies during the platting and development plan process for
Gladden II, The Developer shall pay for and/or provide additional transportation
improvements and dedications the Town reasonably requires based on the findings of those
studies. The Town Engineer is authorized to waive, in writing, any transportation
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improvement required by this Article if a traffic study approved by the Town indicates that
Gladden II may be safely served without the waived transportation improvement.
6.3. Onsite private recreational facilities. Private recreational facilities shall be constructed
on a site of a size not smaller than required by the Marana Development Code. Site and facility
design and phasing shall be approved by the Town Parks & Recreation Director and Planning
Director.
6.4. Fire protection. Before a certificate of occupancy is issued for any dwelling unit on the
Property, the Developer shall have completed or shall provide evidence to the Town's
satisfaction that Developer has made a diligent effort to complete the process of having the
Property annexed into the Northwest Fire District.
6.5. Contribution in lieu of school land dedication. The Developer or its assignee shall
contribute $1,200 per residential unit (the "School Fee") due and payable to the Marana Unified
School District upon the issuance of the residential building permit. If the Town or the Marana
Unified School District adopts an impact fee for schools in the future, the School Fee shall be
credited against those future school impact fees.
6.6. Bank protection. In compliance with Town Ordinance No. 99.02, Developer shall pay
$500.00 per acre of affected Property for bank protection. The total obligation of Developer for
Gladden II is $316,640 ($500 x 633.28 affected acres). Developer shall pay this obligation on a
pro-rata basis for each block, calculated and established by the Town in connection with
approval of the final block plat for Gladden II, before the Town approves for that block either a
subdivision into individual residential subdivision lots or a coIrllnercial development plan.
6.7, Sewer oversizing to serve offsite property. Sewer service for the Tangerine Commerce
Park Commercial Property is currently anticipated to occur by extending sewer lines proposed to
be installed in Gladden II to the Tangerine Farms Right-of-Way and in future Tangerine Farms
Road.
6.7.1. Sewer extension and oversizing. Unless the Town first receives the notice
described in subparagraph 6.7.2 below, when development proceeds in Gladden II,
Developer shall install sewer lines of a size sufficient to serve the Tangerine Commerce Park
Commercial Property to the future north right-of-way line of Tangerine Farms Road at the
southern boundary of Gladden II, provided that the Tangerine Commerce Park Commercial
Property Owner pays in advance to the Developer all costs associated with providing sewer
service to the extent necessary to serve the Tangerine Commerce Park Commercial Property,
and specifically the following:
6.7.1.1. To the extent oversizing is required for the Tangerine Commerce Park
Commercial Property, the incremental additional cost of oversizing Gladden II's sewer to
serve the Tangerine Commerce Park Commercial Property, and
6.7.1.2. Any cost for the extension of the sewer beyond where it would be needed to
serve residential development within Gladden II, and
6.7.1.3. Any other sewer costs reasonably imposed by Pima County Wastewater
Management to serve the Tangerine Commerce Park Commercial Property and that
would not otherwise be incurred within Gladden II.
6.7.2. Alternative sewer service. If the sewer lines in Gladden II have not yet been
oversized (see subparagraph 6.7.1 above) and the Tangerine Commerce Park Commercial
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Property Owner provides written notice to the Town that an alternate method for obtaining
sewer service on the Tangerine Commerce Park Commercial Property has been secured,
subparagraph 6.7.1 above shall not apply.
6.8. Compliance with state and federal laws and regulations. No approval, permit or
authorization ofthe Town authorizes the Developer to violate any applicable federal or state laws
or regulations, or relieves the Developer from the responsibility to ensure compliance with all
applicable federal and state laws and regulations, including but not limited to the Endangered
Species Act and Clean Water Act.
Article 7. Infrastructure Financing
7.1. Responsibilitv for financing infrastructure improvements. Upon request of the
Developer, the Town staff shall process any request for a community facilities district ("CFD")
pursuant to A.R.S. S 48-701, et seq, and the Town's Guidelines for Establishment of Community
Facilities Districts, and the Town Council shall reasonably consider such request for a CFD,
Article 8. Development Impact Fees and Credits
8.1. General provisions applicable to the determination of all development impact fees and
credits. For purposes of determining the correct amount of any development impact fees and
credits, the following general rules shall apply:
8.1.1. Calculation of credits based on total number of lots anticipated as of the time of
payment. Development impact fee credits for development impact fees that are charged only
to residential lots shall be determined by dividing the total value of applicable credits for
Gladden II by the total then-anticipated number of lots in Gladden II, determined based on
the actual number oflots shown on final subdivision plats for Gladden II and the Town's best
estimate of the number of lots anticipated in blocks not yet subdivided into individual lots.
8.1.2. Actual construction and dedication as condition of credit. Credits shall be given
against development impact fees only to the extent the Developer's construction and
dedication or transfer of rights to the Town as anticipated in the calculation of the credit has
been completed or is in progress to the reasonable satisfaction ofthe Town.
8.1.3. Future fee revisions. If the Town amends its development impact fees applicable to
Gladden II, the fee per lot shall be the then-applicable fee minus the credit calculated for that
particular fee.
8,1.4. Future impact fees. If the Town adopts an impact fee not addressed in this Article 8
for the same infrastructure for which Developer has dedicated land or made improvements or
paid a voluntary fee pursuant to this Agreement, Developer shall be entitled to a credit as set
forth in A.R.S. S 9-463.05, and the credit shall be calculated in a manner consistent with this
Article 8.
8.1.5. Credits for other improvements not addressed in this Agreement. Any credits for
infrastructure construction and dedication by the Developer beyond what is addressed in this
Agreement shall be determined in accordance with A.R.S. S 9-463.05(B) as it may be
amended from time to time.
8.2, Arterial roadway development impact fees and credits.
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8.2,1. Total value. Of the improvements addressed in this Agreement, the Developer shall
be entitled to credits against the Town's arterial roadway development impact fees for the
following:
8.2.1.1. Tangerine Farms Road. The full principal amount (not including interest) of
the Developer's contributions to the Tangerine Farms Road Improvements Cost (see
Article 3 above), including the value of the Tangerine Farms Road right-of-way as
determined in the development impact fee study supporting the establishment of the
arterial roadway development impact fee.
8.2.1.2. Clark Farms Boulevard. The value of road right-of-way conveyed to the
Town and the actual construction costs for Clark Farms Boulevard (see paragraph 6.2.2
above).
8.2.2. Current fee. As of the date of this Agreement, the Town's arterial roadway
development impact fee that would apply to Gladden II before the credit is $5,941 per lot.
8.3. Park development impact fees and credits.
8.3.1. Total value. The Developer does not currently anticipate providing any park lands
or undertaking any park construction in connection with Gladden II that is addressed in the
Town's park impact fee ordinance (Ordinance No. 2005.11).
8.3.2. Credit per lot. There is no credit against the Town's park development impact fee
for Gladden II as a result of any of the improvements addressed in this Agreement.
8.3,3. Current fee. As of the date of this Agreement, the Town's park development
impact fee is $2,884 per lot.
8.4. Gravity storage and renewable resource development impact fees and credits.
8.4.1. Total value. The Developer does not currently anticipate providing any gravity
water storage or renewable water resources in connection with Gladden II.
8.4.2. Credit per lot. There is no credit against the Town's of gravity water storage and
renewable water resources impact fee for Gladden II as a result of any of the improvements
addressed in this Agreement.
8.4.3. Current fee. As of the date of this Agreement, the Town's gravity storage and
renewable resource development impact fee is $1,467 for each single family residential lot
served by a VB" x %" meter.
8.5. Water system infrastructure development impact fees and credits.
8.5.1. Current fee. As of the date of this Agreement, the Town's water system
infrastructure development impact fee is $864 for each single family residential lot served by
a VB" x %" meter.
8.5.2. Credit. Developer is entitled to full credit against the Town's water system
infrastructure impact fee as a result of providing the following water system infrastructure
capacity improvements:
8,5.2,1. Two potable water wells, each capable of supplying peak daily demand; and
8.5.2.2. One reservoir providing 125% of average daily demand plus fire flow; and
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8.5.2.3. Booster station capacity capable of serving peak daily demand plus fire flow
or peak hour demand, whichever is greater.
Article 9. Cooperation and Alternative Dispute Resolution.
9.1. Appointment of representatives. To further the commitment ofthe Parties to cooperate in
the progress of the Development, the Town and the Developer each shall designate and appoint a
representative to act as a liaison between the Town and its various departments and the
Developer. The initial representative for the Town (the "Town Representative") shall be the
Development Services Administrator, and the initial representative for the Developer shall be
Dean Wingert or a replacement to be selected by the Developer. The representatives shall be
available at all reasonable times to discuss and review the performance of the Parties to this
Agreement and the development of the Property.
9.2. Timing. The Town acknowledges the necessity for prompt review by the Town of all
plans and other materials (the "Submitted Materials") submitted by the Developer to the Town
hereunder or pursuant to any zoning procedure, permit procedure, or other governmental
procedure pertaining to the development of the Property and agrees to use its best efforts to
accomplish such prompt review of the Submitted Materials whenever possible.
9.3. Default; remedies. If either Party defaults (the "Defaulting Party") with respect to any of
that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party") shall
be entitled to give written notice in the manner prescribed in Article 11 to the Defaulting Party,
which notice shall state the nature of the default claimed and make demand that such default be
corrected. The Defaulting Party shall then have (i) twenty days from the date of the notice within
which to correct the default if it can reasonably be corrected by the payment of money, or (ii)
thirty days from the date of the notice to cure the default if action other than the payment of
money is reasonably required, or if the non-monetary default cannot reasonably be cured within
sixty days, then such longer period as may be reasonably required, provided and so long as the
cure is promptly commenced within sixty days and thereafter diligently prosecuted to
completion. If any default is not cured within the applicable time period set forth in this
paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration
proceedings set forth in paragraphs 9.4 and 9,5 below. The Parties agree that due to the size,
nature and scope of the Development, and due to the fact that it may not be practical or possible
to restore the Property to its condition prior to Developer's development and improvement work,
once implementation of this Agreement has begun, money damages and remedies at law will
likely be inadequate and that specific performance will likely be appropriate for the enforcement
of this Agreement. This paragraph shall not limit any other rights, remedies, or causes of action
that either party may have at law or in equity.
9.4. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Developer and the Town, If the Parties cannot
agree upon the selection of a mediator within seven days, then within three days thereafter the
Town and the Developer shall request the presiding judge of the Superior Court in and for the
County of Pima, State of Arizona, to appoint an independent mediator. The mediator selected
shall have at least five years' experience in mediating or arbitrating disputes relating to real
{00001636.DOC /7}
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estate development. The cost of any such mediation shall be divided equally between the Town
and the Developer. The results of the mediation shall be nonbinding on the Parties, and any Party
shall be free to initiate arbitration after the moratorium,
9.5. Arbitration, After mediation (paragraph 9.4 above) any dispute, controversy, claim or
cause of action arising out of or relating to this Agreement shall be settled by submission of the
matter by both Parties to binding arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules and in a manner consistent with the Arizona
Uniform Arbitration Act, A.R,S, S 12-501 et seq., and judgment upon the award rendered by the
arbitrator(s) may be entered in a court having jurisdiction. The Town and the Developer shall
each appoint one impartial arbitrator, and the arbitrators shall appoint a third arbitrator to act as
chairman pursuant to Section R-13 of the American Arbitration Association Commercial
Arbitration Rules.
Article 10. Protected Development Rights
To ensure reasonable certainty, stability and fairness to the Developer and the Town for a
reasonable period of time, the Developer and the Town agree that the zoning designations, uses,
and densities that now apply to the Property, as amended by this Agreement, shall remain in
effect and shall not be changed for a period of seven years after the first issuance of commercial
or residential building permits on the Property (see paragraph 1.3 above) without the agreement
of the Developer,
Article 11. Notices and Filings.
All notices, filings, consents, approvals and other communications provided for in or given in
connection with this Agreement shall be validly given, filed, made, transmitted or served if in
writing and delivered personally or sent by registered or certified United States mail, postage
prepaid, if to (or to such other addresses as any Party may from time to time designate in writing
and deliver in a like manner):
To the Town:
Town of Marana
Town Manager
11555 W. Civic Center Drive Bldg A-3
Marana, Arizona 85653-7006
To the Developer:
Dean Wingert
FC/M Gladden II, L.L.C.
333 E. Wetmore Suite #250
Tucson, Arizona 85705-1748
Article 12. General Terms and Conditions.
12.1. Term. This Agreement shall become effective upon its execution by all the Parties and
the effective date of the resolution or action of the Town Council approving this Agreement (the
"Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless
sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall
thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the
Parties determine that a longer period is necessary for any reason, the term of this Agreement
may be extended by written agreement of the Parties. The Developer shall be entitled to
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terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
12.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that
right or remedy, and no waiver by the Town or the Developer of the breach of any covenant of
this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
12.3. Attorney's fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any breach or default of
this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury. Nothing in the
use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 9.5
above, requiring disputes to be resolved by binding arbitration.
12.4. Counterparts. This Agreement 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.
12.5. Headings. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction of the provisions of this Agreement.
12.6. Recitals. The Recitals set forth at the beginning of this Agreement are hereby
acknowledged and confirmed to be accurate.
12.7. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been
incorporated in this Agreement by reference with the same force and effect as if fully set forth in
the body of this Agreement.
12.8. Further acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter contemplated by this
Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good
faith and process promptly any requests and applications for plat or permit approvals or
revisions, and other necessary approvals relating to the development of the Property by the
Developer and its successors.
12.9. Time Essence. Time is ofthe essence for purposes of this Agreement.
12.10. Successors. All of the provisions of this Agreement shall inure to the benefit of and be
binding upon the successors, assigns and legal representative of the Parties except as provided in
paragraph 12.11 below. Unless and until the Town consents to an assignment of rights and
obligations under this Agreement, the Town may enforce the Developer's obligations under this
Agreement against the predecessor and successor in interest, the assignor and assignee, and the
principal and legal representative. If there is a complete assignment of all rights and obligations
of the Developer under this Agreement and the Town approves the assignment, the liability of
the assigning party under this Agreement shall terminate effective upon the assumption of those
liabilities by the assignee. The Town may not unreasonably withhold, delay or condition its
approval of assignment under this paragraph. A transfer of all or any portion of Gladden II into a
land trust with the Developer as beneficiary is not an assignment under this paragraph, and the
Town hereby expressly consents to such a transfer into a land trust.
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12.11. Termination upon sale to end purchaser or user. This Agreement shall terminate
without the execution or recordation of any further document or instrument as to any lot which
has been finally subdivided and individually (and not in "bulk") leased (for a period of longer
than one year) or sold to the end purchaser or user and thereupon such lot shall be released from
and no longer be subject to or burdened by the provisions of this Agreement.
12.12. No partnership and third parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Developer and the Town. No term or provision of this Agreement is intended to, or
shall be for the benefit of any person, firm, organization or corporation not a party to this
Agreement, and no such other person, firm, organization or corporation shall have any right or
cause of action under this Agreement.
12.13. Other instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
12.14. Imposition of duty by law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
12.15. Entire agreement. This Agreement constitutes the entire agreement between the
Parties pertaining to the subject matter of this Agreement. All prior and contemporaneous
agreements, representation and understanding of the Parties, oral or written, are hereby
superseded and merged in this Agreement.
12.16. Amendments to agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plat and Specific Plan as amended by this
Agreement. Within ten days after any amendment to this Agreement, it shall be recorded in the
office of the Pima County Recorder by and at the expense of the Party requesting the
amendment.
12.17. Names and plans. The Developer shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Developer in connection
with the Property or any plans; provided, however, that in connection with any conveyance of
portions of the infrastructure as provided in this Agreement such rights pertaining to the portions
of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to
the appropriate governmental authority.
12.18. Good standing; authority. The Developer represents and warrants to the Town that it is
duly formed and validly existing under the laws of Arizona and is authorized to do business in
the state of Arizona. The Town represents and warrants to the Developer that it is an Arizona
municipal corporation with authority to enter into this Agreement under applicable state laws.
Each Party represents and warrants that the individual executing this Agreement on its behalf is
authorized and empowered to bind the Party on whose behalf each such individual is signing.
12,19. Severability. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, 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 Agreement, this Agreement shall remain
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GLADDEN FARMS II DEVELOPMENT AGREEMENT -17 - 3/1/20062:09 PMM FJC
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
Agreement.
12.20. Governing law. This Agreement 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 9.5, requiring disputes to be resolved by binding
arbitration.
12.21. Interpretation. This Agreement has been negotiated by the Town and the Developer,
and no party shall be deemed to have drafted this Agreement for purposes of construing any
portion of this Agreement for or against any party.
12.22. Recordation. The Town shall record this Agreement 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.
12.23. No developer representations. Except as specifically set forth in this Agreement,
nothing contained in this Agreement shall be deemed to obligate the Town or the Developer to
complete any part or all of the development of the Property.
12.24, Approval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
12.25. Force majeure. If any Party shall be unable to observe or perform any covenant or
condition of this Agreement by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute a default under this Agreement so long as such
Party shall use its best effort to remedy with all reasonable dispatch the event or condition
causing such inability and such event or condition can be cured within a reasonable amount of
time. "Force majeure," as used in this paragraph, means any condition or event not reasonably
within the control of such party, including without limitation, "acts of God," strikes, lock-outs, or
other disturbances of employer/employee relations; acts of public enemies; orders or restraints of
any kind of government of the United States or any state thereof or any of their departments,
agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots;
epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests, restraints of government and of people; explosions; and partial or entire failure of
utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee
relations or to settle legal or administrative proceedings by acceding to the demands of the
opposing Party or Parties, in either case when such course is in the judgment of and unfavorable
to a Party shall not constitute failure to use its best efforts to remedy such a condition.
12.26. Conflict of interest. This Agreement is subject to A.R.S. ~ 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
{OOO01636.00C / 7}
GLADDEN FARMS II DEVELOPMENT AGREEMENT
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN:
OWNER:
THE TOWN OF MARANA, an Arizona
municipal corporation
FC/M GLADDEN II, L.L.C., an Arizona
limited liability company
By: FOREST CITY LAND GROUP, INC., an
Ohio corporation, its Manager
By:
Ed Honea, Mayor
By:
Dean Wingert, Senior Vice President
Date:
Date:
ATTEST:
Jocelyn C. Bronson, Clerk
ApPROVED AS TO FORM:
Frank Cassidy, Town Attorney
STATE OF ARIZONA )
ss
County of Pima )
The foregoing instrument was acknowledged before me on this _ day of February, 2006 by
Dean Wingert, Senior Vice President of FOREST CITY LAND GROUP, INC., an Ohio corporation,
Manager of FC/M GLADDEN II, L.L.C. an Arizona limited liability company, on behalf of the
LLC.
My commission expires:
Notary Public
{00001636.00C /7}
GLADDEN FARMS II DEVELOPMENT AGREEMENT
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Gladden Farms II
Specific Plan
Order No.: 21008977-JK - 0
EXHISIT "S"
That part of Section 35, Township 11 South, Range 11 East, Gila and Salt River Meridian,
Pima County, Arizona, lying South and West of the Southwest right of way line of the
relocated Tucson-Picacho Highway, Federal Interstate Project 94, as it existed on May 15,
1950;
EXCEPT THEREFROM the right of way for Moore Road, formerly Grier Road, over the North
30 feet thereof, as shown on the map recorded in Book 2 of Road Maps, Pages 1 26 through
129;
AND EXCEPT THEREFROM the following two well sites belonging to Cortaro Water Users'
Association:
Marana Well No. 13
That portion of the Southeast quarter of the Southeast quarter of Section 35, Township 11
South, Range 11 East, Gila and Salt River Meridian, Pima County, Arizona, particularly
bounded and described as follows:
BEGINNING at a point which is 62.5 feet Northerly and 25 feet Westerly from the Southeast
corner of said Section 35;
THENCE Westerly 62.5 feet from and parallel to the South boundary line of said Section 35,
a distance of 26.8 feet to a point which intersects the Northeast right-of-way line of the
Cortaro Water Users' Lateral No. 6-1/2;
THENCE in a Northwesterly direction along the said right-of-way line of Cortaro Water Users'
Lateral No. 6-1/2 a distance of 109.3 feet to a point;
THENCE Easterly, 150 feet from and parallel to the South boundary line of said Section 35,
a distance of 92.25 feet to a point;
THENCE Southerly 25 feet from and parallel to the East boundary line of said Section 35, a
distance of 87.5 feet to the POINT OF BEGINNING;
Marana Well No. 14
That portion of the Southeast quarter of the Northeast quarter of Section 35, Township 11
South, Range 11 East, Gila and Salt River Meridian, Pima County, Arizona, particularly
bounded and described as follows:
BEGINNING at a point which is 938.65 feet Westerly and 50 feet Northerly from the East
quarter corner of said Section;
THENCE Westerly 50 feet from and parallel to the East and West center line of said Section
35, a distance of 135 feet to a point;
THENCE Northerly 1 073.65feet from and parallel to the East line of the said Southeast quarter
of the Northeast quarter of Section 35, 100 feet to a point;
Order No.: 21008977-JK - 0
THENCE Easterly 150 feet from and parallel to the East and West center line of said Section
35, 135 feet to a point;
THENCE Southerly 938.65 feet from and parallel to the East line of the said Southeast quarter
of the Northeast quarter of Section 35, 100 feet to the POINT OF BEGINNING;
AND EXCEPT THEREFROM the following portion conveyed to Cortaro Marana Irrigation District
in the Deed recorded in Docket 1968, Page 585:
BEGINNING at a point on the North line of said Section 35, said point being South 89049'00"
West, 591.06 feet from the Northeast corner of said Section 35;
THENCE South 49037'00" East along the Southwesterly right of way line of Interstate 1 0,
357.77 feet;
THENCE South 49053'00" East, 419.03 feet to the East line of said Section 35;
THENCE South 0015'00" East, 32.81 feet along said East line;
THENCE South 49053'00" West, 448.44 feet;
THENCE North 49037'00" West, 386.97 feet to the aforesaid North line of Section 35;
THENCE North 89049'00" East, 38.44 feet to the POINT OF BEGINNING;
AND EXCEPT THEREFROM a strip of land 110 feet in width conveyed to the State of Ariozna,
by and through its State Highway Commission in the Deed recorded in Docket 2003, Page
408 described as follows:
BEGINNING at the point of intersection of the existing Southwest right of way line of the
existing Casa Grande-Tucson Highway with the East line of Section 35, from whence the
Northeast corner of said Section 35 bears Northerly 359.70 feet;
THENCE North 49053'00" West along said existing Southwest right of way line, a distance
of 325.42 feet;
THENCE North 49037'00' West continuing along said existing Southwest right of way line,
a distance of 229.27 feet, to a point on the North line of said Section;
THENCE Westerly along said North section line, a distance of 169.15 feet;
THENCE South 49037'00" East 357.77 feet;
THENCE South 49053'00" East 419.03 feet to a point on the aforesaid East line of Section
35;
THENCE Northerly along East section line, a distance of 144.38 feet, to the POINT OF
BEGINNING;
AND EXCEPT THEREFROM the East 50 feet of the South 35 feet of the Southeast quarter of
said Section 35, conveyed to Pima County in the Deed recorded in Docket 6411, Page 1237.
EXHIBIT C
250' ROW.
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90' RO.W.
110' RO.W.
90' RO.W.
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Project Boundary
Adjacent Parcels
250' RO.W.
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