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Home My WebLink AboutResolution 2006-101 fifth amendment to gladden farms development agreement , I F. ANN RODRIGUEZ, RECORDER RECORDED BY: C D DEPUTY RECORDER 0224 PEl DOCKET: PAGE: NO. OF PAGES: SEQUENCE: SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 RES 12841 3657 2 20061300686 07/07/2006 15:38 MAIL AMOUNT PAID $ 8.00 -.J MARANA RESOLUTION NO. 2006-101 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF THE FIFTH AMENDMENT TO THE GLADDEN FARMS DEVELOPMENT AGREEMENT. WHEREAS, the Mayor and Council find that the terms and conditions of the Fifth 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, that the Fifth Amendment to the Gladden Farms Development Agreement, 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. BE IT FURTHER RESOLVED that the various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this resolution. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 5th day of July, 2006. fld~ Mayor Ed Honea ATTEST: ....\,""rr"'I~ ~'_\. OF ~ ~ ~ ~ '\~,'\"'''''',~ I<> -, ~ :::O~ ~~"t- ~ ....1' ~ CORPORATE 'i. Ji' ~ :: ! 000 i _ - =SEAL! :: :; 'i ~!'Olt ~ ~ , ~ ~ "f ~"II"Il"\~ ~ ~ f:i,Z '\ C!I '~ ~/II'.I"\\~ j, ~i~ 'F"~ ',~i :l. it:~i :::3t ij~! ~::~ I'I)~I {00002290.DOC /} FJClcds 6/22/06 Exhibit A to Marana Resolution No. 2006-101, entitled FIFTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT, by and between the Town of Marana and GLADDEN FOREST, L.L.C., was recorded separately on July 7, 2006, at Docket );). CZ Lf J , Page 3 bS ~ in the Office of the Pima County Recorder. :1, ~~~II :~~, t.,l, II 1- ~~ :~ ~~, ~;':l ~"' ,":~l ~1; F. ANN RODRIGUEZ, RECORDER RECORDED BY: C D DEPUTY RECORDER 0224 PEl DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 12841 3659 4 20061300687 07/07/2006 15:38 SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 AMEN MAIL AMOUNT PAID $ 20.00 FIFTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT THIS FIFTH AMENDMENT TO THE GLADDEN FARMS DEVELOPMENT AGREEMENT ("this Fifth 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 Fifth Amendment as the "Parties," either of whom is sometimes individually referred to as a "Party." RECITALS A. The Developer is the developer and original owner of the development project commonly known and referred to in this Fifth Amendment 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. Paragraph 2.2 of the First Amendment required the Developer to construct the portion of Tangerine Farms Road within Gladden Farms ifby January 1,2006 the Town failed to form an improvement district and issue bonds for the construction of Tangerine Farms Road. D. With the Developer's cooperation and support, the Town on June 6, 2006 adopted a resolution of intent to construct Tangerine Farms Road by an improvement district designated the "Town of Marana, Arizona Tangerine Farms Improvement District" (the "Tangerine ID"). E. Due to the Developer's cooperation and support in the Town's continued pursuit of the Tangerine ID, the Developer is not in default regarding the construction of Tangerine Farms Road, and the Parties now modify the Developer's obligations to accommodate the currently anticipated schedule for construction of Tangerine Farms Road by the Tangerine ID. F. 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"). G. Paragraph 1.1 of the Second Amendment obligates the Developer to dedicate at least ten acres of land within Block 9 of Gladden Farms (the "Ten-Acre School Site") to Marana Unified School District (MUS D) for a future elementary school site. H. The Developer has not conveyed the Ten-Acre School Site to MUSD because MUSD has not yet been prepared to accept the dedication. i00002242.DOC /4) - 1 - FIFTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 6/30/2006 I I :53 AM :I 111:' Ej: ,i:1 1. ~!~ "j tl~"" il:;) I~:' ,.,,) ~~:l , 1-\ 1. The Town soon anticipates adopting assessments for the Tangerine ID, and the Parties desire to accommodate the conveyance of the Ten-Acre School Site before a Tangerine ID assessment is placed on it. J. The Parties have 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") and the Fourth Amendment to Gladden Farms Development Agreement dated April 19, 2005, and recorded in the Office of the Pima County Recorder in Docket 12537, Page 3948 (the "Fourth Amendment"). The Original Agreement as amended by the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment is referred to collectively in this Fifth Amendment as the "Gladden Farms DA." K. Paragraph 4.2 of the First Amendment allows the Town to withhold reviews and/or building permits from all except Phase One of Gladden Farms (that is, Gladden Farms Blocks 3, 4, 5, 6, 10, 11 and 12) if the Developer defaults in the performance of its obligations under the Gladden Farms DA. L. The Parties wish to modify the Gladden Farms DA to clarify the extent to which the Town will do development reviews and issue building permits in light of the current status and anticipated schedule of Tangerine Farms Road construction. M. The Developer has entered into one or more agreements to sell Blocks of Gladden Farms to third party home builders, who have requested modification of the default provision as it relates to the Tangerine Farms Road construction, together with an assurance that the Developer is otherwise not in default under the Gladden Farms DA. N. The Town finds that the adverse effects of default in the construction of Tangerine Farms Road through Gladden Farms can be remedied by the Developer's compliance with this Fifth Amendment. o. This Fifth Amendment is a "development agreement" under A.R.S. ~ 9-500.05. P. This Fifth Amendment is consistent with the portions of the Town's General Plan that apply to Gladden Farms. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Fifth Amendment, the Parties hereby agree as follows: Article 1. Tangerine Farms Road Improvements 1.1. Deferral of Developer's Tangerine Farms Road Construction Obligation. The date listed in First Amendment paragraph 2.2 is hereby changed from January 1, 2006 to January 1, 2008. 1.2. No Default. The Developer is not in default under the Gladden Farms DA. 1.3. Developer Obligation to Construct Tangerine Farms Road. Pursuant to paragraph 2.2.1 of the First Amendment, the Developer is required to construct the portion of Tangerine Farms Road located within Gladden Farms "in phases in conjunction with the overall project." The Parties hereby clarify and modify the Developer's Tangerine Farms Road construction as follows: [00002242.DOC /4) - 2 - FIFTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 6/30/2006 I I :53 AM i~~il <I' t:j ~;ll ~, ~;l '~~ '.:~!~ b E:~ ~i 1.3.1. The construction of Tangerine Farms Road shall not be considered a default with respect to and shall not be required as a condition to the Town undertaking development reviews or issuing building permits on any Block of Gladden Farms except Block 7, Block 13, Block 14, Block 15, Block 16, Block 22, the residential portion of Block 24 and Block 25, all of which are collectively referred to in this Fifth Amendment as the "Constrained Blocks." 1.3.2. The Town will undertake development reviews and will allow site infrastructure improvements, such as grading and utility, roadway and drainage construction, on the Constrained Blocks, as long as these development activities do not unreasonably interfere with the construction of Tangerine Farms Road. 1.3.3. The Town shall not issue building permits for model homes, homes or other permanent structures on the Constrained Blocks until the entirety of Tangerine Farms Road within Gladden Farms is completed and opened to the public. Article 2. Ten-Acre School Site 2.1. Dedication. If not already dedicated by the Developer to MUSD, the Ten-Acre School Site shall be conveyed by the Developer to the Town in trust for MUSD not later than the day before a Tangerine ID assessment is scheduled to be imposed on the Ten-Acre School Site. Such conveyance will constitute full satisfaction of any obligation the Developer may have to either the Town or MUSD to dedicate, donate or otherwise convey ten acres within Block 9 of Gladden Farms to MUSD. Article 3. General Terms and Conditions. 3.1. Effect on Gladden Farms DA. Except as expressly modified in this Fifth Amendment, the terms, provisions and obligations of the Gladden Farms DA shall remain in full force and effect. 3.2. Counterparts. This Fifth 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 the counterparts and the 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. Severability. If any provision of this Fifth Amendment is declared void or unenforceable, it shall be severed from the remainder of this Fifth 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 Fifth Amendment, this Fifth 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 Fifth Amendment. 3.4. Governing law. This Fifth 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. [00002242.DOC / 4 J - 3 - FIFTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 6/30/2006 11 :53 AM 1. 2 :I~l ~1 1. I~;l ::i ~::, ~::~ i 3.5. Interpretation. This Fifth Amendment has been negotiated by the Town and the Developer, and no Party shall be deemed to have drafted this Fifth Amendment for purposes of construing any portion of this Fifth Amendment for or against any Party. 3.6. Recordation. The Town shall record this Fifth 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 ofInterest. This Fifth Amendment is subject to A.R.S. S 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties have executed this Fifth Amendment as of the last date set forth below their respective signatures. THE TOWN: THE DEVELOPER: THE TOWN OF MARANA, an Arizona municipal corporation By: iJ ~ Ed HO~ Mayor Date:1-~?~t1? GLADDEN FOREST, L.L.c., an Arizona limited liability company By: FOREST CITY LAND GROUP, INC., an Ohio corporation, its managing member BY~~~ Dean Wingert, Senior Vi Presid ATTEST: Date: 7. t:)s" . ~ ss: Ii :~. ~,j /~e :1. County of Pima The foregoing instrument was acknowledged before me on )Lll~ 5) Zf1Jl.p by Dean Wingert, Senior Vice President of FOREST CITY LAND GROUP, INC., ;h Ohio corporation, managing mem ., an Arizona limited liability company, on behalf of the L.L.C. '. NO:;~::N.U~na Seal: "l..c==~ires ylltl fuLWL EMBER 15. 2009 Notary Public ~:,:l .,~ 'd ~') rt:'~" n"'"j ~~) !ill:", (00002242,DOC /4) - 4 - FIFTH AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 6/30/2006 11 :53 AM