The URL can be used to link to this page

Home My WebLink AboutResolution 2011-007 second amendment to foothills development agreement for tapestry properties MARANA RESOLUTION NO. 2011-07 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE SECOND AMENDMENT TO THE FOOTHILLS DEVELOPMENT AGREEMENT WITH TAPESTRY PROPERTIES III, L.L.C., REGARDING THE FOOTHILLS (TAPESTRY) DEVELOPMENT PROJECT WHEREAS, the Mayor and Council find that the terms and conditions of the Second Amendment to Foothills Development Agreement with Tapestry Properties III, L.L.C., 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 Second Amendment to Foothills Development Agreement between the Town of Marana and Tapestry Properties III, 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 4 day of January, 2011. Mayor E Honea ATTEST: APPROV D AS TO FORM: celyn ronson, Town Clerk Uank 6ssidy, Town Att ey OF Af r % SEAL ; •" :` ✓ ,9 ®z®4zit1`,``, F. ANN RODRIGUEZ, RECORDER IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Recorded By: MRB yo v PP1 . DEPUTY RECORDER C' O SEQUENCE: 20110200122 1562 �� NO. PAGES: 5 ' w� z SMARA 0112 012 011 9 ItIZO� TOWN OF MARANA ®c� AAG 11:29 TOWN CLERK Q' MAIL 11555 W CIVIC CENTER DR AMOUNT PAID: $11.00 MARANA AZ 85653 SECOND AMENDMENT TO FOOTHILLS DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS SECOND AMENDMENT To FOOTHILLS DEVELOPMENT AGREEMENT (this "Second Amendment ") is made by and between the TowN of MARANA, an Arizona municipal corporation (the "Town ") and TAPESTRY PROPERTIES III, L.L.C., an Arizona limited liability company (the "Developer "). The Town and the Developer are collectively referred to in this Second Amend- ment as the "Parties," any one of which is sometimes individually referred to as a "Party." RECITALS A. The Parties entered into the Foothills Development Agreement on December 5, 2006, and it was recorded in the Pima County Recorder's office on December 6, 2006 at Docket 12945, Page 5263 (the "Original Agreement "). B. The Original Agreement was amended by the First Amendment to Foothills Devel- opment Agreement dated December 2, 2008, and recorded in the Pima County Recorder's office on December 30, 2008, at Docket 13464, Page 394 (the "First Amendment "). C. This Second Amendment is a "development agreement" under A.R.S. § 9- 500.05 re- lating to and affecting the development of the Property, as described in the Original Agreement. D. The Town and the Developer acknowledge that the development of the Property pur- suant to this Second Amendment will result in planning and economic benefits to the Town and its residents. E. The Developer has made, and by this Second Amendment will continue to make, a substantial commitment of resources for public and private improvements on the Property. F. This Second Amendment is consistent with the portions of the Town's General Plan that apply to the Property. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Second Amendment, the Parties hereby agree as follows: Article 1. Effect on the Original Agreement and the First Amendment. 1.I. Modification The provisions of the Original Agreement and the First Amendment shall remain in effect except as specifically modified by the provisions of this Second Amend- ment. Article 2. Modification of Land Use Restrictions. 2.1. General The average lot size in paragraph 1.1 of the Original Agreement is reduced from 144,000 square feet (3.3 acres) to 87,120 square feet (2.0) acres and the minimum lot size in paragraph 1.1 of the Original Agreement is reduced from 65,340 square feet (1.5 acres) to {00024557.DOC /} SECOND AMENDMENT TO FOOTHILLS DA - 1 - 12/27/201011:32 AM 43,560 square feet (1.0 acre). Except for lot size, the development standards for residential de- velopment under the Town's R -36 zoning classification shall apply to this area. 2.2. Medium - Density Residential Area The size of the Medium - Density Residential Area identified in paragraph 1.2 of the Original Agreement, as amended by paragraph 2.3 of the First Amendment, is increased from 35.7 acres to 38.2 acres. The size of the Medium - Density Resi- dential Area may be increased by up to an additional 3.82 acres upon written approval of the Town's Planning Director, so long as the total number of lots in the Medium - Density Residential Area does not exceed 63. Article 3. Proposition 207 Waiver Developer hereby waives any claim it may have (if any) under the Private Property Rights Protection Act adopted by initiative in 2006 as "Proposition 207," including specifically but without limitation any potential claim under A.R.S. § 12 -1134, for any change or reduction in the Developer's right to use, divide, sell or possess the Property resulting from this Second Amend- ment. Article 4. General Terms and Conditions. 4.1. Term This Second Amendment 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 Sec- ond Amendment (the "Effective Date "). The term of this Second Amendment shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall auto- matically terminate and shall thereafter be void for all purposes on the termination date of the Original Agreement. 4.2. Incorporation of Provisions and Boilerplate All provisions of the Original Agree- ment and the First Amendment not modified by this Second Amendment are incorporated here by this reference. The interpretation of incorporated provisions and boilerplate shall not be af- fected by the fact that some provisions and boilerplate are, for convenience or emphasis, restated or reiterated in this Second Amendment. 4.3. Entire Agreement The Original Agreement as amended by the First Amendment and this Second Amendment constitute the entire agreement between the Parties pertaining to the subject matter of the Original Agreement, the First Amendment and this Second Amendment. All prior and contemporaneous agreements, representation and understanding of the Parties, oral or written, are hereby superseded and merged in the Original Agreement as amended by the First Amendment and this Second Amendment. 4.4. Authoritv. Each Party represents and warrants that the individual executing this Sec- ond Amendment on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 4.5. Interpretation This Second Amendment has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Second Amendment for purposes of construing any portion of this Second Amendment for or against any party. 4.6. Recordation The Town shall record this Second Amendment in its entirety in the of- fice of the Pima County Recorder no later than ten days after it has been executed by the Town and the Developer. {00024557.DOC /} SECOND AMENDMENT TO FOOTHILLS DA -2- 12/27/2010 11:32 AM 4.7. No Developer Representations Except as specifically set forth in this Second Amendment, nothing contained in this Second Amendment shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 4.8. Approval If any Party is required pursuant to this Second Amendment to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 4.9. Conflict of Interest This Second Amendment is subject to A.R.S. § 38 -511, which provides for cancellation of contracts in certain instances involving conflicts of interest. IN WITNESS WHEREOF, the Parties have executed this Second Amendment as of the last date set forth below their respective signatures. TOWN: DEVELOPER: THE TOWN OF MARANA, an Arizona TAPESTRY PROPERTIES III, L.L.C., an municipal corporation Arizona limited liability company By: FOOTHILLS MARANA, L.L.C., an Arizona limited liability company, a By: _ d Member Ed Honea, yo V / By: TOWN WEST REALTY, INC., an Date: �-' Cl / Arizona corporation, i s�1 By:l ATTEST: Date: / J celyn ronson, Clerk By: GEORGIO .L.C., an Arizona limited liabili ompany, a By: '2'z APPROVE s TO F Ge or . e Cos mi, Manager and Member r / Fr k Cassi , Town Attorne Date: By: FUTURE OF NEW MEXICO, L.P., a Delaware limited partnership, a Member Peter Fasseas, General Partner Date: / h V//' {00024557.DOC /} SECOND AMENDMENT To FOOTHILLS DA -3 - 12/27/2010 11:32 AM o m SEAL ZPATRICK tate of Arizona STATE OF ARIZONA NTY an. 29, 2093 ss County of Pima ) T he foregoing instrument was acknowledged before me on , 201 , by -. . 4-;, > C -- t <- ',/, a A h as of TOWN WEST REALTY, INC., an Arizona corporation, Manager of FOOTHILLS MARANA, L.L.C., an Arizona lim- ited liability company, a Member of TAPESTRY PROPERTIES, III, L.L.C., an Arizona limited liabil- ity company, on behalf of the LLC. My commission expires: " Notary Pu giO PAULET OFFIC C N OTARY PUBLIC - State oPIMA COUNTY STATE OF ARIZONA ) My Comm, moires Ja ss County of Pima ) The foregoing instrument was acknowledged before me on f 20 , by George Costantini, Manager and Member of GEORGIo L.L.C., an Arizona limited liability com- pany, a Member of TAPESTRY PROPERTIES,II I, L.L.C., an Arizona limited liability company, on behalf of the LLC. My commission expires: - Notary IWic PAULE ZPATRICK STATE OF ARIZONA ) NOTARY P COUNTY O f Arizona ss e mycomm, Expires Jan. 29,2093 County of Pima ) The foregoing instrument was acknowledged before me on 10 , 20 1 , by Peter Fasseas, General Partner of FUTURE OF NEW MEXICO, L.P., a Delaware limited partnership, a Member of TAPESTRY PROPERTIES, III, L.L.C., an Arizona limited liability company, on behalf of the LLC. My commission expires: � Notary ublic {00024557.DOC /} SECOND AMENDMENT TO FOOTHILLS DA -4- 12/27/2010 11:32 AM