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HomeMy WebLinkAboutResolution 2004-024 first amendment to gladden farms development agreementMARANA RESOLUTION NO. 2004-24 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF A FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT WITH GLADDEN FOREST, L.L.C. AND DECLARING AN EMERGENCY. WHEREAS, the Town of Marana is authorized to enter into development agreements pursuant to A.R.S. § 9-500.05; and WHEREAS, the Mayor and Council of the Town of Marana find that entering into the First Amendment to 'Gladden Farms Development Agreement with Gladden Forest, L.L.C., concerning the Gladden Farms development project will promote the public health, safety and welfare by facilitating orderly development that pays its fair share of costs toward public services needed to serve the development. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, approving and authorizing the Mayor to execute the First Amendment to Gladden Farms DevelOPment Agreement with Gladden Forest, L.L.C., concerning the Gladden Farms development project in the form attached as Exhibit A to this Resolution, and authorizing the Town Manager and Town staff to undertake all other tasks required to carry out the terms, obligations and objectives of the development agreement. IT IS FURTHER RESOLVED that it is necessary for the preservation of the peace, health, and safety of the Town of Marana that this resolution become immediately effective; therefore, an emergency ~s hereby declared to exist and this resolution shall be effective immediately upon its passage and adoption. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 17th day of February, 2004. celyn2~ Bronson, Town Clerk F. ANN RODRIGUEZ, RECORDER RECORDED BY: l'~ D"'....OTY RECORDER 6545 PE4 DOCKET: 12242 PT~: 1055 N~_ OF PAGES: 10 SEQUENCE: 20040340345 02/20/2004 AMEN 14:07 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 PICKUP AMOUNT PAID $ 9.50 FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("this Agreement") 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 Agreement as the "Parties" and are sometimes individually referred to as the "Party. " RECITALS A. The Developer owns the development project commonly known and referred to in this Agreement as "Gladden Farms," which is the land that is the subject of the document entitled "DEVELOPMENT AGREEMENT BETWEEN TOWN OF MARANA, ARIzONA, FIDELITY NATIONAL TITLE AGENCY, INC. AND GLADDEN FARMS, L.L.C." recorded in the Pima County Recorder's office at Docket 11738, Page 1900 (the "Original Agreement"). B. Developer is the successor in interest to GLADDEN FARMS, L.L.C., a Nevada limited liability company, the Developer under the Original Agreement. C. The proposed development of Gladden Farms is depicted on a final block subdivision plat entitled "Gladden Farms Blocks 1 thru 25 and A thru F," as recorded in the Pima County Recorder's office at Book 55, Page 60 of Maps and Plats (the "Gladden Farms Block Plat"). In this Agreement, the term "Gladden Farms Block" followed by a number refers to the corresponding numbered block as shown on the Gladden Farms Block Plat. D. The Gladden Farms Block Plat dedicated approximately fifty acres to the Town for Tangerine Farms Road right-of-way. E. The Town has acquired all improvements and has received an assignment of lease for certain Arizona State Land Department lands located adjacent to Gladden Farms Blocks 13 and 14, where the Town plans to develop a regional park and museum referred to in this Agreement as the "Heritage Park." F. The Town is scheduled to consider the formation of a community facilities district encompassing Gladden Farms, to finance the construction and/or acquisition of public infrastructure within and benefiting Gladden Farms. This community facilities district is referred to in this Agreement as the "CFD." G. The Parties desire to amend the Original Agreement to clarify and modify its provisions and to resolve additional issues and concerns relating to the development of Gladden Farms. H. The Developer and the Town desire that Gladden Farms be developed in a manner consistent with the Original Agreement, as amplified, clarified, modified and supplemented by this Agreement. 1. 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. .-. z 2 i! -;; z 5 ,- :::J< FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE 1 oF8 /0 J. 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. K. 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. ~ 9-500.05. L. This Agreement is consistent with the portions of the Town's General Plan applicable to the Property. 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. Heritage Park and Gladden Farms Regional Park 1.1. Gladden Farms Drive. Not later than December 31,2004, the Developer shall complete the full construction of Gladden Farms Drive as depicted on the Gladden Farms Block Plat. 1.2. Heritage Park Road. Not later than December 31, 2004, the Developer shall, at no cost to the Town: 1.2.1. Dedicate a sixty-foot wide public right-of-way for "Heritage Park Road," extending from the intersection of Tangerine Farms Road and Gladden Farms Drive southward to a point to be agreed upon by the Parties at about the middle of the western boundary of Gladden Farms Block 14, the total right-of-way consisting of approximately one acre of commercially-zoned Gladden Farms Block 14. 1.2.2. Construct Heritage Park Road within the right-of-way described in paragraph 1.2.1 above as a 32-foot wide, two-lane roadway, with appropriate turning lanes. 1.3. Utilities. Not later than December 31, 2004, the Developer shall extend public water main and sewer services, and provide an open trench for "dry" utilities, to a point to be agreed upon by the Parties at about the middle of the western boundary of Gladden Farms Block 14. 1.4. Heritage Park Road Extension. The Developer shall construct an additional segment of Heritage Park Road from its southern terminus as constructed pursuant to paragraph 1.2.2 above to the park to be constructed by the Developer pursuant to paragraph 2.5.1 of the Original Agreement, which is referred to in this Agreement as "Gladden Farms Regional Park" and will be located in the land area between Gladden Farms Blocks 15 and 25 and south of Gladden Farms Block 15. This extension of Heritage Park Road shall be on property owned or leased by the Town adjacent to the western and southern boundary of Gladden Farms Block 14 and adjacent to the southern boundary of Gladden Farms Block 15, and may serve as both a park access road and for access to Gladden Farms Blocks 14 and 15. This segment shall be constructed concurrently with the Developer's construction of the improvements to Gladden Farms Regional Park. 1.5. No Additional Developer Contributions to the Heritage Park. Except to the extent set forth in this Article 1, the Developer shall not be required to contribute cash, impact fees, land, design work, or construction improvements for the Heritage Park and its facilities. 1.6. Gladden Farms Regional Park Construction. Paragraph 2.5.1.1 of the Original Agreement is hereby revised to require the Developer to begin construction of the Gladden Farms Regional Park improvements not later than the issuance of the building permit for the 600th home in Gladden Farms and to complete the construction within twelve months thereafter. FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE2oF8 ,.. ':.'U ....... 1.7. Initial Access to Gladden Farms Regional Park. The last sentence of paragraph 2.4.3 of the Original Agreement, establishing a construction deadline for the second phase of Lon Adams Road, is hereby deleted. Access to Gladden Farms Regional Park may be initially provided by the Heritage Park Road extension constructed pursuant to paragraph 1.4 above. Article 2. Construction of Tangerine Farms Road 2.1. Improvement District. As provided in paragraph 2.4.1 of the Original Agreement, the Town will move forward and use its best efforts to form a municipal improvement district ("ID") with all affected landowners for the construction of Tangerine Farms Road from the 1-10 interchange to Moore Road. The ID will finance the construction of the roadway as a four-lane facility within Gladden Farms and as either a four-lane or two-lane facility east of Gladden Farms. The Developer will support the formation of the ID and accept an assessment based on the benefit received by the land it owns within the ID. 2.2. No Improvement District. If by January 1,2006 the Town has been unable to form the ID and issue bonds through it for the improvements described in paragraph 2.1 above: 2.2.1. The Developer shall construct the portion of Tangerine Farms Road located within Gladden Farms in phases in conjunction with the overall project phasing as a four-lane divided roadway. 2.2.2. The Developer shall, to the extent reasonably possible, acquire all necessary right- of-way for and construct a "least possible cost" "temporary" paved Tangerine Farms Road extension from the east boundary of Gladden Farms to the existing western Tangerine Road terminus. 2.2.3. If the Developer is unable to acquire any of the right-of-way referred to in paragraph 2.2.2 above by negotiation, the Town shall consider condemning the necessary right-of-way. If the Town decides in its legislative discretion not to condemn the right-of- way, the Developer's obligations under paragraph 2.2.2 above shall terminate. If the Town condemns the right-of-way, the Developer shall reimburse the Town all costs of the condemnation and shall pay the judgment. 2.2.4. The Developer's cumulative obligations under paragraphs 2.2.2 and 2.2.3 above shall not exceed $1,000,000; provided, however, that Developer shall have no such obligations unless and until the occurrence of both of the following: 2.2.4.1. The CFD has sold a cumulative total of$3,000,000 in bonds. 2.2.4.2. The Town has adopted a transportation development impact fee to fund major arterial roadways in northwest Marana, and has included the cost to acquire and/or construct the ultimate four-lane divided Tangerine Farms Road between Gladden Farms and the existing western Tangerine Road terminus in the improvements to be funded with the development impact fee. 2.2.5. To the extent Developer in the performance of its obligations under paragraph 2.2.2 above either acquires right-of-way or constructs roadway that is consistent with and useable as part of the ultimate four-lane divided Tangerine Farms Road funded with the Town's transportation development impact fee (see paragraph 2.2.4.2 above), the Developer shall be reimbursed out of the transportation development impact fees. At least twenty-five percent of the northwest Marana transportation development impact fees 2 r: L : , = r .. 1 o FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE3oF8 collected by the Town shall be allocated to this reimbursement until the Developer has been reimbursed the full amount payable under this paragraph 2.2.5. 2.2.6. Paragraph 2.4.1 of the Original Agreement is superseded in its entirety by paragraph 2.2 of this Agreement. Article 3. Land Use and Block Plat Revisions 3.1. Cumulative Limitations on Number of Homes. A cumulative total of no more than 1850 homes shall be constructed in all of Gladden Farms, and a cumulative total of no more than 243 homes shall be constructed in Gladden Farms Blocks 7, 13, 14, 15 and 25. The word "homes" means single family and multi-family homes and apartment units for purposes of this paragraph. 3.2. Rezoning of Gladden Farms Blocks 7 and 13. The Town's Mayor and Council will consider, and the Town staff will promptly process, a request to rezone Gladden Farms Blocks 7 and 13 from R-16 to R-8, with conditions including that construction shall be limited to single- story homes and that the west 100 feet of Gladden Farms Block 7 shall be a landscaped buffer. 3.3. Other Minor Zoning Modifications. The Town's staff shall promptly process other minor zoning changes to revise R-6, R-7 and R-8 parcel locations to maintain consistency of product and provide reasonable neighborhood layout. 3.4. Partial Re-Subdivision. The Developer shall submit and, provided it meets all requirements of the Town's Land Development Code and the Original Agreement as modified by this Agreement, the Town shall approve a partial re-subdivision of the Block Plat and/or other appropriate documentation: 3.4.1. Moving the boundary line separating Gladden Farms Blocks 13 and 14 to coincide with the new right-of-way for the Heritage Park Road created pursuant to paragraph 1.2.1 above. 3.4.2. Eliminating the roadway between Gladden Farms Blocks 14 and 15 and showing it as abandoned in favor of the Developer pursuant to A.R.S. ~ 28-7203 in exchange for the right-of-way dedicated pursuant to the Block Plat and paragraph 1.2.1 above. 3.4.3. Eliminating Sandario Road south of Moore Road and showing it as abandoned in favor of the Developer pursuant to A.R.S. ~ 28-7203 in exchange for the right-of-way dedicated pursuant to the Block Plat and paragraph 1.2.1 above; provided, however, that ownership of the right-of-way shall not pass to the Developer until the Developer has performed its obligations under paragraphs 1.1, 1.2 and 1.3 above. 3.5. Phasing. The Developer shall prepare and the Town shall approve and record appropriate documentation executed by all owners of land in Gladden Farms deleting general note 17 relating to phasing. Future phasing of the development of Gladden Farms is subject to change and may be amended upon the approval of the Development Services Administrator. Article 4. Other Development Issues 4.1. School Sites. The two elementary school sites within Gladden Farms are currently planned to be located within Gladden Farms Block 9 and upon Gladden Farms Blocks 18 and 20. Fina110cations are subject to the approval of the Marana Unified School District and the Town Development Services Administrator. The Developer shall dedicate a total of 20 acres to the Marana Unified School District at no cost. , , r =- ... .. " , o J FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE4oF8 4.2. Issuance of Permits. The Town will not withhold plat reviews or building permits within Gladden Farms as long as the Developer is performing its obligations under the Original Agreement as modified by this Agreement. If the Developer defaults in the performance of its obligations under the Original Agreement as modified by this Agreement, the Town may 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) until the default is cured. Nothing in this paragraph shall be interpreted as a limitation of the Parties' remedies under this Agreement. Article S. Cooperation and Alternative Dispute Resolution. 5.1. Dispute Resolution Procedures Superseded. Paragraph 4.3 of the Original Agreement is hereby deleted. 5.2. 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 paragraph 6.1 below 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 5.3 and 5.4 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. 5.3. 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 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. 5.4. Arbitration. After mediation (paragraph 5.3 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 in accordance with the rules of the American L i J FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGES OF8 Arbitration Association and 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. Article 6. General Terms and Conditions. 6.1. Notice. 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 either party hereto may from time to time designate in writing and deliver in a like manner): To the Town: Town of Marana Town Manager 13251 N. Lon Adams Road Marana, Arizona 85653 520-682-3401 520-682-9026 (Fax) To the Developer: Gladden Forest LLC 333 E. Wetmore Road, Suite 250 Tucson, Arizona 85705 Attn: Dean Wingert, Senior Vice President 520-888-3962 520-888-3198 (Fax) 6.2. 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 upon termination of the Original Agreement pursuant to paragraph 7.1 of the Original Agreement. 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. 6.3. Effect on Original Agreement. Except as expressly modified in this Agreement, the terms, provisions and obligations of the Original Agreement shall remain in full force and effect. 6.4. 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. 6.5. Good Standing: Authority. The Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of the state in which it was formed 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 FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE6oF8 ::.. z ~ Agreement on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 6.6. 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 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. 6.7. 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 5.4, requiring disputes to be resolved by binding arbitration. 6.8. 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. 6.9. 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. 6.10. Conflict ofInterest. This Agreement is subject to A.R.S. ~ 38-511, which provides for cancellation of contracts in certain instances involving conflicts of interest. [Remainder of page intentionally left blank.] ~ . L 1 o r o FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE 70F8 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE TOWN: THE DEVELOPER: THE TOWN OF MARANA, an Arizona municipal corporation By. ~ .B~rz:: Date: ''l-~ ATTEST: STATE OF ARIzONA ) ss County of Pima ) GLADDEN FOREST, L.L.c., an Arizona limited liability company By: Its Managing Member, Forest City Land Group, Inc., an Ohio corporation ~~~~ Dean Wingert, Vice resident Date: Z -/2 - C; ~ The foregoing instrument was acknowledged before me on by Dean Wingert, Vice President of Forest City Land Group, Inc., an Ohio c oration, Managing Member of GLADDEN FOREST, L.L.C., an Arizona limited liability company, on behalf of the L.L.C. My co~ission expires: It- -llP. Zt.::b5 \Cpl i . : z -, ,L FIRST AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 2/9/20045:23 PM PAGE8oF8 Consent and Joinder The undersigned holds legal title to that portion of Exhibit "A" as is identified as follows: I) all of Parcell except for Block 5, and II) all of Parcels 4 and 5. The sole beneficiary of the undersigned trust is Gladden Forest LLC. At the request of its beneficiary, the undersigned hereby consents to and joins in the foregoing Agreement for the purpose of causing the holder of legal title to the subject to be a party thereto. Date: February 11,2004 FIDELITY NATIONAL TITLE AGENCY, INC., An Arizon orporation as Trustee under Trust Number 30, 12, only and not in its corporate Capacity By: STATE OF ARIZONA) ) ss. COUNTY OF PIMA ) The foregoing instrument was acknowledged before me /~ofFebruary, 2004 by Martha L. Hill the Trust Officer of Fidelity National Title Agency, Inc., an Arizona corporation as Trustee under Trust 30,212. PltuflJ:)l t<./lbkf Notary Public My Commission Expires: OFFICiAL SEAL , WONETTA K. ABBEG NOT AI{Y PUBLIC-ARIZONA P!MA COUNTY omm. [xp__ Feb. 28,2007 .... "-i 2 ~...= - . ..... QBTUC\ 143971.1 Order No.: 40002925-T - E A EXHIBIT ileNE" PARCEL 1: Blocks 1 through 5, 7 through 9, 13 through 25 and A, B, C, E and F of Gladden Farms, according to the map recorded in Book 55 of Maps, Page 60, records of Pima County, . Arizona. PARCEL 2: Lots 1 through 141 and Common Areas "A" through "H" of Gladden Farms Block 11, according to the map recorded in Book 57 of Maps, Page 75, records of Pima County, Arizona. PARCEL 3: Lots 1 through 104, Block "A" and Common Areas "A through "K" of Gladden Farms Block 12, according to the map recorded in Book 57 of Maps, Page 76, records of Pima County, Arizona. PARCEL 4: Lots 1 through 114 and Common Areas" A" through "C" of Gladden Farms Block 6, according to the map recorded in Book 57 of Maps, Page 96, records of Pima County, Arizona. PARCEL 5: Lots 1 through 84 and Common Areas" A" through "C" of Gladden Farms Block 1 0, according to the map recorded in Book 57 of Maps, Page 97, records of Pima County, Arizona. r~ ;.~ ~~'-:"~' ;;..:.:-.:...... ...., .',t' ...... .~ i ~ = w