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HomeMy WebLinkAboutResolution 2004-011 development agreement with garden estates at dove mountainMARANA RESOLUTION NO. 2004-11 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT WITH GARDEN ESTATES AT DOVE MOUNTAIN, L.L.C., CONCERNING THE ESTATE LOTS AT TORTOLITA PRESERVE. 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 a development agreement with Garden Estates at Dbve Mountain, L.L.C., concerning the Estate Lots at Tortolita Preserve 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 a development agreement with Garden Estates at Dove Mountain, L.L.C., concerning the Estate Lots at Tortolita Preserve in the form attached as Exhibit A to this Resolution, and authorizing the Town Manager and Town staffto undertake all other tasks required to carry out the terms, obligations and objectives of the development agreement. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 20th day of January, 2004. Mayor B(~B~ StUTTON, JR. ATTEST: fJocelyn Sro;son; Town Clerk GARDEN ESTATES AT DOVE MOUNTAIN DEVELOPMENT AGREEMENT This Development Agreement (hereinafter "Agreement") is made by and between the Town of Marana, an Arizona municipal corporation (hereinafter "Town") and Garden Estates at Dove Mountain, L.L.C., an Arizona limited liability company (hereinafter "Developer"). RECITALS A. The Developer is the owner of approximately 73'acres of real property, within the corporate limits of the Town, as described in Marana Ordinance Number 2003.11 (hereinafter referred to as the "Property"). B. The future development of the Property shall be subject to the roles and regulations applicable to the Property, including but not limited to the following: i) Town of Marana General Plan, as ratified March 11, 2003. ii) The rezoning conditions ("Rezoning"), approved June 3, 2003 by Marana Ordinance Number 2003.11 and recorded in Pima County Recorder's Office at Docket 12071, Page 4503, adopting the Estates at Tortolita Preserve Specific Plan ("The Specific Plan"). iii) Conditions of the Developer's preliminary plat (the "Preliminary Plat"), approved January 20, 2004 by the Marana Town Council by Resolution Number 2004--06. iv) The final block plat (the "Final Plat"), to be approved in the future. v) The Marana Development Code (including the written roles, regulations, procedures and other policies relating to development of land, whether adopted by the Mayor and Council or by Town Staff) (hereinafter the "MDC"), collectively establishing, among other things, the type of land uses, location, density and intensity of such land uses, and community character of the Property, and providing for, among other things, the development of a variety of housing, commercial and recreation/open space opportunities. C. The Developer and the Town desire that the Property shall be developed in accordance with the Town of Marana General Plan, Rezoning, Preliminary Plat, Final Plat, Specific Plan and MDC, a s amplified and supplemented b y t his Agreement. T he parties acknowledge t hat t his Agreement i s intended t o b e consistent with t he foregoing, and operates t o t he benefit o f t he Town, the Developer and the public. 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 by, among other tlfings, requiring development of the Property consistent with the Town of Marana General Plan, Rezoning, Preliminary Plat, Final Plat, Specific Plan and MDC. E. The Developer intends to develop the Property in a manner that will include residential uses 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. § 9-500.05. AGREEMENT In consideration of the foregoing premises and the mutual promises and agreements set forth herein, the parties agree as follows: 1. Development Plans. 1.1 Development Review. The Property shall be developed in accordance with the Town approved Preliminary Plat, Final Plat, MDC, Specific Plan, Zoning and Town of Marana General Plan, which set forth the basic land uses, densities and intensities of such land uses as presently authorized for the Property and development regulations related thereto. Upon compliance by the Developer with the applicable development review and approval procedures as set forth in the Town of Marana General Plan and MDC and other Town Ordinances, rules, regulations and state laws, the Town agrees to approve or issue such permits, plans, specifications, and/or plats of or for the Property as may be requested by the Developer and wkich are consistent with the Town of Marana General Plan, Rezoning, Preliminary Plat, Final Plat, Specific Plan and MDC. 1.2 Zoning and Plat Conditions. The Developer agrees to fulfill all conditions outlined in the Specific Plan, Rezoning, Preliminary Plat and Final Plat for the Property. 1.3 Amendments to Agreement. The Town and the Developer agree to cooperate and in good faith pursue any amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in the Town of Marana General Plan, Rezoning, Preliminary Plat, Final Plat, Specific Plan and MDC. Any amendment to the Agreement shall be approved and recorded pursuant to Section 7.15 hereof. 1.4 Archaeological/Historic Resources. The development of the Property shall meet all Town requirements set forth in Title 2 and Title 20 relating to Archeological and Historic Resources. 1.5 Review of Building Permits. All residential dwelling units shall be site built. This subsection shall apply to all land within the Property, whether sold in bulk or individually, whether subdivided or not, and shall apply to each and every lot and shall nm with the land. 2. On-Site/Off-Site Infrastructure. 2.1 Domestic Water. The Developer will provide Domestic Water to the project by means of an onsite private water company. Improvements to the system and all necessary permits, including a certificate of assured water supply shall be the responsibility of the Developer. 2 2.2 Wastewater. The Developer will not provide a sewer system to serve the Property. Wastewater shall be processed using individual lot septic systems, which shall be designed and constructed at the sole cost and expense of each individual lot owner at the time of construction of the dwelling unit. 2.3 Fire Protection. Prior to issuance of the certificate of occupancy for any dwelling trait, the Developer shall have completed the process of having the Property annexed into a fire district. The fire. district must be capable of providing fire prevention, fire suppression and other emergency services, and must be approved by the Town, and such approval shall not be unreasonably withheld if not already annexed. 2.4 School Site. In lieu of a contribution of land for school sites (as agreed on by the School District), the Developer shall contribute a School Improvement Contribution Fee of $1,200 per residential lot. Such School Improvement Contribution Fee shall be due at the issuance of the building permit per residential unit. 2.._~5 Regional Public Park/Trail System. In lieu of dedication of land for a public park, the developer will contribute $1,400.00 per residential unit due at the issuance of the building permit. 2.._~6 Road Maintenance/Signage. The Town will maintain Moore Road to its highest standards including shoulder maintenance, crack control and repair, signage, cleaning, etc. It is acknowledged that the Moore Road sign on Dove Mountain Blvd. is too small and difficult to see, especially for northbound traffic and that the Town will work with the Developer to improve these conditions. 2.7 Regional Transportation. The Developer will contribute $2,500 per residential lot payable at the issuance of the building permit towards regional transportation improvements. 3_. Cooperation and Altemative Dispute Resolution. 3.~1 Appointment of Representatives. To further the commitment of the 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 (hereinafter "Town Representative") shall be the Development Services Administrator, and the initial representative for the Developer shall be Mark Hanshaw of Arcadis, Inc. 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. 3.2 Timing. The Town acknowledges the necessity for prompt review by the Town of all plans and other materials (hereinatler "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. 3._.}3 Default; Remedies. If either party hereto defaults (the "Defaulting Party") with respect to any of such party's obligations hereunder, then the other party hereto (the "Non- Defaulting Party") shall be entitled to give written notice in the manner prescribed in Section 8.1 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 (20) days fi.om the date of such notice within which to correct such default if it can reasonably be corrected by the payment of money, or (ii) thirty (30) days fi.om the date of such notice to cure such default if action other than the payment of money is reasonably required, or if any such non-monetary default cannot reasonably be cured within sixty (60) days, then such longer period as may be reasonably required, provided and so long as such cure is promptly commenced within such period and thereafter diligently prosecuted to completion. If any such default is not cured within the applicable time period(s) set forth above in this Section 3.3, then the Non-Defaulting Party shall be entitled to commence an action at law or in equity in the Pima County Superior Court. The parties hereto 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 the condition which existed 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 Section 3.3 shall not limit any other rights, remedies, or causes of action that either party may have at law or in equity. 4. Protected Development Rights~ A substantial commitment of resources have been made for public and private improvements such as but not limited to the water system, park improvements, roads, open spaces, trails and site work. Therefore, one of the purposes of this agreement is to establish legally protected rights for the development of the Property in a manner which is consistent with the Preliminary Plat, The Final Plat, the Plat Resolution, the Specific Plan, the Improvement Plan, the Grading Plan and the MDC, and this Agreement, in order to ensure reasonable certainty, stability and fairness to the Developer and the Town over the term of this Agreement. Toward this end, the Developer and Town agree that the zoning designations granted by the Specific Plan or MDC shall remain in effect and shall not be changed without the agreement of the Developer for the term of this Agreement. 4.1 Modifications. Despite everyone's b est intentions t o e nd u p with t he "perfect" plat/plans, mistakes will happen requiring adjustments of all kinds at both the Developer/Town level and lot owner/Town level. The Developer/Town agree that the need for all changes will be addressed promptly and fairly and will furthermore be handled at an administrative level at the Town. 5. Future Impact Fees. In the event the Town adopts an impact fee for the same infi-astmcture for which Developer has contributed land and/or made improvements and/or paid a voluntary fee pursuant to this Agreement, Developer shall be entitled to a credit for such contributions as set forth in A.R.S. § 9-463.05. Notices and Filings. 6.1 Manner of Serving. All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith 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 (or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner): 4 The Town: Town of Marana Town Manager 13251 N. Lon Adams Road Marana, Arizona 85653 With a copy to: Frank Cassidy, Esq. Town Attomey 13251 N. Lon Adams Road Marana, Arizona 85653 The Developer: Garden Estates at Dove Mountain, L.L.C. c/o Daniel H. O'Connell, P.C. 3573 E. Sunrise Drive, Suite 125 Tucson, Arizona 85718 7. General Terms and Conditions. 7.1 Tenn. This Agreement shall become effective upon its execution by all the parties and the taking effect of a duly adopted resolution of the Town's governing body approving the Agreement (the "Effective Date"). The term of the Agreement shall commence upon the Effective Date and, unless sooner terminated by the mutual consent of the parties, shall automatically tenuinate and shall thereafter be void for all purposes seven (7) years fi.om the date of the Agreement. If the parties determine that a longer period is necessary for any reason, the term of this Agreement may be extended by written acknowledgment executed by the parties. 7.2 Waiver. No delay in exemising any right or remedy shall constitute a waiver thereof, 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. 7.3 Attorney's Fees. In the event any party hereto finds it necessary to bring an action at law or other proceeding against any other party to enforce any of the terms, covenants or conditions hereof, or by reason of any breach of default hereunder, the party prevailing in any such action or other proceeding shall be paid all reasonable costs and reasonable attorneys' fees by the other party, all such costs and attorneys' fees shall be included therein, such fees to be set by the court and not by jury. 7.4 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 fi:om one or more counterparts may be removed fi.om 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. 7.5 Headings and Recitals. The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. The Recitals set forth at the beginning of this Agreement are hereby acknowledged and incorporated herein and the parties hereby confirm the accuracy thereof. 7.~6 Exhibits. Any exhibit attached hereto shall be deemed to have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. 7.__~7 Further Acts.. Each of the parties hereto shall execute and deliver all such documents and perform all such 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. 7.8 Time of Essence. Time is of the essence of this Agreement. 7.9 Successors. All of the provisions hereof shall inure to the benefit of and be binding upon the successors, assigns and legal representative of the parties hereto, except as provided in Section 7.10 below. Notwithstanding the foregoing, to the extent permitted by law, the Developer's fights hereunder may only be assigned by a written instrument, agreed to by all of t he parties t o t he Agreement hereto a nd recorded i n t he O ~cial Records o f P ima County, Arizona, expressly assigning such rights, and no obligation of the Developer hereunder shall be binding upon anyone owning any right, title or interest in the Property unless such obligation has been specifically assumed in writing or unless othenvise required by law. The Town understands that the Developer may create one or more entities or subsidiaries wholly owned or controlled by the Developer for purposes of carrying out the development of the Property as contemplated in this Agreement, and the Town's consent to the Developer's assignment of its rights hereunder to such entities or subsidiaries shall not be withheld. In the event ora complete assignment by Developer of all rights and obligations of Developer hereunder, Developer's liability hereunder shall terminate effective upon the assumption by Developer's assignee, provided that the Town has approved the assignment to such assignee, which approval shall not unreasonably be withheld. 7.10 Termination Upon Sale to Public. It is the intention of the parties that although recorded, this Agreement shall not create conditions or exceptions to title or covenants running with the land, unless specifically noted above. Nevertheless, in order to alleviate any concern as to the effect of this Agreement on the status of title to any of the Property, this Agreement shall tenninate 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 thereof and thereupon such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement. 7.11 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, finn, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause o f action hereunder. 7.12 Other Instruments. Each party hereto 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. 7.13 Imposition of Duty by Law. This Agreement does not relieve any party hereto of any obligation or responsibility imposed upon it by law. 7.14 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof. All prior and contemporaneous agreements, representation and understanding of the parties, oral or written, are hereby superseded and merged herein. 7.15 Amendment. No change or addition is to be made to th/s Agreement except by a written amendment executed by the parties. Within ten (10) days after any amendment to this Agreement, such amendment shall be recorded by, and at the expense of, the party requesting the amendment, in the Official Records of Pima County, Arizona. 7.16 Names and Plans. The Developershallbethesoleownerofallnames, 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. 7.17 Good Standing; Authority. The Developer represents and warrants to the Town that i t i s duly formed a nd validly existing under t he 1 aws o f Arizona a nd i s authorized to d o business in the state of Arizona. The Town represents and warrants to the Developer that it is an Arizona Municipal Corporation duly qualified to do business in the State of Arizona and is in good standing under applicable state laws. Each of the parties hereto represents and warrants to the others that the individual(s) executing this Agreement on behalf of the respective parties are authorized and empowered to bind the party on whose behalf each such individual is signing. 7.18 Severability. If any provisions of this Agreement is declared void or unenforceable, such' provision shall be severed fi.om this Agreement, which shall otherwise remain in full force and effect. If any applicable law or court of competent jurisdiction prohibits or excuses the Town from undertaking any contractual commitment to perform any act hereunder, this Agreement shall remain in full force and effect, but the provision requiring such action shall be deemed to permit the Town to take such action at its discretion. If, however, the Town fails to take the action specified hereunder, the Developer shall be entitled to terminate this Agreement. 7.19 Governing Law/Arbitration. 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. In particular, this Agreement is subject to the provisions of A.R.S. 38-511. This Agreement has been negotiated by the Town and the Developer, and no party shall be deemed to have dratted this Agreement for purposes of construing any portion of this Agreement for or against any party. 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 roles of the American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. 12-501 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having jurisdiction thereof. 7.20 Recordation. No later than ten (I0) days after this Agreement has been executed by the Town and the Developer, the Town shall record the Development Agreement in its entirety in the Official Records of Pima County, Arizona. 7.21 No Developer Representations. Except as specifically set forth herein, nothing contained herein shall be deemed to obligate the Town or the Developer to complete any part or all of the development of the Property. 7.22 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. 7.23 Force Majeure. If any partyhereto shall be unable to observe orperform any covenant or condition herein by reason of"fome majeure," then the failure to observe or perform such covenant or condition shall not constitute a default hereunder 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 here, 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/employec 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; lighming; 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 the party hereto unfavorable to such party, shall not constitute failure to use its best efforts to remedy such a condition. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year written below. "TOWN" "DEVELOPER" Town of Marana Garden Estates at Dove Mountain, L.L.C. By: By: Its: Its: Date: Date: STATE OF ARIZONA ) ) SS. County of Pima ) Before me this __ day of ,2003, appeared of the Town of Marana, and subscribed to this instrument and acknowledged that he executed this instrument for the purpose therein contained. Notary Public My Commission Expires: STATE OF ARIZONA ) ) SS. County of Pima ) Before me this day of ,2003, appeared Robert Schwartz, as the member of Garden Estates at Dove Mountain, L.L.C., and subscribed to this instrument and acknowledged that he executed this instrument for the purpose therein contained. Notary Public My Commission Expires: