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HomeMy WebLinkAboutResolution 2019-122 Approving Fourth Amendment to Gladden Farms II Development AgreementMARANA RESOLUTION NO. 2019-122 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO SIGN THE FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT WHEREAS GLADDEN PHASE II, LLC and GLADDEN PHASE II DEV, LLC (collectively the "Developers") are the current master developers of the Gladden Farms II development project; and WHEREAS the Town and the Developers' predecessor in interest entered into the Gladden Farms II Development Agreement recorded in the Pima County Recorder's office on March 10, 2006, at Docket 12758, Page 2249 (Sequence 20060470594) (the "Original Agreement"); and WHEREAS the Town and the Developers' predecessor in interest entered into the First Amendment to the Gladden Farms II Development Agreement recorded in the Pima County Recorder's office on December 21, 2006, at Docket 12956, Page 1633 (Sequence 20062450467) (the "GFII DA 1st Amendment"), amending the Original Agreement; and WHEREAS the Town and the Developers entered into the Second Amendment to the Gladden Farms II Development Agreement recorded in the Pima County Recorder's office on August 8, 2018, at Sequence 20182200093 (the "GFII DA 2nd Amendment"), further amending the Original Agreement and the GFII DA 1st Amendment; and WHEREAS the Town and the Developers entered into the Third Amendment to the Gladden Farms II Development Agreement recorded in the Pima County Recorder's office on October 19, 201.8, at Sequence 20182920055 (the "GFII DA 3rd Amendment"), further amending the Original Agreement, the GFII DA 1st Amendment, and the GFII DA 2nd Amendment; and WHEREAS the GFII DA 2nd Amendment as amended by the GFII DA 3rd Amendment secures the construction of certain Public Park Improvements with restrictions on the issuance of residential building permits; and WHEREAS the Town and the Developers desire to allow restrictions on residential building permits to be replaced with the posting of a Performance Bond for completion of the Public Park Improvements; and 00067287.DOCX /7. Marana Resolution No. 2019-1.22 - 1 - 12/9/2019 9:55 AM WHEREAS the Town and the Developers desire to memorialize the administration of credits against the Town's Parks and Recreation Facilities Development Impact Fee associated with the construction of the Public Park Improvements; and WHEREAS the Mayor and Council find that entering into the Fourth Amendment to the Gladden Farms II Development Agreement is 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 Fourth Amendment to the Gladden Farms II Development Agreement between the Town of Marana and the Developers in substantially the form included with the agenda backup material accompanying this resolution is hereby approved, the Mayor is hereby authorized and directed to sign it for and on behalf of the Town of Marana, and the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out its terms, obligations, and objectives. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 17th day of December, 2019. Mayor Ed Honea ATTEST: Cherry L. Law/0A, Town Clerk J60 E� MARANA AZ ESTABLISHED 1977 APPROVED AS TO FORM: 00067287.DOCX /1 Marana Resolution No. 2019-122 - 2 - 12/9/2019 9:55 AM FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA THIS FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT ("this Fourth Amendment") is made by and between the TOWN OF MARANA (the "Town"), an Arizona municipal corporation, GLADDEN PHASE II, LLC, a Delaware limited liability company, and GLADDEN PHASE II DEV, LLC, a Delaware limited liability company. GLADDEN PHASE 11, LLC and GLADDEN PHASE II DEV, LLC are together referred to as the "Developer." The Town and the Developer are collectively referred to in this Fourth Amendment as the "Parties," each of which is sometimes individually referred to as a "Party." RECITALS A. The development project commonly known as Gladden Farms II and referred to in this Fourth Amendment as "Gladden 11" consists of the land area included within the Gladden Farms II Specific Plan. B. The Gladden Farms II Specific Plan was established by the March 7, 2006 adoption of Marana Ordinance No. 2006.03, recorded in the Pima County Recorder's office on March 10, 2006 at Docket 12758, Page 2240 (Sequence 20060470590). C. The Gladden Farms II Specific Plan was amended by the December 19, 2006 adoption of Marana Ordinance No. 2006.35, recorded in the Pima County Recorder's office on December 21, 2006 at Docket 12956, Page 1622 (Sequence 20062450465). D. The Gladden Farms II Specific Plan was further amended by the March 6, 2018 adoption of Marana Ordinance No. 2018.006, recorded in the Pima County Recorder's office on March 9, 2018 at Sequence 20180680060. E. The original developer of Gladden II was FC/M GLADDEN II, L.L.C., an Arizona limited liability company, whose interests in Gladden II were sold to the Developer in 2013. F. The Developer owns most of the remaining undeveloped land in Gladden II. G. The Parties acknowledge the following agreements, referred to in this Fourth Amendment as the "Prior Agreements," affecting the development of all or portions of Gladden II, some terms of which are modified or clarified by this Fourth Amendment with respect to portions of Gladden II owned by the Developer as of the date of this Fourth Amendment: 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS 11 DEVELOPMENT AGREEMENT -1- i) The "Gladden Farms II Development Agreement" recorded in the Pima County Recorder's office on March 10, 2006, at Docket 12758, Page 2249 (Sequence 20060470594) (the "Original GFII DA"). ii) The "First Amendment to the Gladden Farms 11 Development Agreement" recorded in the Pima County Recorder's office on December 21, 2006, at Docket 12956, Page 1633 (Sequence 20062450467) (the "LFII DA 1St Amendment"). iii) The "Development Agreement Regarding Development Impact Fee Credits for Gladden Farms II" recorded in the Pima County Recorder's office on November 9, 2012, at Sequence 20123140233 (the "LFII DIF DA"). iv) The "Second Amendment to the Gladden Farms II Development Agreement" recorded in the Pima County Recorder's office on August 8, 2018, at Sequence 20182200093) (the "LFII DA 2nd Amendment"). v) The "Third Amendment to the Gladden Farms II Development Agreement" recorded in the Pima County Recorder's office on October 19, 2018, at Sequence 20182920055) (the "GFII DA 3rd Amendment"). H. Title to the portions of Gladden II owned by the Developer as of the date of this Fourth Amendment is held by FIDELITY NATIONAL TITLE AGENCY, INC., an Arizona corporation, as Trustee under Trust No. 60,423, whose sole beneficiaries are GLADDEN PHASE II, LLC and GLADDEN PHASE II DEV, LLC, who together are the "Developer" under the Prior Agreements as amended by this Fourth Amendment. I. The term "Public Park Improvements" is defined in paragraph 2 ("Community park improvements"), subparagraph a ("Description of improvements") of the GFII DA 2nd Amendment, and includes two full-size soccer fields, field lighting, a restroom, driveway and parking facilities, parking lot lighting, benches, park furnishings, landscaping, and asphalt pathways as conceptually shown on Exhibit A attached to the GFII DA 2nd Amendment. J. The GFII DA 3rd Amendment includes paragraph 2 ("Community park improvements"), subparagraph a ("Description of improvements"), subparagraph ii ("Timing of construction"), which provides for building permits to be withheld if construction of the Public Park Improvements is not timely begun or completed. K. To accommodate continued sale of lots and in in recognition of the impending construction of the Public Park Improvements, the Parties desire to allow the posting of the Performance Bond to secure construction of the Public Park Improvements, in place of withholding permits. L. The GFII DA 2nd Amendment includes paragraph 2 ("Community park improvements"), subparagraph b ("Park development impact fees"), which states that the Town will provide credit against the Town's Parks and Recreation Facilities Development Impact Fee (the "Parks DIF") not later than the Developer's completion of the Public Park Improvements. 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS 11 DEVELOPMENT AGREEMENT -2- M. Upon the Developer's posting of the Performance Bond, completion of the Public Park Improvements is guaranteed, making it appropriate to begin providing credit against the Parks DIF. N. The Parties understand and acknowledge that this Fourth Amendment is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, Arizona Revised Statutes section (A.R.S. §) 9-500.05. O. This Fourth Amendment is consistent with the portions of the Town's General Plan applicable to Gladden II. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth in this Fourth Amendment, the Parties hereby agree as follows: 1. The Developer's representation of oumership. By entering into this Fourth Amendment, GLADDEN PHASE II, LLC and GLADDEN PHASE II DEV, LLC, who together are the "Developer" under the Prior Agreements as amended by this Fourth Amendment, represent that that they are the sole beneficiaries of and are entitled to enter this Fourth Amendment on behalf of FIDELITY NATIONAL TITLE AGENCY, INC., an Arizona corporation, as Trustee under Trust No. 60,423. 2. Cost of the Public Park Improvements. The Parties currently anticipate and estimate that the cost of the Public Park Improvements will be $2,111,408. After construction of the Public Park Improvements is completed and the Public Park Improvements are accepted for maintenance by the Town, the Marana Town Engineer shall determine the actual final cost of the Public Park Improvements (the "Public Park Improvements Final Cost") based on the construction cost records, and shall notify the Developer in writing of the amount of the Public Park Improvements Final Cost. 3. The Performance Bond. The "Performance Bond" as that term is used in this Fourth Amendment shall mean a performance bond payable to the Town of Marana in the principal amount of at least $2,428,119.20 (the currently estimated cost of the Public Park Improvements plus a 15% contingency), executed by a surety company holding a certificate of authority to transact surety business in Arizona issued by the director of the Arizona Department of Insurance pursuant to Arizona Revised Statutes Title 20, Chapter 2, Article 1, and having a term that extends until the Performance Bond is released in writing by the Marana Town Engineer. The Performance. Bond may not be executed by an individual surety or sureties, even if the requirements of A.R.S. § 7-101 are satisfied. The principal amount of the Performance Bond may be reduced as construction of the Public Park Improvements is completed. The Developer shall submit a request for reduction of the principal amount of the Performance Bond no more often than every three months. To do so, the Developer shall submit to the Town Engineer a detailed description and cost estimate of the work already completed and to be completed on the Public Park Improvements, together with proof of payment of 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT -3- contractors, subcontractors, and material suppliers in a form reasonably acceptable to the Town Engineer. The Town Engineer shall revise the principal amount of the Performance Bond based on the Town Engineer's reasonable determination of the cost of the remaining work (relying on the information provided by the Developer and on any other reliable information) plus a 15% contingency. Upon the Town Engineer's receipt of the original reduced Performance Bond, the previous original Performance Bond shall be returned to the Developer. 4. Substitution of securihj for the Public Park Improvements. Effective upon the Developer's delivery to the Marana Town Attorney of the Performance Bond conforming to the requirements of paragraph 3 of this Fourth Amendment, paragraph 2 ("Community park improvements"), subparagraph a ("Description of improvements"), subparagraph ii ("Timing of construction") of the GFII DA 3rd Amendment is replaced by the following: ii. Timing of construction. The Developer shall begin construction of the Public Park Improvements no later than December 10, 2020, and shall complete construction of the Public Park Improvements by December 10, 2021. Upon the Developer's default of any of its obligations under this subparagraph, the Town shall have all remedies available to it by law to require construction and completion of the Public Park Improvements by the Developer or the Developer's surety under the Performance Bond. 5. Parks DIF credit. Effective upon the Developer's delivery to the Marana Town Attorney of the Performance Bond conforming to the requirements of paragraph 3 of this Fourth Amendment, the Town shall begin crediting the full Parks DIF (currently $2,461 per equivalent demand unit (EDU) per Marana Ordinance Nos. 2014. 012 and 2017. 029) against all building permit applications within Gladden II (whether located on lots owned by the Developer or on lots owned by others) until the cumulative Parks DIF credits equal the Public Park Improvements Final Cost. 6. Term. This Fourth 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 Fourth Amendment. Unless sooner terminated by the mutual consent of the Parties, this Fourth Amendment shall automatically terminate and shall thereafter be void for all purposes on June 30, 2035. 7. Effect on the Prior Agreements and other agreements. Except as expressly modified in this Fourth Amendment or in the Prior Agreements, the terms, provisions and obligations of the Prior Agreements shall remain in full force and effect. Nothing in this Fourth Amendment is intended to modify other agreements not mentioned in this Fourth Amendment that affect the development of Gladden II, and the failure of this Fourth Amendment to mention such other agreements shall not affect their validity. 8. Counterparts. This Fourth Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT -4- 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. 9. Recitals. The Recitals set forth at the beginning of this Fourth Amendment are hereby acknowledged and confirmed to be accurate. 10. Good standing, authority. The Developer represents and warrants to the Town that it is duly formed and validly existing under the laws of Delaware 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 Fourth Amendment under applicable state laws. Each Party represents and warrants that the individual executing this Fourth Amendment on its behalf is authorized and empowered to bind the Party on whose behalf each such individual is signing. 11. Severability. If any provision of this Fourth Amendment is declared void or unenforceable, it shall be severed from the remainder of this Fourth 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 Fourth Amendment, this Fourth 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 Fourth Amendment. 12. Governing lazv. This Fourth 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 9.5 of the Original GFII DA, requiring disputes to be resolved by binding arbitration. 13. Interpretation. This Fourth Amendment has been negotiated by the Town and the Developer, and no party shall be deemed to have drafted this Fourth Amendment for purposes of construing any portion of this Fourth Amendment for or against any party. 14. Recordation. The Town shall record this Fourth 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. 15. No representations of development. Except as specifically set forth in this Fourth Amendment, nothing contained in this Fourth Amendment shall be deemed to obligate the Town or the Developer to complete any part or all of the development of Gladden II. 16. Approval. If any Party is required pursuant to this Fourth Amendment to give its prior written approval, consent or permission, such approval, consent or permission shall not be unreasonably withheld or delayed. 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT -5- 17. Force majeure. If any Party shall be unable to observe or perform any covenant or condition of this Fourth Amendment by reason of "force majeure," then the failure to observe or perform such covenant or condition shall not constitute a default under this Fourth Amendment 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. 18. Conflict of interest. This Fourth 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 Fourth Amendment as of the last date set forth below their respective signatures. The "Town": The "Developer": TOWN OF MARANA, an Arizona municipal GLADDEN PHASE II, LLC, a Delaware corporation limited liability company By: By: Ed Honea, Mayor Date: ATTEST: Cherry L. Lawson, Town Clerk APPROVED AS TO FORM: Frank J. Walter III Authorized Signatory Date: GLADDEN PHASE II DEV, LLC, a Delaware limited liability company in Frank J. Walter III Authorized Signatory Frank Cassidy, Town Attorney Date: 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT -6- STATE OF NEW YORK ) ss County of New York ) The foregoing instrument was acknowledged before me on , 2019, by Frank J. Walter III, Authorized Signatory of GLADDEN PHASE I1, LLC, a Delaware limited liability company, on behalf of the LLC. (Seal) Notary Public STATE OF NEW YORK ) ss County of New York ) The foregoing instrument was acknowledged before me on , 2019, by Frank J. Walter III, Authorized Signatory of GLADDEN PHASE II DEV, LLC, a Delaware limited liability company, on behalf of the LLC. (Seal) Notary Public 00066849.DOCX /3 12/9/2019 9:26 AM FOURTH AMENDMENT TO THE GLADDEN FARMS II DEVELOPMENT AGREEMENT -7-