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HomeMy WebLinkAboutResolution 2004-102 second amendment to the gladden farms development agreementMARANA RESOLUTION NO. 2004-102 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE EXECUTION OF A SECOND AMENDMENT TO THE GLADDEN FARMS DEVELOPMENT AGREEMENT. WHEREAS, the Mayor and Council find that the terms and conditions of the Second 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, AS FOLLOWS: SECTION 1. The Second Amendment to the Gladden Farms Development Agreement is hereby approved. SECTION 2. The Mayor is hereby authorized and directed to execute, and the Town Clerk is hereby authorized and directed to attest to, the Second Amendment to the Gladden Farms Development Agreement attached to and incorporated by this reference in this Resolution as Exhibit A, for and on behalf of the Town of Marana. SECTION 3. 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 20th day of July, 2004. ATTEST: j~lyn Cpronson, Town Clerk {00000043.DOC/] 7/8/04 FdC Exhibit A SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT THIS SECOND ,AnMENDMENT TO THE DEVELOPMENT AGPdEEMENT ("this Second Amendment") is made by and between the TOWN OF MAP, AN& 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 Second Amendment 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. 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 P ima County Recorder in Docket 12242, Page 1055 (the "First Amendment"). C. The Original Agreement as modified by the First Amendment provided for the dedication of two school sites within the Gladden Farms project, consisting ora total of twenty acres. D. The Marana Unified School District (the "School District") has now determined that only a single school site is needed by the School District within the Gladden Farms project, and has indicated a willingness to release the Developer from its obligation to dedicate the second site provided that a $900 per home voluntary school improvement in-lieu fee be imposed on phases 2, 3 and 4 of the Gladden Farms project (Blocks 1, 2, 7, 8, 9, 13, 15 through 22, 24 and 25). E. The Parties desire to amend the Original Agreement as amended by the First Amendment to modify its provisions relating to the dedication of school sites within the Gladden Farms development, and to amend the corresponding Condition 13 of the Gladden Farms Rezoning (Ordinance No. 2004.09) and General Note 13 of the Master Block Plat of Gladden Farms recorded in the Pima County Recorder's Office at Book 55 of Maps and Plats, Page 60. F. The Developer and the Town desire that Gladden Farms be developed in a manner consistent with the Original Agreement and the First Amendment, as modified and supplemented by this Second Amendment. G. The Town and the Developer acknowledge that the development of the Property pursuant to this Second Amendment will result in planning and economic benefits to the Town and its residents. H. 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. 00000039.DOC/] SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT A GREEMENT -1- I. The Parties understand and acknowledge that this Second Amendment is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. § 9-500.05. J. This Agreement is consistent with the portions of the Town's General Plan applicable to the Property. AGREEMENT Now, THEm!FOP,~, in consideration of the foregoing premises and thc mutual promises and agreements set forth in this Agreement, the Parties hereby agree as follows: Article 1. Single Elementary School Site Dedication Requirement 1.1. School Site. Paragraph 2.5.2 of the Original Agreement and paragraph 4.1 of the First Amendment are hereby modified to require the Developer to dedicate one elementary school site consisting of at least ten acres in size within Block 9 of Gladden Farms. Concurrently with its approval of Resolution No. 2004-102 authorizing the execution of this Second Amendment, the Mayor and Council of the Town are approving Marana Ordinance No. 2004.17 modifying Condition 13 of the Gladden Farms Rezoning Ordinance (Ordinance 2000.09) and General Note No. 13 of the Master Plat of Gladden Farms recorded in the Pima County Recorder's Office at Book 55 of Maps and Plats, Page 60, so that they are consistent with the modified dedication requirement set forth in this paragraph. 1.2. Voluntary School Improvement In-Lieu Fee. In lieu of the dedication of the second school site within Gladden Farms, Developer shall contribute a school improvement in-lieu fee of $900 per residential lot within Gladden Farms Blocks 1, 2, 7, 8, 9, 13, 15 through 22, 24, and 25, payable to the Marana Unified School District upon the issuance of the building permit for each residential unit. Article 2. General Terms and Conditions. 2.1. Effect on Original Agreement and First Amendment. Except as expressly modified in this Second Amendment, the terms, provisions and obligations of the Original Agreement as modified by the First Amendment shall remain in full force and effect. 2.2. Counterparts. This Second 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 fi.om 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. 2.3. Severabilit~. If any provision of this Second Amendment is declared void or unenforceable, it shall be severed fi.om the remainder of this Second 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 Second Amendment, this Second 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 Second Amendment. 2.4. Governing Law. This Second 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" 00000039.DOC/} SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT A GREEMENT -2- in the preceding sentence shall constitute a waiver of paragraph 5.4 of the First Amendment, requiring disputes to be resolved by binding arbitration. 2.5. 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. 2.6. Recordation. The Town shall record this Second 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. 2.7. 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 Agreement as of the last date set forth below their respective signatures. THE TOWN: THE DEVELOPER: THE TOWN OF MARANA, an Arizona GLADDEN FOREST, L.L.C., an Arizona municipal corporation limited liability company By: Its Managing Member, Forest City Land Group, Inc., an Ohio corporation By: Bobby Sutton, Jr., Mayor Date: By: Dean Wingert, Vice President ATTEST: Date: Jocelyn C. Bronson, Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attomey 00000039.DOC/] SECOND AMENDMENT TO GLADDEN FAP, klS DEVELOPMENT.~ GREEMENT -3- STATE OF ARIZONA ) SS County of Pima ) The foregoing instrument was acknowledged before me on by Dean Wingert, Vice President of Forest City Land Group, Inc., an Ohio corporation, Managing Member of GLADDEN FOREST, L.L.C., an Arizona limited liability company, on behalf of the L.L.C. My commission expires: Notary Public 00000039.DOC /] SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT ,~ GREEMENT 4 F. ANN RODRIGUE~ RECORDER RECORDED B;Y: J_ D1i:PtJTY RECORDER 4437 PE3 DOCKET: 12350 - PA 5025 NO. OF PAGES: 4 SEQUENCE: 20041421375 07/23/2004 AAG 16:19 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 MAIL AMOUNT PAID $ 11.00 SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT THIs SECOND AMENDMENT TO TIIE DEVELOPMENT AGREEMENT ("this Second 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 Second Amendment 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. 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. The Original Agreement as modified by the First Amendment provided for the dedication of two school sites within the Gladden Farms project, consisting ofa total of twenty acres. D. The Marana Unified School District (the "School District") has now determined that only a single school site is needed by the School District within the Gladden Farms project, and has indicated a willingness to release the Developer from its obligation to dedicate the second site provided that a $900 per home voluntary school improvement in-lieu fee be imposed on phases 2,3 and 4 of the Gladden Farms project (Blocks 1,2, 7,8,9, 13, 15 through 22,24 and 25). E. The Parties desire to amend the Original Agreement as amended by the First Amendment to modify its provisions relating to the dedication of school sites within the Gladden Farms development, and to amend the corresponding Condition 13 of the Gladden Farms Rezoning (Ordinance No. 2004.09) and General Note 13 of the Master Block Plat of Gladden Farms recorded in the Pima County Recorder's Office at Book 55 of Maps and Plats, Page 60. F. The Developer and the Town desire that Gladden Farms be developed in a manner consistent with the Original Agreement and the First Amendment, as modified and supplemented by this Second Amendment. G. The Town and the Developer acknowledge that the development of the Property pursuant to this Second Amendment will result in planning and economic benefits to the Town and its residents. H. The Developer has made and by this Second Amendment will continue to make a substantial commitment of resources for public and private improvements on the Property. 000OOO39.DOC /} SECOND AMENDMENT TO GLADDEN FARMS DEVEWPMENT AGREEMENT ;~ ;'1 .:,' "'$ I:" ~;l' t,,1 ri;1 I", ':1 ~:I ~~~ k"" ,,:1 - 1 - ( I. The Parties understand and acknowledge that this Second Amendment is a "Development Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. ~ 9-500.05. 1. This Agreement is consistent with the portions of the Town's General Plan applicable to the Property. AGREEMENT Now, TIIEREFORE, 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. Single Elementary School Site Dedication Requirement 1.1. School Site. Paragraph 2.5.2 of the Original Agreement and paragraph 4.1 of the First Amendment are hereby modified to require the Developer to dedicate one elementary school site consisting of at least ten acres in size within Block 9 of Gladden Farms. Concurrently with its approval of Resolution No. 2004-102 authorizing the execution of this Second Amendment, the Mayor and Council of the Town are approving Marana Ordinance No. 2004.17 modifying Condition 13 of the Gladden Farms Rezoning Ordinance (Ordinance 2000.09) and General Note No. 13 of the Master Plat of Gladden Farms recorded in the Pima County Recorder's Office at Book 55 of Maps and Plats, Page 60, so that they are consistent with the modified dedication requirement set forth in this paragraph. 1.2. Voluntary School Improvement In-Lieu Fee. In lieu of the dedication of the second school site within Gladden Farms, Developer shall contribute a school improvement in-lieu fee of $900 per residential lot within Gladden Farms Blocks 1, 2, 7, 8, 9, 13, 15 through 22,24, and 25, payable to the Marana Unified School District upon the issuance of the building permit for each residential unit. Article 2. General Terms and Conditions. 2.1. Effect on Original Agreement and First Amendment. Except as expressly modified in this Second Amendment, the terms, provisions and obligations of the Original Agreement as modified by the First Amendment shall remain in full force and effect. 2.2. Counterparts. This Second 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 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. 2.3. Severability. If any provision of this Second Amendment is declared void or unenforceable, it shall be severed from the remainder of this Second 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 Second Amendment, this Second 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 Second Amendment. 2.4. Governing Law. This Second 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" 00000039.DOC I} SECONDAMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT -2- l ~;;~ ":1 ?:~ ,.:) C:;l m !;:;i l:i,1 "'1 .ui~ f:, in the preceding sentence shall constitute a waiver of paragraph 5.4 of the First Amendment, requiring disputes to be resolved by binding arbitration. 2.5. 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. 2.6. Recordation. The Town shall record this Second 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. 2.7. 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 WTINESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE TOWN: THE DEVELOPER: By: I~g~' ~r Bobby Sutton, Jr., Mayor Date ,!#tJ /! f GLADDEN FOREST, L.L.C., an Arizona limited liability company By: Its Managing Member, Forest City Land Group, Inc., an Ohio corporation THE TOWN OF MARANA, an Arizona municipal corporation Date: 7.9.04 ATTEST: l ~;:~ ~'~~ ,;\ '"'' "'I' tl: m I'" ,"~1 !q ~:~j JJ:" ilI"~" .111 0OOOOO39.DOC /} SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT - 3 - STAlE OF ARIzONA) ss County of Pima ) The foregoing instrument was acknowledged before me on Ju Lu q, Ztb 4 by Dean Wingert, Vice President of Forest City Land Group, Inc., an Ohib corporation, Managing Member of GLADDEN FOREST, L.L.c., an Arizona limited liability company, on behalf of the L L C ..~,,\""1l1l11111 . . . ~\\~. olin,. III. ~'lI. .-.-Y 1,1. / -ilJTAllt:.~ -.-/ 6~ A ~~ :l: ~~ Notary PUbIW~'1 ~).I I 7! ;: \ ~ i "'. ~ &. ~ ~....~-: ^~~ '~~""J'" . ';".f\..... ~ """':;: 12.16-"~;\\~ 1111""11""\"\~ My commission expires: \l-lW" lti:}] :~. :;;i! "'~"r ,,~I '"'' '''1 ~:l m I~" .,,::, (;:1 f:~ "'~:: :b: 00000039.DOC I) SECOND AMENDMENT TO GLADDEN FARMS DEVELOPMENT AGREEMENT 4