HomeMy WebLinkAboutResolution 2005-142 first amendment to amended and restated development agreement with saguaro reserve
MARANA RESOLUTION NO. 2005-142
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE A FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT
AGREEMENT WITH SAGUARO RESERVE, LLC, RELATING TO THE SAGUARO
SPRINGS DEVELOPMENT PROJECT.
WHEREAS, On April 9,2004, the Town and the then-Developer of the Saguaro Springs
development project entered into an Amended and Restated Development Agreement; and
WHEREAS, Saguaro Reserve, LLC, a limited liability company whose major partners are
the Empire Companies and KB Home, has now acquired the property, and is bringing forward the
development of the project; and
WHEREAS, the First Amendment to the Amended and Restated Development Agreement
will clarifY the obligations ofthe new Developer, Saguaro Reserve, LLC; and
WHEREAS, the Mayor and Council find that the terms and conditions of the First
Amendment to the Amended and Restated 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, that the First Amendment to the Amended and Restated
Development Agreement between the Town of Marana and Saguaro Reserve, LLC, 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.
BE IT 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 TIlE MAYOR AND COUNCIL UTIlE TOWN OF
MARANA, ARIZONA, this 15th day of November, 2005. ~ ~ .
Mayor d Honea
ATTEST:
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~Jocelyn C. Bronson, Town Clerk
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F. ANN RODRIGUEZ, RECORDER
RECoORDED BY: PH
DEPUTY RECORDER
3056 PE2
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
11555 W CIVIC CENTER DR
MARANA AZ 85653
When recorded, return to:
Town of Maran a
Atin: Town Clerk
11555 N. Civic Center Drive
Marana, Arizona 85653
First Amendment to
DOCKET:
PAGE:
NO. OF PAGES:
SEQUENCE:
AAG
MAIL
AMOUNT PAID
Amended and Restated Development Agreement
Town of Marana, Arizona
Saguaro Reserve LLC
(Successor to Best Associates II, LLC)
{OOOOJ039.DOC / 8}
Exhibit A to Marana Resolution No. 2005-142
12698
3669
18
20052390736
12/12/2005
16:56
$ 14.50
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First Amendment to Amended and Restated Development Agreement
THIS FIRST AMENDMENT TO AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("First
Amendment") is made by and between the Town of Marana, an Arizona municipal corporation
(the "Town"), Saguaro Reserve LLC, a Delaware limited liability company ("Saguaro Reserve"),
and FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, as Trustee under
Trust No. 9089 ("FA T9089"). Saguaro Reserve and FA T9089 are collectively referred to in this
First Amendment as the "Developer." The Town and the Developer are sometimes collectively
referred to as the "Parties," either of which is sometimes individually referred to as a "Party."
Recitals
A. The Town and Best Associates II, LLC entered into an Amended and Restated
Development Agreement dated April 9, 2004 and recorded in Docket 12278 at page 3092 in the
office of the Pima County Recorder (the "Agreement"), for the development of the Saguaro
Springs Project (the "Development") on the property legally described and depicted on Exhibits
A-I and A-2 to the Restated Development Agreement (the "Property").
B. Developer is the current owner of the Property and is the successor to Best Associates
II, LLC.
C. The Town and Developer desire to amend the Agreement as set forth in this First
Amendment.
D. Paragraph 2.2 of the Agreement provided in relevant part that "the Developer may
choose the method of financing [the public infrastructure referenced in the Agreement], which
mayor may not include the use of a community facilities district ('CFD'). In the event the
Developer chooses to finance construction of the Infrastructure through a CFD, the Town and the
Developer shall meet and confer in good faith in order to create a CFD for the Property." This
First Amendment is one of the good faith steps being taken by the Parties toward the creation of
aCFD.
E. The Parties understand and acknowledge that this First Amendment is a "Development
Agreement" within the meaning of, and is entered into pursuant to the terms of, A.R.S.
g 9-500.05.
F. This First Amendment is consistent with the portions of the Town's General Plan
applicable to the Property.
Agreement
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Now, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth in this First Amendment, the Parties state, confirm and amend the
Agreement as follows:
I.
Residential Design. The following new Section 1.5 is hereby added:
(00001039.DOC / 8)
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1.5 Residential Design. Residential design shall adhere to the standards of the
Town of Marana reflected in the residential design ordinance, Ordinance
No. 2005.18 adopted September 19, 2005, and recorded at Docket 12646
Page 413, except that a total of sixty percent of the homes in the
Development may have two stories provided that all of the homes in the
Development consist of four-sided design as approved by the Planning
Director. The "neighborhood design" standards of the residential design
ordinance shall not apply to the Property.
II. Roads, Grading and Drainage. Exhibit D to the Agreement is hereby amended by
replacing th e sections entitled "Roads" and "Grading and Drainage" with Exhibit 1
attached to and incorporated in this First Amendment.
III. School Site. The following new Section 1.7 is hereby added:
1.7 School Site. The Marana Unified School District ("MUSD") has accepted
dedication of a school site within the Development for the location of an
elementary school. The Town agrees that no additional land or payment
to MUSD is necessary to comply with Town requirements.
IV. Right-of-Way Landscaping. The following new Section 1.8 is hereby added:
1.8 Right-of- Wav and Drainageway Landscaping. Landscaping installed
within the right-of-way adjoining the Development and within
drainageways within the Development will be licensed by the Town and
shall be maintained by the homeowners' association formed for the
Development.
V. Developer Constructed Upgrades. Section 3 and Exhibit E of the Agreement are
hereby deleted in their entirety and replaced with the following:
3. Developer Constructed Upgrades.
3.1
Developer Transportation Obligations. Developer shall pay for and
provide the transportation plans and improvements described in
Sections 3.1.1 through 3.1.5. The Town will issue up to 611 building
permits for single family residences on the Property prior to the
completion by the Developer of the improvements described in Sections
3.1.3, 3.1.4 and 3.1.5. The Town will not allow occupancy of any single
family residences on the Property unless and until the Developer
completes the construction of Saguaro Peaks Boulevard from Twin Peaks
Road to Lambert Lane and Saguaro Highlands Drive from Saguaro Peaks
Boulevard to the western edge of Saguaro Springs Block 4.
3.1.1 Twin Peaks Road Design: Developer shall prepare, in consultation
and under the direction of Town staff, construction design plans
and associated construction documents for the reconstruction of
Twin Peaks Road to its full four-lane arterial road cross-section, as
determined by the Town in cooperation with Pima County, from
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the western boundary of the Property to the intersection of Twin
Peaks Road and Silverbell Road. The design of turn lanes and their
storage lengths on Twin Peaks Road and intersecting roadways
shall be based on recommendations made in the Town-approved
December 2004 Traffic Impact Analysis prepared for the
Development.
3.1.2 Twin Peaks Road Construction: Developer shall reconstruct Twin
Peaks Road along the entire frontage of the Development and
extending to the entrance to White Stallion Ranch to half of its
designed four-lane arterial road cross-section, including the
installation of westbound right-turn lanes and eastbound left-turn
lanes at its intersections with Saguaro Peaks Boulevard and
Saguaro Highlands Drive. The Developer shall commence the
construction described in this paragraph not later than two years
after substantial completion of the improvements described in
Sections 3.1.3 and 3.1.4.
3.1.3 Airline Road. Developer shall design and reconstruct Airline Road
from Avra Valley Road to Lambert Lane to the Town's two-lane
rural collector standard, as shown on the cross-section set forth in
Exhibit 2 attached to and incorporated in the First Amendment,
and including a southbound left-turn lane at the Lambert Lane
intersection.
3.1.4 Lambert Lane. Developer shall design and reconstruct Lambert
Lane from Airline Road to a point 4900 feet east of Airline Road
to the Town's two-lane rural collector standard, as shown on the
cross-section set forth in Exhibit 2 attached to and incorporated in
the First Amendment, and including:
3.1.4.1 the realignment of the curved segment of Lambert Lane
located between 4130 feet and 4900 feet east of Airline
Road,
3.1.4.2 the addition of westbound left-turn lanes at all of the
Development's streets that intersect Lambert Lane, and
3.1.4.3 an eastbound right-turn lane at the intersection of Lambert
Lane and Saguaro Peaks Boulevard.
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3.1.5 Saguaro Peaks Boulevard and Saguaro Highlands Drive.
Developer shall design and construct Saguaro Peaks Boulevard
from Twin Peaks Road to Lambert Lane and Saguaro Highlands
Drive from Twin Peaks Road to Saguaro Peaks Boulevard
pursuant to the Town-approved plans identified as number "ENG-
0411-007. "
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{00001039.DOC / 8}
3.2 Road Permits and Right-of- Way Acquisition. All rights-of-way needed
from lands owned by Developer for the construction described in this
Agreement shall be provided at no cost to the Town. The Town shall
acquire all other rights-of-way and all permits needed for the construction
of improvements described in Section 3.1. Nothing in this paragraph shall
preclude these Town-funded right-of-way acquisition and permit costs
from being eligible for reimbursement by the CFD if the Parties include
the reimbursement in an intergovernmental and development agreement
relating to the establishment of the CFD (see Section 3.4).
3.3 Other Developer Infrastructure Obligations. In addition to completing in a
timely manner all onsite and offsite infrastructure required by agreements
for installation of subdivision infrastructure for the subdivisions that
constitute the Development (see A.R.S. ~ 9-463.01(C)(8) and MDC
Section 06.06), the Developer shall complete the installation of an eight-
inch water main from the north boundary of the Development, through the
right-of-way for Silverbell Road to the Town's existing La Puerta del
Norte water main, in accordance with plan set PRV-99-055 approved by
the Town's Water Department. If this work is not reimbursed with CFD
funding on or before January 1, 2007, the Town shall pay the Developer
$60,000 as the Town's fair share cost of the water main work.
3.4 Community Facilities District. Town agrees to schedule for Mayor and
Council consideration the creation of a CFD to finance the construction
and/or acquisition of certain "public infrastructure" (as that term is defined
in A.R.S. ~ 48-701). The policies and financial terms and Developer
security obligations are anticipated to be similar to and consistent with
those used for the Town's establishment of the Gladden Farms
Community Facilities District and the Vanderbilt Farms Community
Facilities District, with such modifications as the Parties may mutually
agree upon.
3.4.1 The Parties shall work in good faith to fairly include some of the
costs associated with the design, permitting, and construction of
Twin Peaks Road from the western boundary of the Property to the
intersection of Twin Peaks Road and Silverbell Road and the costs
to design and install a traffic control signal at the Twin
Peaks/Saguaro Peaks Boulevard intersection within the first or
second bond issuance by the CFD, which issuances also shall be
used for such additional onsite and offsite public infrastructure as
the Parties then determine.
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3.5
Reimbursement from Other Benefiting Projects. The Town shall use its
best efforts to require fair-share reimbursement to the Developer from
other projects that benefit from the improvements funded by the
Developer pursuant to this Agreement.
3.6
Environmental Roadway Elements. Elements of the Twin Peaks Road
Phase II construction that are required by the Town, Pima County or any
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other governmental entity to protect or accommodate native species shall
be paid for with government grants or general revenues or other funding
sources not provided directly by the Developer or the Development.
VI. Offsite Drainage Channel. The Parties agree to cooperate in good faith and to undertake
all reasonable steps necessary to secure the property rights needed for the construction of
the offsite drainage channel required for the Development.
VII. Developer's Representative. Section 5.1 of the Agreement is hereby amended to replace
the name "Thomas J. Barr" with the name "Brian Rhoton."
VIII. Default and Remedies. Section 5.4 of the Agreement is hereby deleted in its entirety and
replaced with the following:
5.4 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 Section 6.1 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
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 Sections 5.5
and 5.6 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.
IX.
Mediation. The following new Section 5.5 is hereby added:
5.5
Mediation. If there is a dispute that 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 non-binding 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.
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{00001039.DOC / 8}
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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 non-binding on the
Parties, and any Party shall be free to initiate arbitration after the
moratorium.
x. Arbitration. Section 7.18 of the Agreement is modified by deleting "/ Arbitration" from
the heading and by deleting the last sentence in its entirety. The following new Section
5.6 is hereby added:
5.6 Arbitration. After mediation (Section 5.5 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 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.
XI. Address Changes. The Parties' addresses as set forth in Section 6.1 shall be changed to
read as follows:
The Town:
TOWN OF MARANA
Town Manager
11555 N. Civic Center Drive Bldg A3
Marana, Arizona 85653
With a copy to:
TOWN OF MARANA
Town Attorney
11555 N. Civic Center Drive Bldg A3
Marana, Arizona 85653
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Developer
Saguaro Reserve LLC
% Brian Rhoton, VP Acquisition and Entitlement
EMPIRE COMPANIES ARIZONA
3001 N. Main Street, Suite IB
Prescott Valley, Arizona 86314
{00001039.DOC / 8}
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With a copy to:
GALLAGHER & KENNEDY, P.A.
2575 E. Camelback Road
Phoenix, Arizona 85016
Attn: Dana Stagg Belknap
XII. Effect of Amendment. Except as expressly set forth in this First Amendment, the
Agreement remains in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the last date set
forth below their respective signatures.
TOWN:
DEVELOPER:
THE TOWN OF MARANA,
an Arizona municipal corporation
By: r;t ~
Ed Honea, Mayor
Date:
It? - tj-O S
SAGUARO RESERVE LLC,
a Delaware limited liability company
By: EMPIRE LAND, LLC,
a California limited liability company,
its managing member
By: EMPIRE PARTNERS, INC.,
a California corporation, its managing
member /"1/'1
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ATTEST:
~~a_~
-fClC" Jocelyn C. ronson, Clerk
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Date: t.b..19 Z005
>
BY:~
Its: r."p
Date: 1Jov.29) &-n5
FIRST AMERICAN TITLE OF ARIZONA, an
Arizona corporation, as Trustee under Trust
No. 9089
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Date:
{00001039.DOC / 8}
- 7 -
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With a copy to:
GALLAGHER & KENNEDY, P.A.
2575 E. Camelback Road
Phoenix, Arizona 85016
Attn: Dana Stagg Belknap
XII. Effect of Amendment. Except as expressly set forth in this First Amendment, the
Agreement remains in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the last date set
forth below their respective signatures.
TOWN:
DEVELOPER:
THE TOWN OF MARANA,
an Arizona municipal corporation
SAGUARO RESERVE LLC,
a Delaware limited liability company
By: EMPIRE LAND, LLC,
a California limited liability company,
its managing member
By: EMPIRE PARTNERS, INC.,
a California corporation, its managing
member
By:
Ed Honea, Mayor
Date:
ATTEST:
By:
Its:
Jocelyn C. Bronson, Clerk
ApPROVED AS TO FORM:
Date:
By:
Frank Cassidy, Town Attorney
Its:
Date:
FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation, as
Trustee under Trust No. 9089, and not
::C:I ock
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{00001039.DOC / 8}
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STATE OF tall'tuV'r\!ct ) ss
County o8fu,\~( VlCLn\l'v1 ~
he foregoinR inst~ment was ackAow~edged before me on "'-bvwb.er 2-9 ,2sn5 by
~s p \--'(f0It( , the Y1'{S\d~vl.t- of EMPIRE PARTNERS, INC.,
a California corporation, managing member of EMPIRE LAND, LLC, a California limited liability
company, managing member of SAGUARO RESERVE LLC, a Delaware limited liability company,
on behalf of the LLC.
}lbd~~
Notary Public
(\ C ( -' Ja~ ~.. - ~ :~~::*~:4 ~ J
S TATE OF l..-A \ ",DY VlllA- ) i. Notary PublIc . CaIIfornla I
. ss ! . ~
County 0& bet'Wl rdlll:l i _ _ _ :'~~~
The foregoing instrument was acknowledged efore me on Ove.v\l\.bex- 'lq 2:QlJ by
WXV~ K:D~ ' the ',' y-tS\a..Qv-:. of EMPIRE PARTNERS, INC.,
Californ corporati , managing member of EMPIRE LAND, LLC, a California limited liability
company, managing member of SAGUARO RESERVE LLC, a Delaware limited liability company,
on behalf of the LLC.
~ahw!.4'_
otary Public
~ ~ - ~ ~ ~ ""'"UNDA""'"PAlMER ""'" ""'" J
a-. Commlsslon # 1503194
- -,,; Notary PublIc . California I
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STATE OF ARIZONA )
ss
County of Pima )
The (oregping, instf\lIllent was acknowledged before me on . ., by
---<t _.; _ of FIRST AMERICAN TITLE OF ARIZONA, an
Arizona torporation, as Trustee under Trust No. 9089, and not in its corporate capacity. "
My commission expires: <1 ee (lcx.)}\-Iev 13.\'"1- $'3f\Cl... +0 r e. ~
Notary Public L
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11/15/20055:26 PM
STATE OF
County of
) ss
)
The foregoing instrument was acknowledged before me on by
, the of EMPIRE PARTNERS, INC.,
a California corporation, managing member of EMPIRE LAND, LLC, a California limited liability
company, managing member of SAGUARO RESERVE LLC, a Delaware limited liability company,
on behalf of the LLC.
My commission expires:
Notary Public
STATE OF
County of
) ss
)
The foregoing instrument was acknowledged before me on by
, the of EMPIRE PARTNERS, INC.,
California corporation, managing member of EMPIRE LAND, LLC, a California limited liability
company, managing member of SAGUARO RESERVE LLC, a Delaware limited liability company,
on behalf of the LLC.
My commission expires:
Notary Public
STATE OF ARIZONA )
ss
County of Pima )
( L~_. ;'
T e foregoing was aCkno~e:d before me on ~N eiY\.r...t:~::-'- -3:> ,a.o;. by
i . c.1I C2.- , -[;:1.)5+ ' -\o,{ of FIRST AMERICAN TITLE INSURANCE
COMPAN , a California corporation, as Trustee under. Trustf/:. .,0.89.., anzn?. o.therwise.
, '/ /Jd
My commission expires: . _ tl tea --t.'-r-___
OFFICIAL SEAL Notary Public
K. CALLAHAN
NOTARY PUBlIC.ARIZONA
PIMA COUNTY
Mv Co:nm. Exp. May 15. 2009
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{00001039.DOC / 8}
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EXHffiIT 1 TO FIRST AMENDMENT TO
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SAGUARO SPRINGS DEVELOPMENT AGREEMENT
Saguaro Springs Major Infrastructure
Roads:
See Section 3.1 of the First Amendment
Grading and Drainage (Exhibit 4 t):
Improvements will consist of two graded channels conveyed under the proposed Saguaro Peaks
Boulevard in new concrete box culverts, a single graded channel conveyed under the Arizona
Portland Cement property in a new concrete box culvert, an on-site detention basin, and an off-
site out-fall channel.
Additional drainage improvements will include the installation of culverts under the
reconstructed portion of Twin Peaks Road, designed to convey the 100-year storm event.
"Exhibit F" as referenced in Section 4.4 of the Agreement (identifying the drainage/retention
areas) is hereby replaced by the land depicted as Blocks A through D on the Final Plat of
Saguaro Springs Blocks 1 thru 10 and A thru D and Lots 1 thru 9 and & A and B, recorded at
Book 58 of Maps and Plats, Page 23. In Block A, detention/retention will occur in the park site.
Nothing in this paragraph shall affect "Exhibit F" as referenced in the Agreement for purposes of
identifying park amenities.
· All terms in this Exhibit shall have the same meanings as found in the First Amendment to Amended
and Restated Development Agreement
t This is Exhibit 4 to the Agreement, not the First Amendment
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Exhibit 2 to First Amendment to Saguaro Springs Development Agreement
ROADWAY IMPROVEMENTS
SAGUARO SPRINGS
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