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Home My WebLink AboutResolution 2012-084 relating to utilities and non potable waterMARANA RESOLUTION NO. 2012-084 RELATING TO UTILITiES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE FIRST AMENDMENT TO TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF POTABLE AND NON-POTABLE WATER FACILITIES AND PROVISION OF WATER UTILITY SERVICE FOR GLADDEN FARMS WHEREAS the Town of Marana entered into a water service agreement with Gladden Farms LLC dated November 5, 2002 and recorded in the office of the Pima County Recorder on November 22, 2002 at Docket 11932, Page 611 (the "Original Agreement"); and WHEREAS Gladden Farms LLC assigned its rights and obligations under the Original Agreement to GLADDEN FOREST LLC, an Arizona limited liability company (the "Developer") in October 2002; and WHEREAS paragraph 3.4 of the Original Agreement requires the Town to reimburse the Developer $500 per meter for connection charges actually collected by the Town within the first ten years after the effective date of the Original Agreement for each initial potable connection made within the Gladden Farms Project, up to a total reimbursement of $2,700,000; and WHEREAS the ten-year period for reimbursement under paragraph 3.4 of the Original Agreement ends in November 2012; and WHEREAS the number of initial potable connections made during the reimbursement period within the Gladden Farms Project has been fewer than the Parties anticipated on the effective date of the Original Agreement for reasons including the major economic recession and the resul'ting slow- down in development activities in this market; and WHEREAS the Mayor and Council find that the terms and conditions of the amendment 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 Town of Marana Agreement for Construction of Potable and Non-Potable Water Facilities and Provision of Water Utility Service for Gladden Farms" attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved and the Mayor is hereby authorized and directed to execute 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 the terms, obligations, and objectives of the agreement. Marana Resolurion No. 2012-084 - 1- 10l29/2012 2:13 PM FC PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7�` day of November, 2012. Ec� Honea, Mayor ATTEST: / r�� . ,i�✓� i f ■ ��-- �C � • • APPROyED AS TO FORM: ,T Marana Resolurion No. 2012-084 - 2- 10/29/2012 2:13 PM FC FIRST AMENDMENT TO TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF POTABLE AND NON-POTABLE WATER FACILITIES AND PROVISION OF WATER UTII.ITY SERVICE FOR GLADDEN FARMS TOWN OF 11✓IARANA, ARIZONA THIS AMENDMENT is entered into by and between the Towlv oF Ma�.NA, an Arizona mu- nicipal corporation (the "Town"), and GLaDD�rt Fo�sT LLC, an Arizona limited liability company (the "Developer"). The Town and the Developer are sometimes referred to collectively as the "Par- ties," either of which is sometimes individually referred to as a"Party." RECITALS A. The Town and Gladden Farms LLC, a Nevada limited liability company, entered into an "Agreement for Construction of Potable and Non-Potable Water Facilities and Provision of Water Utility Service" dated November 5, 2002 and recorded in the office of the Pima County Recorder on November 22, 2002 at Docket 11932, Page 611 (the "Original Agreement"). B. The Original Agreement addressed the water infrastructure rights and obligations re- lating to the development of the lands depicted on the Finai Block Plat of Gladden Farms Blocks l thru 25 and A thru F, recorded in the Pima County Recorder's office at Book 55 of Maps and Plats, Page 60 (the "Gladden Farms Project"). C. Gladden Farms LLC assigned its rights and obligations under the agreement to the Developer in October 2002. D. T110 DOVeIOpel' 1S t,�10 SOIe UOrief Cl� Of FIDELITY NATIONAL TITLE AGENCY, INC., all Arizona corporation, as trustee under Trust No. 30212, which is the title owner of the Develop- er's remaining land holdings within the Gladden Farms Project, and to the extent the trust's in- terests are implicated, is signing this instrument in its capacity as sole beneficiary of the trust. E. To date, the Developer has constructed and installed substantial potable and non- potabie water facilities to serve the Gladden Farms Project. F. Paragraph 3.4 of the Original Agreement requires the Town to reimburse the Develop- er $500 per meter for connection charges actually collected by the Town within the first #en years after the effective date of the Original Agreement for each initial potable connection made within the Gladden Farms Project, up to a total reimbursement of $2,700,000. G. The ten-year period for reimbursement under paragraph 3.4 of the Original Agreement ends in November 2012. {00031661.DOC / 2} - 1- 10/13/2012 11:27 AM FJC H. The number of initial potable connections made during the reimbursement period within the Gladden Farms Project has been significantly fewer than the Parties anticipated on the effective date of the Original Agreement for reasons including the major economic recession and the resulting significant slow-down in development activities in this market. I. The Parties desire to extend the period for reimbursement under paragraph 3.4 of the Original Agreement to more fairly reimburse the Developer for the substantial potable and non- potable water facilities constructed and installed, based on the benefit of hindsight and other fac- tors that have affected the development of the Gladden Farms Project and the surrounding area. AGREEMENT Now, ��FO�, in consideration of the foregoing premises and the mutual covenants set forth in this Amendment, the Parties hereby agree as follows: 1. Extension of reimbursement period. The reimbursement period set forth in the last sen- tence of subparagraph 3.4 (d) of the Original Agreement is hereby extended through Decem- ber 31, 2020, by modifying the sentence so that it reads as follows: "The agreement to make re- imbursements will automatically terminate on December 31, 2020, subject to the continuing ob- ligation to pay to the Developer any reimbursements accrued, but unpaid, as of December 31, 2020." 2. Effect on other provisions of the Original Agreement. Except as expressly modified in this Amendment, the provisions of the Original Agreement shall remain in full force and effect. 3. Miscellaneous 3.1. Binding effect. This agreement sha11 be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 3.2. Cancellation for conflict of interest. This agreement is subject to A.R.S. § 38-511, which provides for cancellation in certain instances involving conflict of interest. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. �-�� Towiv oF MARANA an Arizona municipal corporation By: Ed Ho ea, Mayor Date: // � �—/.� DEVELOPER: GLADDEN FOREST, L.L.C., an Arizona limited liability company By: Fo�ST C�'rY L� GROtrn, INC., an Ohio corporation, its managing member B• Dean Wingert, Senior ice President Date: /r/ov. �, 2 {00031661.DOC / 2} - 2- 10/13/2012 11:27 AM FJC AT�sT: � �.� .. . ��. _ ��'f.t� � i . - - :. .- The foregoing instrument was acknowledged before me on �pYL�Y1� �. ZDI2. by Dean Wingert, Senior Vice President of Fo�sT CITY LAr1v GROUp, INC., an Ohio corporation, managing member of Gr.aDDE1v Fo�sT, L.L.C., an Arizona limited liability company, on behalf ofthe L.L.C. _ (Seal) NOt KELLY PENUELA N�tary Public - 4rizona PIMA COUh fY My Comm. Exp.12-15-2013 � {00031661.DOC / 2} - 3- 10/13l2012 11.2TAM FJC County of Pima )