HomeMy WebLinkAboutResolution 2012-108 Gladden Farms first amendment to agreement for potable and non potableMARANA RESOLUTION NO. 2012-108
RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE
THE FIRST AMENDMENT TO TfJWN {JF 11rIA,KANA AGREEMENT FOR CONSTRUCTION
OF POTABLE AND NON-POTABLE �VATER FACILITIES AND PROVISION OF WATER
UTIL,ITY SERVICE FOR GLADDEN FARMS
WHEREAS the Town of Marana entered into a water service agreement with Gladden Farms
LLC dated l�Tovember 5, 2002 and recorded in the affice of the Pima County Recorder on
Navember 22, 20Q2 at Docket 11932, Page 611 (the "Original Agreement"); and
WF�REAS Gladden Farms LLC assigned its rights and obligations under the Original
Agreement ta GL�D�rt Fo�sT LLC, an Arizona limited liability campany (the "Developer"} in
Octaber 2002; and '
WHEREAS the Town and the Develt�per entered into a"First Amendment to Town of
Marana Agreement far �onstructian of Potable and Non-Patable Water Facilities and Pravision of
Water Utility Service for Gladden Farms" dated November 7, 2012 and recorded in the office af the
Pima County Recorder on November 16, 2012 at Sequence No.' 20123214642 (the "First
Amendment"); and
WHEREAS the Town and the Developer now desire to modify the Original Agreement and
the First Amendment to remove the Developer's remaining regional water infrastructure obligations
and to terrninate further developer reimbursements, sa that regional water infrastructure needed ta
provide future water infrastructure capacity for the geographic area that includes the Giadden Farms
Project may be provided by the Town as part of its development impact fee funded water
infrastructure capital impravements program; and
WHEREAS the Mayor and Council find that the terms and conditions of the second
amendment are in the best interest c�f the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL �F THE
TQWN OF NIARANA, ARIZONA, that the "Second Amendrnent to Town ofMara,na Agreement for
Construction af PQtable 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 E�ibit A is
hereby approved and the Mayor is hereby authorized and directed to execute it for and an behalf of
the Town of Marana, and the Town's Manager and staff are hereby directed and authorized to
undertake a11 other and further tasks required or beneficial to carry out the terms, obligatians, and
objectives of the second amendment.
Marana Resotution No. 2012-148 - 1- 12t11/2612 3:05 PM FC
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 18�' day of December, 2012.
Ed Honea, Mayor
ATTEST:
ocelyn . Bronson, Town Clerk
� APPRQ�D AS TO FORM:
, Town
Marana Resolution No. 2012-108 - 2- 12/11/2012 3:05 PM FC
SECOND AMENDMENT TO TOWN OF 11�7�ARANA
AGREEMENT FOR CONSTRUCTION OF POTABLE AND
NON-POTABLE WATER FACILITIES AND PROVISION OF
WATER UTILTTY SERVICE FOR GLADDEN �'+ARMS
TOWN OF MARANA, ARIZONA
Trtts SECOt�tD AMEt�tv�rtT is entered into by and bet�veen the Tournt oF MAxA1vA, an Ari-
zona municipal corporation (the "Town"), and GL�DEN Fo�sT LLC, an Arizona limited liability
company (the "Developer"). The Town and the Developer are sometimes referred to collectively as
the "Parties," either of which is sometimes individually referred to as a"Party."
RECITALS
A. The Town and Gladden Farms LLC, a Nevada limite`d 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 bl 1(the "Original Agreement").
B. The Original Agreement addressed the water infrastructure rights anc� obligations re-
lating to the development of the lands depicted on the Final Block Plat of Gladden Farms Blocks
1 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 Original Agreement
to the Developer in October 2002.
D. The Developer is the sole beneficiary of FIDELITY NATIONAL TITLE AGENCY, INC., an
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 �his instrument in its capacity as sole beneficiary of the trust.
E. The Town and the Developer entered into a"First Amendment to Town of Marana
Agreement for Construction of Potable and Non-Potahle Water Facilities and Provision of Water
Utility Service for Gladden Farms" dated November 7, 2012 and recorded in the office of the
Pima County Recorder on November 16, 2012 at Sequence No. 20123210642 (the "First
t�mendment").
F. The Town and the Developer now desire to modify the Original Agreement and the
First Amendment with the overall purpose of having the Town take over certain water infrastruc-
ture obligations to serve the geographic area that includes the Gladden Farms Project as part of
its development impact fee funded water infrastructure capital improvements program.
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AGREEMENT
Now, �xEFOxE, in consideration of the foregoing premises and the mutual covenants set
forth in this Second Amendment, the Parties hereby agree as follows:
1. Confirmation of Developer-provided reimbursable water infrastructure. Ta date, the
Developer has constructed and installed the generator addressed in the last sentence of paragraph
2.1(a)(iv) of the Original Agreement and the "Phase 1" and "Phase 2" water infrastructure as
identified on Exhibit C to the Original Agreement, and is entitled to reimbursement of
$591,017.48 of water infrastructure costs under the Original Agreement.
Z. Completion and termination of reimbursement. Through July 25, 2012, the Town has
reimbursed the Developer $580,500 under the Original Agreement. Within 30 days after the ef-
fective date of this Second Amendment, the Town shall reimburse the Developer an additional
$10,517.48 from Gladden Farms Project water connection fees paid to the Town since July 2012.
Upon receipt of that reimbursement, a11 Developer rights to reimbursement under the Original
Agreement and the First Amendment shall terminate.
3. Termination of Developer's remaining storage, fire protection, ph�se 3, and phase 4
water infrastructure obligations. The Developer's storage and fire protection infra,structure
obligations addressed in the first sentence of paragraph 2.1(a)(iv) of the Original Agreement and
the Developer's "Phase 3" and "Phase 4" water infrastructure obligations as identified on Exhibit
C to the Original Agreement are hereby terminated.
4. Confirmation of Developer's obligations for the construction of pipelines internal to
remaining unimproved Gladden Farms blocks. The Developer remains obligated to construct
all water distribution infrastructure (including and without limitation to potable and non-potable
waterline extensions, service lines, valves, meters, meter service, and water easements) contem-
plated by the Original Agreement and located within and required to serve the remaining unim-
proved Blocks 7/13,14, 15, 16, and 22/24 of the Gladden Farms Project.
5. Deletion of self-sustaining revenue requirement. The last two sentences of para-
graph 3.3 of the Original Agreement are hereby deleted.
6. Confirmation of Developer's performance under the Original Agreement. With refer-
ence to paragraph 5.1 of the Original Agreement, the Town acknowledges that the Developer is
not in default of any terms of the Original Agreement and that as of the date of this Second
Amendment the Developer has met and satisfied each and every condition of the Original
Agreement.
7. Effect on other provisions of the Original Agreement. Except as expressly modified in
this Second Amendment, the provisions of the Original Agreement shall rernain in full force and
effect.
8. Effect on the First Amendment. The provisions of the First Amendment are hereby ter-
minated.
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9. Miscellaneous
9.1. Binding effect. This agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and assigns of the Parties.
9.2. 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 Part�es have executed this Agreement as of the last date set forth
below their respective signatures.
Towrr:
Towtv oF MA�NA, an Arizona municipal
corporation
By:
d Honea, Mayor
Date: �� �/�— ��
DEVELOPER:
GLADDEN FOREST L.L.C., an Arizona limited
liability company
By: Fox�ST Ct'rx LANn GROUP, INC., an Ohio
corporation, its managing member
:
Dean Wingert, Senior Vice President
Date:
The foregoing instrument was acknowledged befare me on by
Dean Wingert, Senior Vice President of Fox�sT C�TY LA1vn GxouP, INC., an Ohio corporation,
managing member of GLADDEN FOREST, L.L.C., an Arizona limited liability company, on behalf
of the L.L.C.
(Sea1)
Notary Public
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A�sT:
ocelyn . Bronson, Clerk