EXHIBIT K Agreement No A-COS Resolution No.

Transcription

1 EXHIBIT K Agreement No A-COS Resolution No. FIRST AMENDMENT TO IWDS PIPELINE CAPACITY AGREEMENT DESERT MOUNTAIN PROPERTIES THIS FIRST AMENDMENT TO IWDS PIPELINE CAPACITY AGREEMENT FOR DESERT MOUNTAIN PROPERTIES (this First Amendment ) is made as of the 31st day of December, 2010 between THE CITY OF SCOTTSDALE, an Arizona municipal corporation ( City ) and DESERT MOUNTAIN CLUB, INC., an Arizona non-profit corporation (the Club ). RECITALS A. The City entered into that IWDS Pipeline Capacity Agreement for Desert Mountain Properties dated as of May 13, 2002 between the City and Desert Mountain Properties Limited Partnership, a Delaware limited partnership ( DMP ) (Agreement No COS) (the 2002 IWDS Agreement ). B. The 2002 IWDS Agreement pertains to certain real property described on Exhibit A to the 2002 IWDS Agreement (the Property ). C. The Property includes six golf courses (the Golf Courses ), Parcel No. 16, the legal description of which is found on page 70 of Exhibit A to the 2002 IWDS Agreement ( Parcel 16 ), and Parcel No. 19, the legal description of which is found on pages 71 and 72 of Exhibit A to the 2002 IWDS Agreement ( Parcel 19 ). D. On or about the date hereof, DMP has transferred and conveyed all of the Property to the Club, except for (1) Parcel 16, and (2) portions of Parcel 19. E. That portion of Parcel 19 transferred and conveyed to the Club by DMP is as described on Schedule 1 attached to this First Amendment (the Conveyed Portion of Parcel 19 ). F. Since the execution of the 2002 IWDS Agreement, DMP has updated the legal description of the Golf Courses, as described on Schedule 2 attached to this First Amendment (the Golf Courses Legal Description ). G. Pursuant to that Assignment and Assumption of 2002 IWDS Agreement and Disclaimer of Interest dated as of the date hereof between DMP and the Club, DMP has assigned all of DMP s right, title, interest and obligations in, to, under and with respect to the 2002 IWDS Agreement to the Club, and the Club has assumed DMP s right, title, interest and obligations in, to, under and with respect to the 2002 IWDS Agreement. H. As provided in Section 19(b)(i) of the 2002 IWDS Agreement, the Club, as the Owner under the 2002 IWDS Agreement, wishes to amend the 2002 IWDS Agreement for the sole purpose of changing the legal description of the Property by deleting all of Parcel 16

2 Agreement No A-COS Resolution No. and those portions of Parcel 19 that are outside the boundaries of the Conveyed Portion of Parcel 19 and replacing the prior legal description of the Golf Courses with the Golf Courses Legal Description. I. Pursuant to Section 13 of the 2002 IWDS Agreement, the City is willing amend the 2002 IWDS Agreement by changing the legal description of the Property to delete Parcel 16 and those portions of Parcel 19 that are outside the boundaries of the Conveyed Portion of Parcel 19, and to replace the prior legal description of the Golf Courses with the Golf Courses Legal Description. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the City and the Club agree as set forth below. 1. Amendment. The City and the Club hereby delete all of Exhibit A from the 2002 IWDS Agreement and substitute therefor (a) the legal description for the Conveyed Portion of Parcel 19, which is attached as Schedule 1 to this First Amendment, and the Golf Courses Legal Description, which is attached as Schedule 2 to this First Amendment. From and after the date of this First Amendment, the term Property contained within the 2002 IWDS Agreement shall mean all of that real property described on Schedules 1 and 2 attached to this First Amendment, and Exhibit A attached to the 2002 IWDS Agreement shall include legal description for the Conveyed Portion of Parcel 19 and the Golf Courses Legal Description, as described, respectively, on Schedules 1 and 2 attached to this First Amendment. 2. No Further Amendment. Except as stated in Section 1 of this Amendment, all other covenants, terms and conditions of the 2002 IWDS Agreement shall remain in full force and effect from and after the date of this First Amendment. 3. Counterparts. This First Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 4. Governing Law and Venue. This First Amendment shall be construed and interpreted according to Arizona law. Any proceedings regarding this First Amendment shall be brought in Maricopa County, Arizona. 5. Attorneys Fees. If any action is brought by any party to this First Amendment regarding its rights or obligations under this First Amendment, the prevailing party in such action shall be entitled to reasonable attorneys fees and court costs from the other party as determined by the court. 6. Further Actions. The City and the Club agree to promptly take such further actions reasonably required to put into effect and document the amendment contained in this First Amendment. 2

3 Agreement No A-COS Resolution No. 7. Binding Effect. This First Amendment shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns. 8. Effectiveness. Without regard to the date of this Agreement (which is set forth above for reference purposes only), this First Amendment shall become effective as of the date of the conveyance by DMP to the Club of the Conveyed Portion of Parcel 19, as evidenced by a special warranty deed recorded in the Records of Maricopa County, Arizona. IN WITNESS WHEREOF, the City and the Club have executed this First Amendment as of the date set forth above. [Signatures Appear on Following Pages] 3

4 Agreement No A-COS Resolution No. CITY THE CITY OF SCOTTSDALE, an Arizona municipal corporation By: Name: Its: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney THE CLUB: DESERT MOUNTAIN CLUB, INC., an Arizona non-profit corporation By: Name: Its: By: Name: Its: 4

5 EXHIBIT K Agreement No A-COS Resolution No. SCHEDULE 1 Legal Description of Conveyed Portion of Parcel 19 All of Parcel 8 of that "Map of Dedication and Parcel Map North Scottsdale Aquifer Storage and Recovery Project" according to that plat recorded in the office of the County Recorder of Maricopa County, Arizona in Book 754 of Maps, Page 30.

6 EXHIBIT K Agreement No A-COS Resolution No. SCHEDULE 2 Golf Courses Legal Description [begins on following page] DSMTN/ / v.1