HomeMy WebLinkAboutProperty - Acquisitions - 902 06 Logan's Crossing/Fake Property-Condemnation Action TOWN OF ORO VALLEY
SETTLEMENT AGREEMENT
4
This (' Aeement") � into this � da � or
entis entered � y Serilemcnt Agrcerra
2007, by and between Stephen and Kay Fake, (the "Owners"),
Y
and the
To of Oro Valley, an Arizona Municipal Corporation, (the "Town"),,
collectively referred to as the "Parties".
RECITALS
A. The Owners are the owners of real property in the Town. of Oro Valley,
as tax parcel 224-386-440 in the Office of the Pima County
identified
Assessor's Office, including ail improvements located thereon.
B. The Town wishes to acquire a non-motorized, multi-purpose easement ("the
Easement") over a portion of said property. Owners shall convey to the
Town the Easement.
C. The Town filed an eminent domain action in the Pima County Superior Court,
Case No. C20061306 (the "Litigation').
D. Owners and Town seek to resolve the transfer of the Property and all issues
related to the Litigation.
E. Owners have obtained and filed with the Town a Disclaimer of Interest from
Wells Fargo Bank, stating that for the purposes of the Litigation, the Court
may enter a Final Order of Condemnation in favor of the Town for the
Easement.
For the mutual promises contained herein and valuable consideration given. the
Owners and the Tovv» agree as follows:
1 . The Recitals set forth above are incorporated into this Agreement by
reference.
2. The Easement will:
a. Allow the size of tax parcel 224-386-440 to remain the same.
b. Allow full access to the Owners septic tank as needed.
c. Allow landscape vehicles to access the Owners back yard as
needed.
d. Protect against access by motorized vehicles with "step over"
trail barriers installed by the Town.
e. Transfer all liability related to the use of the Easement by the
Town and by the public to the Town.
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f. Result in no change to the existing trail and its dirt/earthen
surface established across the Owners real property.
3. The Town will perform maintenance on the Easement on a quarterly basis,
a minimum of four (4) times a year.
4. Closing shall be on or before (closing Date) at the
offices of First American Title, 1880 E. River Road. #120, Tucson,
Arizona 85718 (Escrow Agent).
5. Upon closing; Owners will execute the Grant of Non-Motorized, Multi-
Use Easement in the form attached as Exhibit "A", transferring the re:
property to the Town.
6. Upon closing, the Town will deliver payment to Owners in the amount o
Twenty Five Thousand Dollars ($25,000.00).
7. The Town shall pay all closing costs associated with the execution of thi
Settlement Agreement including but not limited to escrow fees and di(
expense of the title policy.
8. On or before the date of closing, Owners shall pay all taxes and
assessments which are a lien on the Property as of the date of closing. The
Escrow Agent shall -be authorized to prorate all taxes and assessments as
of the Closing Dale.
9. This Settlement Agreement shall serve as escrow instructions to the
Escrow Agent.
10. Owners release and forever discharge the Town of and from all manner of
action, causes of action, claims, contracts, or demands whatsoever in law
or in equity which the Owners may now have related to the Litigation.
The Town hereby releases and forever discharges the Owners of and from
all manner of action, causes of action, claims, contracts, or demands
whatsoever in Jaw or in equity which the Town may now have against the
Owners related to the Litigation.
1
I. The Town and the Owners expressly agree that the terms and provision of
this Settlement Agreement shall be deemed confidential. The Town and 4_
Owners and their attorney agree not to release any information concerning
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the Settlement Agreement to the general public including but not limited
to attorneys and the media, including any press releases or other
statements to the media.
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12. Each party shall pay their own costs, including but not limited to attorneys
fees, appraisal fees and engineering fees as contemplated by ARS § 12-
120(B).
13. Upon the execution of both this Agreement and the Grant of Non-
Motorized, Multi-Use Easement, the Town shall send to the Superior
Court of Pima County a Notice of Release of Lis Pendens.
14. Pursuant to the Town of Oro Valley Town Code, Article 7-7 and A.R.S. §
28-7205, the Town shall, within 120 days of the closing of this
Agreement, vacate an unused portion of a certain 10-foot Equestrian Trail,
as described hereto as Attachment 1.
15. All representations and obligations contained herein including, without
limitation, those in the preceding paragraph, shall survive the transfer of
the Easement to the Town.
16. This signed document shall constitute the entire Agreement between the
parties and no modification or amendment to this Agreement shall be
binding unless in writing and signed by both parties. The performance of
this Agreement constitutes the entire consideration by the Town, including
all just compensation and severance damages to the remainder Easement
and shall relieve the Town of all further obligation or claims relating to the
Easement.
OWNERS: /
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SteP ldn Fake Kay Fak•
_____57-//1 -L/ f �� /----'A/itzi . / 4--
Print Name Printed Name
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Date:
Date. ____ _(/ L _ _
Date. `7
APPROVED AS TO FORM:
-. 1-•."`-tz__._ ";e1
Damian Fellows Attorney for. Fakes
Date: 5-/q/07
INI,Lnlkihnrrn►o,l_ 1pnnen\LOP,'Crocclnp p.^.....„t 1,It\"Uh- AF.-tn".".1.'drt
State of Arizona )
) ss.
County of Pima )
On this A day of , 2007,-Stephen Fake, known to me to
be the person whose name subscribed to the within instrument, personally appeared
before me and acknowledged that he/shc executed the same for the purposes contained.
Given under my hand and seal this ILI day off11161i 2007.
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)0FFICIAL SEAL
M Commission Expires: C;iyi_.jn )CCt11*. ANTONIA SPATZ
6*1 \ANTONI:-.,:*;- .,,
f ,,;o NOTARY PUBLIC-ARIZONA
''k' '14444*1-147 PIMA COUNTY
State of Arizona ) d.; •.4
My Comm. Exp. Oct. 20, 2009
) sS. _
County of Pi.ma )
On this id day of raii* . 2007, Katierake, known to me to be
the person whose name isL's. ribed to the within instrument, personally appeared before
me and acknowledged that he/she executed the same for the purposes contained.
Given under my hand and seal this Id day of r1 01,12_: . 2007..
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My Commission Expires: i ,; i,' ;`i :.
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4,� NOTARY RY PUBLIC-ARIZONA
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vti� OF ORO VALLEY :
TOWN PITA COUNTY
My Comm. Exp. Oct. 20, 2009
/ / , ____._____________
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Melinda G r 1 . . Town Attorney
Date: . 4/ 0 7
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EXHiBIT "A"
NrI' OF NON-MOTORIZED,
MULTI-USE EASEMENT
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When Recorded Return To:
Melinda Garrahan
Town Attorney
Town of Oro Va 1 lcy
11000 N. La Canada Drive
Oro Valley, Arizona 85737
GRANT OF NON-MOTORIZED, MULTI-USE EASEMENT
For valuable consideration, Stephen and Kay Fake ("Grantors") hereby grant,
sells and conveys, declares and reserves to the Town of Oro Valley ("Grantee'') as the
Owner of a parcel or property within the Town of Oro Valley, the following non-
motorized, multi-use easement, for use by said Grantee and the general public:
An easement for entry upon, ingress and egress of a non-motorized, multi-use Easement
across and through the property within the Town of Oro Valley, as legally described in
Exhibit A. attached hereto and incorporated herein by this reference. The Easement will:
1. Allow the size of tax parcel 224-386-440 to remain the same.
2. Allow full access to the Owners septic tank as needed.
3. Allow landscape vehicles to access the Owner's back yard as needed.
4. Protect against access by motorized vehicles with "step over" trail barriers
installed by the Grantee.
5. Transfer all liability related to the use of the Easement by the Grantee and
by the public to the Grantee.
6. Result in no change to the existing trail and its earthen surface established
across the Grantors real property.
The Grantee will perform maintenance on the Easement on a quarterly basis. a
minimum of four (4)times a year.
THIS EASEMENT is granted this
.,.' - dayof /,/j )c' , 2007.
GRANTORS:
StepKen Fake
777-74----
I
Kav Fa e
STATE OF ARIZONA )
) ss
COUNTY OF PIMA )
On this ____Oday of_____Mek L ' . 2007 by Stephen ke who is known to me
or has been satisfactorily identi -I d as the Owner of a certain portion of land described in
Attachment 1 and is duly authorized to sign on matters relating,to/cal propc
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NdtalyP:= - ________________4„)_—
OFFICIAL SEAL
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NI Commission Expires:
(..-:,..:0,17.4%;:44;:!*-2.71.1,:;f0. I4NT ASPATZRY PUBLI 0 A
4iiiii'OP PIMA COUNTY
STATE OF ARIZONA ) My Comm Exp. Oct. 20, 2009
) ss
COUNTY OF PIMA )
On this dayof / . ,� . 2007 by Kay Fake who is known to me or
_
has been satisfactorily identifiitd as the Owner of a certain portion of land described in
Attachment 1 and is duly autho ized to sign on matters relatin.. to real pro'er —�
C�PP IA L SEALONA
My Commission Expires: 4,. ,
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�y Comm. Exp_ Or_t 20, 2009
GRANTEE: ---
TOWN OF ORO \'A V
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1\ elinda rraha . Town Attorney
ATTEST: APP: =VED AS TO FORM:
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Kathryn Ctivcji r, Town ClerkJo ph N. Agrews, Chief Civil
D',uty Town Attorney
--- Y2-t eye. li zn 1Date: � �
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EXHIBIT "A"
LEGAL DESCRiPTION
OF THE EASEMENT
TO BE CONVEYED TO THE TOWN
- 1
PROPERTY IDEM '1'CATTOlY-PART TO BE A CQUlRED
Accordiug to a survey peiformed by Hawkeye Engineering, the Part to be Acqua
cousin of 2,499.2 square feet and is legally descaed as follows:
EQUESTRIAN DESCRIPTION
An easement for evesirian purposes, 10 feet in width ova Lot 28 of Saddle Valley II, a
ittbdivision of Pima County, Arizona, as recorded in Book 44,page 38 of Maps and Plats in the
Office of the Rtconia of said Pima Coun4y, and lying within Section 14,Township 12 South,
3 Epi,Gia end Salt-River Mrxidian, Pima County,Arizona, described as follows:
The.soutlyvvingtviy 10.00 fit of Lost 28 as it adjoins Lot 27 an gaid plat of Sta lie Valley It
The sidelines of said easemeut to be shortrotd or lengthened to intexscct the southeastztlyom .
orf,way line of SaddLehorn Drive and tpiatcrscct the southeasterly line of said Lot 2.8;
ContAining 2x497. feet of
s�4uar�c land,more or less.
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ATTACHMENT I
MAPOF
PORTION QFEQUESTRIAN TRAIL
TO
BE VACATED
IN YELLOW(HIGHLIGHTED
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TOWNSHIP 12 SOUTH E i -; .
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SUBJECT AREA `-'
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RANGE 13 EAST SECTION 14
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PIMA COUNTY, ARIZONA
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PIMA COUNTY DEPARTMENT OF TRANSPORTATION
Alli TECHNICAL SERVICES DIVISION
060018 --crDRAWING NOT TO SCALE DRAWN BY: R. BILLINGS
DATE: JAN 2006
RESOLUTION NO. (R) 06- 08
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF ORO
VALLEY, ARIZONA, AUTHORIZING THE TOWN ATTORNEY TO FILE A
CONDEMNATION ACTION TO ACQUIRE AN EASEMENT ACROSS THE FAKE
PROPERTY, OTHERWISE KNOWN AS LOGAN'S CROSSING, AND DECLARING
AN EMERGENCY TO EXIST.
WHEREAS, Oro Valley is a municipal corporation within the State of Arizona and is vested
with all the rights, privileges and benefits and entitled to the immunities and exemptions granted
to municipalities and political subdivisions under the Laws of the State of Arizona; and
WHEREAS, pursuant to A.R.S. § 12-1111, the Town has the right to seek condemnation of the
easement as long as the easement will be exercised for public use and compensation be made for
the taking; and
WHEREAS, the Town requires the easement for a public right-of-way for non-motorized, multi-
use easement for the public; and
WHEREAS, the property in question, is located within the Town, as depicted in Exhibit "A",
attached hereto, is necessary to continue use of that property for a non-motorized, multi-use trail;
and
WHEREAS, the Town Council deems it necessary and in the interest of the residents of the
Town of Oro Valley to authorize the Town Attorney to proceed with formal condemnation
proceedings to acquire the easement across the Fake property, otherwise known as Logan's
Crossing for use as an equestrian trail and a non-motorized, multi-use trail.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Town Council of the Town of
Oro Valley, Arizona, that the Town Attorney is hereby authorized to proceed with the filing of a
condemnation action to acquire the easement (as more particularly described in Exhibit "B"
attached hereto).
BE IT FURTHER RESOLVED that it is necessary for the preservation of the health and safety
of the Town of Oro Valley, Arizona that an emergency is declared to exist and this Resolution
shall become immediately operative and in force from and after the date of adoption hereof.
PASSED AND ADOPTED by the Mayor and Town Council of the Town of Oro Valley,
Arizona this 22nd day of FEBRUARY , 2006.
TOWN OF ORO VALLEY
Paul H. Loomis, Mayor
F:\Com Dev\Parks&Rec\Projects\Logan's Crossing Esquestrian Trail\011806 Resolution-Condemnation.doc Town of Oro Valley Attorney's Office/ca/012506
ATTEST: APPROVED AS TO FORM:
I'. -.../ 1
Kathryn E. Cuvelier, Town Clerk elinda Gar . n, Town Attorney
F:\Com Dev\Parks&Rec\Projects\Logan's Crossing Esquestrian Trail\011806 Resolution-Condemnation.doc Town of Oro Valley Attorney's Office/ca/012506
EXHIBIT “A”
MAP OF PROPERTY
F:\Com Dev\Parks&RecVrojects\Logan's Crossing Esquestrian Trail‘011806 Resolution-Conclemnation.doc Town of Oro Valley Attorney's Office/ea/012506
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EXHIBIT "B"
LEGAL DESCRIPTION OF
PROPERTY
FACom Dev\Parks&Rc\ProjccL\Logan's Crossing Esquesulan Tr2i1\01 1806 Resolution-Condemnation.doc Town of Oro Valley Attorney's O(Ticc/ca/012506
PROPERTY IDENTIFICATION—PART TO BE A CQ UIRED
According to a survey performed by Hawkeye Engineering, the Part to be Acquired
consists of 2,499.2 square feet and is legally described as follows:
MULTIPLE USE / NON-MOTORIZED
TRAIL EASEMENT DESCRIPTION
An easement for equestrian purposes, 10 feet in width over Lot 28 of Saddle Valley I1, a
subdivision of Pima County, Arizona, as recorded in Book 44, page 38 of Maps and Plats in the
Office of the Recorder of said Pima County, and lying within Section 14, Township 12 South,
Range 13 East, Gila and Salt River Meridian, Pima County,Arizona, described as follows:
The southwesterly 10.00 feet of Lot 28 as it adjoins Lot 27 on said plat of Saddle Valley H;
The sidelines of said easement to be shortened or lengthened to intersect the southeasterly right-
of-way
ht-
of-way line of Saddlehom Drive and to intersect the southeasterly line of said Lot 28;
Containing 2497 square feet of land, more or less.
(co LAND
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ALAN W. 53
STEP-HENS
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Southwest Appraisal Associates
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TOWN OF ORO VALLEY `` t.
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Page 1 of 2
COUNCIL COMMUNICATION MEETING DATE: March 21, 2007
TO: HONORABLE MAYOR AND COUNCIL
FROM: MELINDA GARRAHAN, TOWN ATTORNEY
SUBJECT: REQUEST FOR COUNCIL AUTHORIZATION FOR THE TOWN ATTORNEY
TO SETTLE THE ACQUISITION OF THE LOGAN'S CROSSING MULTI-USE
TRAIL FOR THE AMOUNT OF $25,000.00
SUMMARY: On August 30, 2005, the Town was notified by Pima County that aortion of the Logan's
Crossingp
Equestrian Trail would be closed on September 15, 2005 by the adjacent homeowners, Stephen and
Kay Fake. The Fakes had learned that the portion of the trail physically located on theirro ert was not
p p y
actually subject to the Pima County trail easement. Following through on their threat, the Fakes did close the
trail, and the Town began immediate negotiations to have the trail reopened and, eventually, to obtain
ownership of the trail.
Early negotiations with the Fakes to purchase the trail and keep it open came to a standstill over the
requirement by the Fakes that the Town allow and enforce only equestrian use of the easement. The Fakes
wanted the Town to enforce the easement against non-motorized general public use, including pedestrian use.
The problem was that any failure by the Town to enforce easement conditions to the satisfaction of the Fakes
could have resulted in the Fakes suing the Town to revoke any strictly equestrian easement we might have
obtained. Another issue arose from the title report ordered by the Town. The title report discovered a mortgage
p
on the property that needed to be partially released so that the Town would not acquire a multi-use trail subject
to the mortgage.
With matters at a stalemate, the Council found it necessary and in the interest of the residents of the
Town of Oro Valley to authorize the Town Attorney to proceed with formal eminent domaing
roceedin s to
p
acquire the non-motorized, multi-use trail easement across the Fake property. The Fakes then hired the law
firm of Stubbs and Schubart to represent them in the litigation. After discussing the issues with Larry Schubart,
an interim agreement was reached keeping the trail open as a non-motorized, multi-use and equestrian trail
while the parties continued to negotiate a settlement.
Although the Town had initially offered $16,000.00 for the purchase of the multi-use trail easement, this
offer was neither accepted nor rejected. Recently, the Town's offer was countered by receipt of an offer to
p
settle for $25,000.00. In addition to this offer, the Town also received paperwork releasing the non-motorized
multi-use trail easement from the existing mortgage.
As mentioned above, the trail physically located on the Fake property was not located where the trail
was originally platted. This issue ties directly to one of the settlement terms required by the Fakes. The Fakes
requested that the Town abandon the unused easement to the Fakes and their neighbors once Pima County
transferred the trail easement not located on their property to the Town. David Andrews and Ainsley Reeder
were made aware of this early on in the process and determined that abandonment would be appropriate
ro riate
because the Town could make no use of the originally platted trail easement fragment as it was not linked to the
trail system. The transfer of the trail easement to the Town has now taken place. Therefore settlement of the
eminent domain case, if approved, will involve future Council action to abandon the unused trail fragment to
the Fakes and their neighbors. As a matter of process, the trail will be divided in half and each abutting
-.r
TOWN OF ORO VALLEY
Page 2 of 2
COUNCIL COMMUNICATION MEETING DATE: March 21, 2007
neighbor will obtain title to the half of the trail that abuts their property using the same abandonment process
that the Town has always used to abandon property remnants.
The Fakes' offer of $25,000.00, although $9,000.00 more than the Town's original offer is still
substantially less than the cost of a full court proceeding and not outside of the realm of"just compensation"
contemplated by the Arizona Constitution. Additionally, if the Council decides to pay the $25,000.00, the
Town will obtain the easement to the multi-use trail much sooner than otherwise through litigation. Therefore,
it is the recommendation of the Town Attorney to accept the Fakes' counteroffer of$25,000.00, and authorize
the Town Attorney to move forward and settle the case at that amount.
FISCAL IMPACT: $25,000.00
ATTACHMENT: N/A
SUGGESTED MOTION: I move to accept the Fakes' offer of $25,000.00 for the multi-use trail easement
over their property and to authorize the Town Attorney to take all action necessary to settle the pending eminent
domain litigation.
41°N, iv a) gpN
• i da G.enhan, Town Attorney
Ainsley Reeder, Varks & Recreation Director
erene Watson, Assistant Town Manager
atnielk.
David Andrews, Town Manager