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HomeMy WebLinkAboutRes 2022-45RESOLUTION 2022-45 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING A FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND N- SHEA GROUP, LLC AND PARK PLACE PROPERTIES, LLC. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, as follows: SECTION 1. The First Amendment to the Development Agreement between the Town of Fountain Hills, N-Shea Group, LLC, and Park Place Properties LLC dated June 17, 2016, is hereby approved in substantially the form and substance attached as Exhibit A and incorporated herein by reference. SECTION 2. The Mayor, the Town Manager, the Town Clerk, and the Town Attorney are authorized and directed to execute all document and take all steps necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills October 18, 2022. FOR THE TOWN OF FOUNTAIN NILLS: Gin y y, Mayor n -Dicke REVIEWED BY: Grady F. Miller, n Manager ATTESTED TO: Linda Mendenhall, Town Clerk APPROVED AS TO FORM: Aaron D. Amson, TowrrAttomey EXHIBIT A TO RESOLUTION 2022-45 [First Amendment to Development Agreement] See following pages. WHEN RECORDED RETURN TO: Town of Fountain Hills Attn: Town Clerk 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND N-SHEA GROUP, LLC AND PARK PLACE PROPERTIES, LLC THIS FIRST AMENDMENT (this "Amendment') is made and entered into October 18. 2022 (the "Effective Date") by and between the Town of Fountain Hills, an Arizona municipal corporation (the "Town"), and N-Shea Group, LLC, an Arizona limited liability company (the "Developer") and is acknowledged by I'ark Place Properties, LLC, an Arizona limited liability company (the "Owner"). RECITALS A. The Town. the Developer, and the Owner entered into a Development Agreement dated June I7. 2016, Maricopa County Recording Number 20160478461 ("Development Agreement-). B. A dispute arose between the Parties concerning the interpretation of the Development Agreement, which the Parties resolved through a separate Settlement Agreement and Release ("Settlement Agreement"), which is approved and executed by the Parties concurrently with this Amendment. C. The Parties now desire to amend the Development Agreement as provided in this Amendment to allow Developer to complete the remaining phases of the Project as defined in the Development Agreement. FIRST AMENDMENT NOW, THEREFORE, the Development Agreement is amended as follows: 1. Incorporation of Recitals. The Recitals are incorporated by this reference as if fully set forth herein. 2. Phase I Painting. Developer shall repaint all exterior Phase 1 buildings using the same color scheme as approved for the Phase II and III buildings, and Developer shall also paint previously unpainted/unfinished concrete surfaces such as beams, patios and other edges using the same color scheme as approved for the Phase II and III buildings; provided, however. painting shall be completed no later than contemporaneously with the painting of Phase II or III buildings. 3. Phase I Screening. Developer shall install painting, plantings and/or trellises ("Screens") in lieu of the green screens for buildings C and D as shown on the approved Concept Plan and construction drawings for Phase I; provided that such Screens shall not require any structural change to the parking area or other portions of buildings C and D and that no change will be required that reduces the air flow required by law in the parking garages as determined by Shums Coda. 4. Section 2 is amended to allow Developer twelve (12) months from the Effective Date of this Amendment ("DA Extension Deadline") to obtain permits for construction of Buildings B, E, and F. The Parties further agree that so long as the permits for construction of Buildings B, E, and F are obtained within the DA Extension Deadline, Developer shall be allowed to proceed with development of Phases II and III on the Property in accordance with the Development Agreement as modified by this Amendment. 5. Concept Plan Review. The Parties acknowledge that the Concept Plans for Phases II and III were approved by the Town subject to the stipulations of the Town Council. The Town agrees that it will provide comments on the Concept Plans submitted by Developer under the terms of the Council stipulations only within 10 days of the approval of this Amendment by the Town. The Town agrees to expeditiously process Plaintiffs' responses to such comments. In the event of any dispute between Plaintiffs and Town staff concerning application of codes and ordinances during review of the Concept Plans, Plaintiffs and Town agree to use Shums Coda as an intermediary. 6. Section 3.3 is amended to reflect that Phases II and III shall be developed concurrently. "Developed concurrently" shall mean that building permits for both phases may be issued separately prior to vertical construction on either, but that the Phases shall be built in a staged manner typical to customary construction practices when constructing multiple buildings of similar scale and location 7. Developer's obligations under Section 4.4(C) and 4.5 concerning the Pocket Park are deemed satisfied and Developer has no further obligation under those sections. 8. Section 6.2 is amended to allow construction to commence on Phases II and III after the DA Extension Deadline provided that the permits for buildings B, E, and F are obtained prior to its expiration. 9. The Developer agrees to make a reasonable, good faith effort to locate transformers installed after the Effective Date of this Amendment to the rear of the property, not along the Avenue of the Fountains. 10. Section 9.2 of the Development Agreement is amended to include the Settlement Agreement and this Amendment as constituting the entire agreement between the Parties. In the event of conflict between the Development Agreement and Settlement Agreement, the Settlement Agreement shall prevail. I I. No other changes. All other terms and conditions of the Development Agreement shall remain in full force and effect unless explicitly modified by this Amendment or the Settlement Agreement. IN WITNESS WHEREOF, the undersigned executed this Amendment on the dates below: TOWN OF FOUNTAIN HILLS GinDidYey, Mayor ATTEST: Li4Sda Mendenhal Town Clerk APPROVED AS TO FORM: N-SHEA GROUP, LLC PARK PLACE PROPERTIES, LLC IN WITNESS WHEREOF, the undersigned executed this Amendment on the dates below: TOWN OF FOUNTAIN HILLS N-SHEA GROUP, LLC Ginny Dickey, Mayor Date /" �/O-2_0Z.1"- (;7•7041i M c-C/ArAt pyf .n C et PARK PLACE PROPERTIES, LLC / �1 ���as of 10/18/22 Ken Okamoto, Authorized Signatory