HomeMy WebLinkAboutRes 2023-20RESOLUTION NO. 2023-20
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING AN AMENDMENT TO THE
AMENDED AND RESTATED FINAL SETTLEMENT AGREEMENT
BETWEEN THE TOWN AND MJFFH7, LLC.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. The Amendment to the Settlement Agreement between the Town of Fountain
Hills and MJFFH7, LLC is hereby approved in substantially the form and substance attached
hereto as Exhibit A and incorporated herein reference.
SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are
hereby authorized and directed to execute all documents 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,
May 16, 2023.
FOR THE TOWN OF FOUNTAIN HILLS:
Ginr�Dickey, Mayor C.
REVIEWED BY:
Rachael Goodwin, G. Town Manager
ATTESTED TO:
L ..a Mendenhall, Town Clerk
APPROVED AS TO FORM:
EXHIBIT A
TO
RESOLUTION NO. 23-02
[Amendment to Final Settlement Agreement]
See following pages.
AMENDMENT TO FINAL SETTLEMENT AGREEMENT
THIS AMENDMENT TO THE AMENDED AND RESTATED FINAL SETTLEMENT
AGREEMENT ("Amendment") dated m (i, 2023 ("Effective Date") is between the
Town of Fontain Hills, an Arizona municipal corporation ("Town") and MJFFH7, LLC, an
Arizona limited liability company ("MJFFH7"). The Town and MJFFH7 are each referred to
herein individually as a "Party" and collectively as the "Parties"
RECITALS
A. On May I, 2014, the Town, MCO Properties, Inc., a Delaware corporation, MCO
Properties Inc., a Delaware corporation, successor -in -interest to MCO Properties LP.
d/b/a MCO Properties Limited Partnership, a Delaware limited partnership doing
business in the State of Arizona ("MCO") EN LLC d/b/a EN at Fountain Hills LLC, a
Delaware limited liability company ("EN"') and Adero Canyon LLC, a Delaware limited
liability company ("Adero") entered into a Final Settlement Agreement ("Restated
Agreement") regarding the development of the Adero Canyon Property and the Eagles
Nest Property in Fountain Hills, Arizona.
B. The Eagles Nest Property is now owned by MJFFH7. A substantial portion of the Eagles
Nest Property has been constructed pursuant to the Restated Agreement. MJFFH7
submitted a preliminary plat to the Town for the development of the property legally
described and depicted on Exhibit I attached hereto and incorporated herein by this
reference ("Parcel 2"). The development of Parcel 2 may be referred to herein as
"Eagles Nest Phase II". The Parties intend for MJFFH7 to continue to develop the
Eagles Nest Property as contemplated by the Restated Agreement, except as modified by
this Amendment. The Parties desire to amend certain portions of the Restated Agreement
subject to the terms and conditions set forth below. Nothing in this Amendment shall
affect the Adero Canyon Property or the development thereof as set forth in the Restated
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, the following mutual covenants and conditions, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Town and
MJFFH7 agree as follows:
Page I of 8
I. Approved Density. Paragraph 6.2.1 of the Restated Agreement is amended so that MJFFH7
shall be permitted to develop, and the Town shall approve for development, final parcel
plats and site plans for an additional 14 lots within Parcel 2 and no more than 259 single-
family lots within the Eagles Nest Property, which shall increase the total lots within the
Eagles Nest Property and Adero Canyon Property to 602 lots/dwelling units. The number of
lots shall not include the 21-acre lot which is legally described as set forth in Exhibit 2
("North Heights Lot')
2. Limitations Upon Re -Subdividing. Paragraph 6.2.4 of the Restated Agreement is amended
so the 424 single family lot restriction is increased to 438 single family lots, which shall
result in an increase of 14 single family lots within Parcel 2 of the Eagles Nest Property.
3. Retaining Walls. Paragraph 6.3.4 of the Restated Agreement is amended as it pertains to
Parcel 2 of the Eagles Nest Property as follows:
The Town hereby approves (i) retaining walls with an average height of (a) ten feet for cut
slopes without handrails and (6) ten feet for fill slopes without handrails, unless a sidewalk
or pathway is within five feet of the fill retaining wall or unless a roadway curb is within ten
feet of a fill retaining wall, and (ii) that bridge and con -arch abutments, headwalls, and wing
walls are not considered retaining walls ("Mountain Retaining Wall Standard"). The
Town agrees that the applicable Subdivision Standards shall be modified in conjunction
with its approval of the final parcel plat of Parcel 2 of the Eagles Nest Property to allow
development of the property in accordance with the Mountain Retaining Wall Standards.
4. Exempt Areas. Paragraph 6.5.2 of the Restated Agreement shall be amended as it pertains
to Parcel 2 of the Eagles Nest Property as follows:
The Town hereby approves development of Parcel 2 of the Eagles Nest Property with an
average lot disturbance not to exceed 22,700 square feet per single-family lot within Parcel
2 of the Eagles Nest Property and a total allowable disturbance of 908,000 square feet for
the Parcel 2 of the Eagles Nest Property (Parcel 2 Disturbance Allowance"). The
disturbance area utilized on each lot shall be allocated by MJFFH7 at its discretion. All
temporary and permanent subdivision improvements, including but not limited to all road,
utility line and water tank construction as well as the areas covered by driveways and related
vegetation as provided in section 6.5.5 of the Restated Agreement are exempt (i.e. with
respect to subdivision infrastructure and other such areas, all necessary disturbance will be
permitted without disturbance penalty). Any disturbed areas for predevelopment
investigations, testing, relocation or recovery including, but not limited to, geotechnical,
environmental, archaeological or power line relocation work as well as any future or historic
trails and roads used by hikers, bicyclists, recreational vehicles or utility equipment shall not
be counted towards the total amount of hillside disturbance within the Property and, after
revegetation with native plant materials, shall be accepted by the Town as undisturbed
hillside areas.
Page 2 of 8
5. Increased Cut Allowances. The following lots within Parcel 2 of the Eagles Nest Property
as reflected on the plat for Eagles Nest Phase II shall have cut allowances of 20 feet: Lots
192, 193, 194, 195, 196 and 197.
6. Flag Lots. .the following lots within Parcel 2 of the Eagles Nest Property as reflected on the
plat for Eagles Nest Phase II may be Flag Lots: Lots 190, 198, 256 and 258.
7. Emergency Access/Utility Easement. Exhibit 3 attached hereto depicts a portion of Parcel 2
of the Eagles Nest Property which shall be utilized as Emergency/Utility Access. Such
Exhibit shall replace all other exhibits, depictions, and easements within the definition of
Emergency/Utility Access as set forth in the Restated Agreement it is pertains to Parcel 2 of
the Eagles Nest Property.
8. Effect of Amendment. Except as otherwise contained herein, the remaining terms and
provisions of the Restated Agreement shall remain in full force and effect and are otherwise
hereby ratified and confirmed. All capitalized terms used in this Amendment shall have the
meetings ascribed to them in the Restated Agreement unless otherwise indicated herein. In
the event of any conflict between the terms and conditions of this Amendment and the terms
and conditions of the Restated Agreement, the terms and conditions of this Amendment
shall control, unless a contrary interpretation is required by a particular situation or
circumstance.
9. Notices. Any notice required or permitted to be given under this Amendment or the Restated
Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered
to the Party at the address set forth below, (ii) deposited in the U.S. Mail, registered or
certified, return receipt requested, to the address set forth below or (iii) given to a recognized
and reputable overnight delivery service, to the address set forth below:
Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady Miller
With a copy to: Pierce Coleman
Aaron D. Anson, Esq.
7730 East Greenway Road, Suite 105
Scottsdale, Arizona 85260
MJFFH7: Steven B. Vargo
9617 North Saguaro Boulevard
Fountain Hills, Arizona 85268
With a copy to: MJM Holdings, LLC
Page 3 of 8
1201 Manoa Road
Wynnewood, Pennsylvania 19096
Attn: Frank Sparrow
or at such other address, and to the attention of such other person or officer, as any Party
may designate in writing by notice duly given pursuant to this subsection. Notices shall be
deemed received (i) when delivered to the Party in person or by facsimile, (ii) three business
days after being placed in the U.S. Mail, properly addressed, with sufficient postage or (iii)
the following business day after being given to a recognized overnight delivery service, with
the person giving the notice paying all required charges and instructing the delivery service
to deliver on the following business day. If a copy of a notice is also given to a Party's
counsel or other recipient, the provisions above governing the date on which a notice is
deemed to have been received by a Party shall mean and refer to the date on which the
Party, and not its counsel or other recipient to which a copy of the notice may be sent, is
deemed to have received the notice.
10. Counterparts. This Amendment may be executed in any number of counterparts, all of
which together shall be deemed to constitute one instrument, and each of which shall be
deemed an original. In addition, the Parties acknowledge and agree that facsimile or scanned
and electronically transmitted signatures shall be deemed valid and binding, and thereafter,
upon request of either Party, each Party agrees to deliver original signed copies of this
Amendment to the other Party.
11 Conflict of Interest. This Amendment is subject to the provision of Ariz. Rev. Stat. §38-
511.
SIGNATURES ON FOLLOWING PAGES
Page 4 of 8
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the day and year
first written above.
Town"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
By
Gin
ATTEST:
allDicMayor
C-
STATE OF ARIZONA
) ss.
County ofMaricopa This instrument was acknowledged before me on Ot,'�,�,r I r/
p , aOot3 by
Ginny Dickey, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal
corporation, on behalf of the Town of Fountain Hills.
9AULA IWOODWARD
Notary Dk rl 9n
Commission I 631196
y Comm. Wirt. Au, II, 1016
My Commission Expires:
i)aapAu i tays akil,
Notary Public
Page 5 of 8
"MJFFI IT
MJFFH7, LLC, an Arizona
limited liability company
By:
n B. Vargo
Its: Manager
STATE OF ARIZONA
County of Maricopa
) ss.
)
This instrument was acknowledged before me on 'Sun t I 2023 by
Steven B. Vargo. the Manager of MJFFH7, LLC, an Arizona limited liability company, on behalf of
such entity.
My Commission Expires:
/o-I'!•�023
Notary Public
SHAWN C. WHITE
Notary Public -Arizona
Mar oopa County
Commission a 572191
Y Comm. Eno. October 14, 2023
Page 6 of 8
EXHIBIT I
LEGAL DESCRIPTION
PARCEL 2 OF EAGLES NEST, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE
OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, RECORDED IN
BOOK 580 OF MAPS, PAGE 25.
EXCEPT ALL OIL, GASES AND OTHER HYDROCARBON SUBSTANCES, COAL, STONE,
METALS, MINERALS, FOSSILS AND FERTILIZERS OF EVERY NAME AND
DESCRIPTION, TOGETHER WITH ALL URANIUM, THORIUM, OR ANY OTHER
MATERIALS, WHETHER OR NOT OF COMMERCIAL VALUE, IN, ON, OR UNDER THE
PROPERTY, AS RESERVED ON DEED RECORDED DECEMBER 30, 1993 AS 93-921340 OF
OFFICIAL RECORDS;
EXCEPT ALL UNDERGROUND WATER IN, UNDER OR FLOWING THROUGH SAID
PROPERTY AND WATER RIGHTS APPURTENANT THERETO, AS RESERVED ON DEED
RECORDED DECEMBER 30, 1993 AS 93-921340 OF OFFICIAL RECORDS.
Page 7 of 8
EXHIBIT 2
LEGAL DESCRIPTION
PLAT 515 A:
LOT 27, OF FOUNTAIN HILLS ARIZONA FINAL PLAT NO. 515 AMENDED, ACCORDING
TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF
MARICOPA COUNTY, ARIZONA, RECORDED AS BOOK 409 OF MAPS, PAGE 26;
EXCEPT ALL OIL, GASES AND OTHER HYDROCARBON SUBSTANCES, COAL, STONE,
METALS, MINERALS, FOSSILS AND FERTILIZERS OF EVERY NAME AND
DESCRIPTION, TOGETHER WITH ALL URANIUM, THORIUM OR ANY OTHER
MATERIAL WHICH IS OR MAY BE DETERMINED TO BE PECULIARLY ESSENTIAL TO
THE PRODUCTION OF FISSIONABLE MATERIALS, WHETHER OF NOT OF
COMMERCIAL VALUE; AND ALSO EXCEPT ALL UNDERGROUND WATER, IN, UNDER
OF FLOWING THROUGH SAID LAND AND WATER RIGHTS APPURTENANT THERETO.
Page 8 of 8