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HomeMy WebLinkAboutRes 2008-24 862765.1 EXHIBIT A TO RESOLUTION NO. 2008-24 (First Amendment to Pre-annexation Development Agreement) See following pages. 789076.12 When Recorded Return To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT (this “First Amendment”) is entered into May 15, 2008, by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the “Town”) and FOUNTAIN HILLS INVESTMENT COMPANY, LLC, a Delaware limited liability company (the “Developer”) as successor in interest to the State of Arizona (the “State”). RECITALS A. Developer owns that certain property (the “Property”) situated within the corporate limits of the Town and consisting of approximately 1,276 acres, more or less, of land, which Property is legally described on Exhibit A attached hereto and depicted on Exhibit A-1 attached hereto. B. Development of the Property is governed by that certain Pre-Annexation Development Agreement dated May 4, 2006 (the “Initial Agreement”) between the Town and the State of Arizona (the “State”) acting by and through the State Land Commissioner and recorded at Document Number 2006-0609018 in the Official Records of the Maricopa County Recorder’s Office. C. By virtue of the Initial Agreement and an accompanying general plan amendment (GPA 2006-01) together with a rezoning (Z-2006-02) of the Property, the current entitlements governing the development of the Property include: Open Space Conservation Zoning District (“OSC”); Open Space Recreational Zoning District (“OSR”); Single Family Zoning Districts (R1-35, R1-18, R1-10, R1-8 and R1-6); Lodging Zoning District (L-2); and Neighborhood Commercial Zoning District (C-1) (collectively, the “Current Zoning”). The locations of the Current Zoning designations within the context of the Property are shown on the Current Zoning map attached hereto as Exhibit B. D. The Developer has proposed to rezone portions of the Property (the “2008 Rezoning”) using the existing land use categories, except that the Open Space Preservation Zoning District (“OSP”) and Open Space Recreational Zoning District (“OSR”) will be used in lieu of the approved OSC Zoning District in certain areas of the Property to accommodate necessary site drainage and utility facilities. The land use designations as proposed by the 2008 Rezoning within the context of the Property are shown on the 2008 Rezoning map attached 789076.12 2 hereto as Exhibit C. A comparison of the 2008 Rezoning to the Current Zoning is shown on the 2008 Rezoning table attached as Exhibit D. E. The changes to the configuration of the open space parcels on the Property contemplated by the 2008 Rezoning requires a general plan amendment (the “2008 General Plan Amendment”) so that the proposed zoning designations of the Property will conform to the Town’s General Plan. F. The Developer intends to develop a diverse residential community on the Property, including a mix of new amenities and uses such as commercial services, parks, trails, varied open spaces and, potentially, a boutique resort hotel (the “Project”). G. The Town agrees that given the benefits of the Project to the Town, the 2008 Rezoning would be appropriate for the Property and would facilitate the development of the Project. H. The Town and the Developer desire to amend the Pre-Annexation Development Agreement as hereinafter set forth. Collectively, this First Amendment and the Initial Agreement are referred to hereinafter as the “Agreement.” AGREEMENT NOW, THEREFORE, in consideration of the following mutual covenants and conditions and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and Developer hereby agree to amend the Initial Agreement as follows: 1. Incorporation of Recitals; Definitions. The foregoing recitals are acknowledged by the parties to be true, accurate and complete and are hereby incorporated into this First Amendment as fully set forth herein. All defined terms shall have the meaning ascribed to them in the Initial Agreement unless otherwise set forth herein. As used herein the term “2008 Rezoning” as used throughout the Agreement shall mean the zoning plan attached hereto as Exhibit C. The term “Approvals” shall mean collectively the 2008 Rezoning, the 2008 General Plan Amendment and this Agreement. 2. General Plan Amendment; Rezoning; Density. The General Plan amendment, rezoning and density provisions in the Initial Agreement are hereby modified as follows: a. General Plan Amendment Process. The Town shall comply with the provisions of ARIZ. REV. STAT. § 9-461.06 regarding the 2008 General Plan Amendment for the benefit of the Property. The Town shall process the 2008 General Plan Amendment for the Council’s consideration on the same date the Council considers the 2008 Rezoning ordinance. The Town shall not be obligated to execute this Agreement unless and until the Council has approved the 2008 General Plan Amendment. Should the Town fail to adopt the 2008 General Plan Amendment prior to its consideration of the 2008 Rezoning ordinance, (1) this Agreement shall not become effective and neither Party shall have any obligations under this Agreement and (2) the Council shall not further consider the 2008 Rezoning ordinance. Nothing in this Section 789076.12 3 is intended to limit the discretion of the Town in reviewing, adopting or declining to adopt the 2008 General Plan Amendment or the 2008 Rezoning ordinance. b. Rezoning Process. If the 2008 General Plan Amendment has been adopted by the Council, the Town agrees to (i) approve or disapprove the 2008 Rezoning at the same Council meeting as adoption of the resolution approving the 2008 General Plan Amendment (the “General Plan Resolution”), either at a regularly-scheduled or special meeting of the Council and (ii) ensure that such 2008 Rezoning ordinance is “available” (as defined in ARIZ. REV. STAT. § 19-142, as amended) on the day following the date of passage. In the event that the Council determines that it is in the best interests of the Town to continue the 2008 Rezoning to a date following the date of its approval of the General Plan Resolution, then the Council shall reconsider the General Plan Resolution and shall continue it to the same date as the continued consideration of the 2008 Rezoning. c. Density. Subject to the requirements of the Town of Fountain Hills Zoning Ordinance (the “Zoning Ordinance”) and the Town of Fountain Hills Subdivision Ordinance (the “Subdivision Ordinance”), the Developer shall be permitted to adjust the number of single-family lots between the parcels or subparcels as shown on Exhibit C (each a “Parcel” or collectively, the “Parcels”), so long as (i) the gross average density of the Property does not exceed 1.14 units per acre and the maximum total number of single-family lots does not exceed 1,450 and (ii) the Property remains in conformity with the Approvals; provided, however that in no event shall the number of dwelling units exceed 162 units on Parcel 8 or 85 units on Parcel 9. d. Limitations Relating to Parcels 8 & 9. Developer intends to develop Parcels 8 & 9 with a courtyard housing product that is not currently well defined or regulated under the Zoning Ordinance. To allow for the Developer and the Town to have sufficient time to evaluate to what extent changes to the Zoning Ordinance may be necessary to accommodate a new use like the courtyard housing product, the Town and the Developer have agreed that the zoning for Parcels 8 & 9 will be considered a “holding” zoning category. The Developer and the Town have agreed that if the Town Council approves, as part of the 2008 Rezoning, zoning for Parcels 8 & 9 that is more dense or intense than R1-18, then in addition to the cap on the number of dwelling units set forth in subsection 2(c) above, the following limitations shall apply to Parcels 8 & 9: (i) Developer shall work with the Town staff to develop recommendations to the Town Council regarding amendments to the Zoning Ordinance to accommodate the courtyard housing product (the “Text Amendment”), which amendments shall be presented to the Town Council for its consideration not later than January 1, 2013. (ii) Developer shall work with Town staff to develop recommendations to the Town Council regarding amendments to the then-current zoning for Parcels 8 & 9 to allow the courtyard housing product to be constructed thereon (the “Courtyard Rezoning”), which Courtyard Rezoning shall be presented to the Town Council for its consideration not later than March 1, 2013. 789076.12 4 (iii) Developer agrees and acknowledges that the Text Amendment and/or the Courtyard Rezoning may be approved or denied by the Town Council in its sole, legislative discretion. (iv) Developer shall not submit an application for any approval or development on Parcel 8 or Parcel 9 (except for the Courtyard Rezoning) until after the time that the Town Council approves the Text Amendment and the Courtyard Rezoning, if at all. (v) Developer agrees and acknowledges that if the Text Amendment and the Courtyard Rezoning are not approved by the Town Council by May 1, 2013, that the Town Council may initiate a rezoning for Parcels 8 & 9 to change the then-current zoning thereon to R1-18. Developer consents to such change and agrees that it, its successors and assigns shall be barred from asserting a claim pursuant to ARIZ. REV. STAT. § 12-1134 et seq. as a result of such rezoning. 3. Disturbance Allowance Procedures. a. Subdivision Ordinance Applicability. The parties acknowledge that the Subdivision Ordinance Section 504 sets forth provisions allowing hillside disturbance within subdivisions, and except as provided hereinafter, Section 5.04 shall apply to development of the Property. b. Total Disturbance Allowance. The Town hereby approves the development of the Property with an aggregate disturbance allowance of 530.90 acres (the “Aggregate Disturbance Allowance”) to be allocated as set forth on Exhibit E, attached hereto and incorporated herein by reference, and according to the method described in subsections 3(c) and 3(d) below. Subject to the remaining provisions of this Section 3 related to Per Lot Disturbance Allowance and Parcel Disturbance Allowance, so long as Developer develops the Property without exceeding the Aggregate Disturbance Allowance, the Town agrees to cooperate reasonably in processing the Developer’s requests for approval and issuance of such permits, plans, specifications, plats and/or other development approvals of or for the Property which are reasonably consistent with this Section and in which are in accordance with the Disturbance Allowance Procedures. c. Parcel Disturbance. The Town hereby approves the development of the Parcels with their respective shares of disturbance as set forth on Exhibit E (the “Parcel Disturbance Allowance”), subject to the procedures set forth in subsection 3(e) below. So long as Developer develops the Parcels in accordance with this Section, the Town agrees to cooperate reasonably in processing Developer’s requests for approvals and such permits, plans, specifications and/or other development approvals of or for the Property which are reasonably consistent with this Section and which are in accordance with the Disturbance Allowance Procedures. The Parcel Disturbance Allowance within a Parcel may be located within any reasonable area of the Parcel, as established by a site plan approved by the Town in accordance with a preliminary plat. Developer shall concurrently dedicate to the Town a hillside protection easement for such portions of the Parcel where the disturbance allowance is not located and which is not exempt from the provisions of Subdivision Ordinance Section 504 as provided 789076.12 5 herein. Any portion of the Parcel Disturbance Allowance for a particular Parcel which, at the time of final plat, is determined to be unnecessary for use within that Parcel (“Unused Disturbance”), may be “banked” by the Developer for use as set forth in subsection 3(e)(v) below. d. Per Lot Disturbance. In addition to the provisions of Subsection 3(c) above, the disturbance of any lot within Parcels 6A, 6B and 16 shall not exceed 28,000 square feet and any lot within Parcel 7 shall not exceed 15,000 square feet (the “Per Lot Disturbance Allowance”). So long as Developer develops Parcels 6A, 6B, 7 and 16 in accordance with this Section, the Town agrees to cooperate reasonably in processing the Developer’s requests for approvals and such permits, plans, specifications and/or other development approvals of or for the Property which are reasonably consistent with this Section and which are in accordance with the Disturbance Allowance Procedures. e. Disturbance Allowance Procedures. The parties hereby adopt the following procedures to implement the disturbance allowance permitted for the Property (the “Disturbance Allowance Procedures”): (i) Subject to the provisions of this Agreement, the aggregate Per Lot Disturbance Allowance and the Parcel Disturbance Allowance shall be reasonably allocated among the lots and the Parcels, respectively, in order to allow development of the Property with the intensity and densities permitted by the Approvals. (ii) The calculations for the disturbance method shall be set forth on the applicable preliminary plat applications and, with respect to Parcels 6A, 6B, 7 and 16, such application shall include a site plan approved by the Town in connection with each preliminary plat showing the per lot allocations of disturbance. The Town shall have the right to reasonably approve such calculations. Prior to the approval of each preliminary plat within the Property, the Developer shall provide to the Town calculations showing that the applicable preliminary plat conforms with the permissible allocations of disturbance allowance pursuant to this Agreement. (iii) The final calculated disturbance allowance for the lots and Parcels, as applicable, shall be set forth on the applicable final Parcel plats and shall conform to the approved preliminary plat. For Parcels 6A, 6B, 7 & 16, the calculation shall be included in a table indicating the actual disturbance allowed for each lot within that Parcel. Thereafter, not later than the date that a building permit is issued for each such lot, the Developer shall dedicate to the Town a hillside protection easement for such portions of the lot where the disturbance allowance is not located and which are not exempt from the provisions of Subdivision Ordinance Section 504. (iv) The Aggregate Disturbance Allowance shall be allocated through the Per Lot Disturbance Allowance and the Parcel Disturbance Allowance as shown on the final Parcel plats. 789076.12 6 (v) “Banked” disturbance shall consist only of Unused Disturbance which has been identified and verified according to final plats for the respective Parcels. Such Unused Disturbance may be allocated to any Parcel, except for Parcels 6A, 6B, 7 and 16, to account for additional disturbance needed as a result of final engineering, subject to the following limitations: (1) the Property-wide total amount of Unused Disturbance that may be “banked” shall not exceed 1% of the Aggregate Disturbance Allowance and (2) the total amount of “banked” Unused Disturbance that may be applied to a Parcel cannot exceed the 1% of the total disturbance allocated to that Parcel as set forth on Exhibit E. Nothing in this subsection 3(e)(v) shall be interpreted to allow for additional disturbance on the Property beyond the Aggregate Disturbance Allowance. f. Disturbance Exemptions. Notwithstanding the foregoing, the following shall not be considered disturbance for the purposes of the Subdivision Ordinance or this Agreement: (i) All subdivision improvements and subdivision infrastructure. As used in this Agreement, “subdivision improvements” shall mean: (1) electrical utilities, cable facilities or telecommunications infrastructure; (2) sanitary sewer systems, including collection, transport, storage, treatment, dispersal, effluent use and discharge; (3) drainage and flood control systems, including collection, transport, diversion, storage, detention, retention, dispersal, use and storage; (4) water systems for domestic use, including production, collection, storage, treatment, transport, delivery, connection and dispersal; (5) streets and roadways; and (6) public parks and recreational facilities. (ii) “Rounding” or feathering of the edges of cut banks adjacent to roadways where such slopes meet the natural grade, subject to the provisions of the Subdivision Ordinance and the approval of the Town Engineer. (iii) Restoration of those areas of the Property previously disturbed by human activity (other than by the Developer) which when restored will become and remain open space. g. Alternate Hillside Disturbance Procedure. Pursuant to Section 504.B.3 of the Subdivision Ordinance, the Town and the Developer acknowledge that it is necessary and appropriate to provide for an alternative method of calculating the hillside preservation requirements and disturbance allowances otherwise set forth in the Subdivision Ordinance for the purpose of preserving larger portions of contiguous open space on the Property by assembling various smaller areas that otherwise would have been required to have been preserved in remnants throughout the Property and by allowing for preservation to be credited for those open spaces left undisturbed in slope categories below 10%. Accordingly, the hillside disturbance allocations as required by the Subdivision Ordinance shall be calculated as follows: (i) The hillside disturbance allowance calculations for the Property shall be made on a Project-wide basis rather than each Parcel being calculated as an isolated subdivision. 789076.12 7 (ii) Developer will be given credit towards the Town’s hillside preservation requirements for undisturbed areas of the Property within slope categories of less than ten percent (10%). h. Disturbance Boundary Fencing. The Town agrees that Section 504(E) of the Subdivision Ordinance shall not apply to development of the street rights-of-way, utility corridors outside street rights-of-way, and other areas disturbed in connection with the installation of subdivision improvements for the Property; provided, however, that the Developer shall delineate, with stakes, rope lines and flags, the boundaries of the areas to be disturbed. 4. Expansion of Use Areas. The Town and Developer acknowledge that areas specified for particular land use categories in the 2008 Zoning and are approximate and agree that prior to the time of platting, minor changes in the size of such Parcels, including, but not limited to, zoning lot line adjustments, may be appropriate for technical and engineering purposes. Accordingly, with the prior consent of the Town, not to be unreasonably withheld, Developer shall have the right to make minor and technical adjustments to the size and location of those use areas designated in the 2008 Zoning for a particular land use category so long as (a) the total amount of acreage devoted to such land use category does not exceed the maximum acreage limitation specified in the 2008 Zoning for such land use category, (b) the adjustments do not divide areas of contiguous open space established by the 2008 Zoning as originally approved and (c) in the reasonable opinion of Town’s Planning and Zoning Director the overall character of the 2008 Zoning remains in substantial conformance with the 2008 Zoning as originally approved. Any expansion or relocation of a land use category not within the scope of this subsection shall require an amendment of the 2008 Zoning, which amendment shall be subject to review by the Town’s Planning and Zoning Commission and approval by the Town Council. Neither the Town’s Planning and Zoning Commission nor the Town Council shall be required or obligated to approve any change referred to them pursuant to this section, although they may elect, in their absolute legislative discretion, to do so. 5. On-Site Roadways. a. Cut and Fill. Pursuant to Section 503(D) of the Subdivision Ordinance, the Town hereby waives the maximum cut and fill height limitations set forth in Section 503(D) of the Subdivision Ordinance, but only to the extent necessary to construct the streets and roads and other subdivision improvements serving the Property as shown on Exhibit F, attached hereto and incorporated herein by reference; all other Subdivision Ordinance requirements relating to such cuts and fills shall remain in full force and effect. Any additional cut and fill waivers as may be necessary for the development of residential structures of the Property shall be subject to the review and approval of the Town Council. b. Residential Streets. Developer will construct or arrange for the construction of, in phases, and in accordance with the 2008 Rezoning, the arterial and major collector streets described in the 2008 Rezoning to be used for motorized vehicular travel, ingress, egress, and parking to, through, within and from the Property, including street lighting, with underground electric services distribution, together with all striping, traffic control devices, street sign posts, street name signs, stop signs, speed limit signs, and all other 789076.12 8 directional/warning/advisory and signage as required by the then-current Town regulations, codes and ordinances and as identified on the appropriate plans therefor submitted to and approved by the Town. c. McDowell Mountain Road. The Town shall reasonably cooperate and assist in abandonment of the current alignment of McDowell Mountain Road following (i) approval of one or more final plats showing and dedicating to the Town a substitute arterial roadway to replace McDowell Mountain Road in a location and configuration acceptable to the Town Public Works Director and (ii) completion of construction of the substitute arterial roadway, acceptance by the Town of such roadway, and opening of such roadway for public access; provided, however that nothing in this subsection shall require the Town to remove the existing McDowell Mountain Road improvements. Developer shall have the right to relocate McDowell Mountain Road where it crosses the Property to the approximate location shown in the 2008 Rezoning map attached hereto as Exhibit C, according to plans therefor submitted to and approved by the Town. Additionally, Developer shall have the right to rename McDowell Mountain Road to Fountain Hills Boulevard as to that portion which runs through the Property. 6. Offsite Improvements. a. Fountain Hills Boulevard. Developer shall contribute 25% of the cost to design and construct right-hand and left-hand turn lanes and/or pockets on Fountain Hills Boulevard, from Ironwood Drive to Pinto Drive (the “Fountain Hills Boulevard Improvements”) as determined necessary by the Town pursuant to a traffic study. The location and extent of the Fountain Hills Boulevard Improvements shall be identified by the Town and agreed to by the Developer prior to recording of the first final plat on the Property. Developer’s share of the cost shall be deposited with the Town not later than the date that the Town approves contracts for construction of the respective portions of the Fountain Hills Boulevard Improvements. b. Traffic Control Devices. Developer shall contribute 50% of the cost to design and construct such traffic control devices and/or traffic signals (including all equipment, rights-of-way acquisition for signal pole and equipment and appropriate intersection lighting) deemed necessary by the Town pursuant to a traffic study for the following intersections: (i) Fountain Hills Boulevard/Fountain Hills Middle School; (ii) Fountain Hills Boulevard/Glenbrook Boulevard; (iii) Fountain Hills Boulevard/El Pueblo Boulevard; (iv) Fountain Hills Boulevard/Saguaro Boulevard; and (v) Golden Eagle Boulevard/Palisades Boulevard (collectively, the “Traffic Control Improvements”). The location and extent of the Traffic Control Improvements shall be identified by the Town not later than five years after approval of the last single family subdivision plat for the Property. Developer shall maintain a performance bond, in a form acceptable to the Town Attorney in the amount of $250,000 (approximately 50% of the cost of a traffic signal in 2008 dollars) for the benefit of the Town and ensuring Developer’s performance of its obligations in this subsection 6(b). c. Drainage. Developer shall contribute 50% of the cost (excluding any costs for land acquisition) to design and construct all weather crossings, consisting of box culverts of a size and configuration as determined by the Town Engineer in his reasonable discretion, for the intersections of (i) El Pueblo Blvd. and the Caliente Wash and (ii) Fountain Hills Blvd. and the 789076.12 9 Oxford Wash; provided, however, that if the Developer has not been notified of the need for such drainage improvements prior to five years after the approval date of the latest to occur of the last single family residential final plat or the last non-residential site plan on the Property, Developer’s obligation under this subsection 6(c) shall terminate. 7. Effluent. Developer may arrange for the design, engineering, construction, acquisition, installation of sufficient reuse/disposal facilities and delivery system installation as part of a non-potable water system (the “Effluent System”) for the delivery of treated reclaimed water to the Parks (as hereinafter defined), other areas of the Property, or for off-site delivery in accordance with the rules and regulations of the Fountain Hills Sanitary District (the “Sanitary District”), provided that any such system meets all applicable federal, state and local standards. The Town agrees to allow Developer to construct the Effluent System and related improvements within Town rights-of-way to the extent deemed necessary by the Town’s Public Works Director and the General Manager of the Sanitary District. Such construction shall comply with all generally application requirements of the Town for construction within rights-of-way. 8. Open Space. a. Allowable Uses. The Town and Developer acknowledge that the 2008 Rezoning designates a portion of the Property as the OSR zoning district (as described in the Zoning Ordinance), which permits detention or retention as a primary use but also permits a wide array of passive and active open space uses, such as golf courses. Notwithstanding the allowance of such passive and active open space uses under the Zoning Ordinance, the Developer agrees to restrict, by recorded instrument acceptable to the Town Attorney, the use of any portion of the Property which is designated “OSR Zoning District” and which is designated primarily for detention, retention, trails or public utilities in a manner such that each portion so designated (a) shall be developed with indigenous plant materials and designed to blend to the maximum extent possible with the natural, undisturbed state of the land and (b) may not be used for any other purpose other than the construction, replacement, maintenance and repair of detention and retention basins, trails and public utilities. b. Off-Street Trails/Wildlife Corridors. To the extent reasonably possible, Developer shall design and construct (according to the Town’s trail design standards), as part of the Master Plan for the property, an off-street trail network for pedestrian and bicycle use, providing access to and between the Fountain Hills Middle School, the new Town public park to be constructed adjacent to the Fountain Hills Middle School, McDowell Mountain Park, neighborhoods (and related private parks), the lodging area within the Property and the commercial area within the Property (collectively, the “Trail Network”). The Trail Network components shall be constructed in conjunction with the Subdivision Improvements for each Parcel; provided, however that if construction in this manner results in gaps in the Trail Network, Developer shall make such connections as reasonably necessary or appropriate to ensure that the Trail Network is usable, even if such connections cross Parcels yet to be developed. Developer shall provide for wildlife corridors through the Property to preserve, to the extent reasonably possible, the wildlife corridors existing on the Property as of the date of this Agreement (the “Wildlife Corridors”). Developer shall design and construct suitably sized roadway under-crossings for the Trail Network and the Wildlife Corridors (minimum height, width and 789076.12 10 construction materials to be determined by the Town Engineer in his reasonable discretion), which under-crossings shall be constructed in conjunction with the other Subdivision Improvements for a Parcel. 9. Parks. The Developer shall design, install and dedicate to the Town those parks (the “Parks”) and wash corridors (the “Washes”), including all improvements thereto, in the locations identified on Exhibit G, attached hereto and incorporated herein by reference. The Parks are anticipated to include two separate components, a community park on the west side of the new alignment for Fountain Hills Boulevard/McDowell Mountain Road and a neighborhood park on the east side of that same road. The community park will include two lighted softball fields, a multi-purpose field/turf area and a restroom/concession/office/storage building of approximately 1,500-2,000 square feet. The neighborhood park will include a shaded playground for children ages five and younger, a shaded playground for children six years and older, two lighted tennis courts and one lighted basketball court. Both the community park and the neighborhood park shall include parking, restroom facilities, meandering trails, lockable entry/exit gates and a minimum of two ramadas. All improvements to the Parks shall be in sizes, locations and configurations as reasonably determined by the Town. The Town agrees that it shall utilize the Parks solely as public parks and the Washes solely as public open space. Upon installation by Developer of any Park, the Developer shall promptly (a) notify the Town in writing of the presumptive completion of such Parks and (b) dedicate to the Town, at no cost to the Town, such Parks free and clear of all liens and encumbrances. So long as such Parks are constructed in accordance with the Town’s park design standards and any applicable local, state or federal regulations and in accordance with plans approved by the Town Manager or authorized designee, the Town shall accept dedication of the Parks from the Developer. After acceptance of any Parks, the Town thereafter shall own, maintain, repair and operate such Parks at its own cost. Developer, at no cost to Town, shall dedicate, convey or obtain, as applicable, all rights-of-way, rights of entry, easements and/or other use rights, wherever located on property under Developer’s ownership or control, as useful or necessary for the operation and maintenance of the Park(s) as required by the Town. Developer shall have no obligation whatsoever to place any improvements in the Parks and Washes other than those approved by the Town and included in this Agreement. Developer shall not be required to expend any effort or resources on the maintenance of any Parks. Any Park improvement costs and the fair market value of land comprising the Parks (to be determined as of the date of conveyance thereof to the Town by mutual Agreement or by an independent appraiser mutually acceptable to the parties) shall be credited or offset against those park and/or recreation development/impact fees which may from time to time be charged by the Town whether now existing or imposed in the future. Developer’s obligations with respect to that portion of the community park located on land leased by the Fountain Hills Unified School District (“FHUSD”) from the State of Arizona (the “Leased School Land”) shall be contingent upon FHUSD (a) obtaining any authorization necessary from the State Land Department to utilize a portion of the Leased School Land for the community park purposes as set forth above and (b) FHUSD granting authorization to the Town and the Developer to enter onto the Leased School Land for the purpose of constructing the amenities in that portion of the community park. 10. Municipal Utility Services. Without limiting the following, the parties acknowledge that the Town, as of the date of the execution of this Agreement, provides no 789076.12 11 municipal utility service and that the Town has no control over the provision of such services by other entities and makes no representations with respect to the availability of such services by other entities. However, in the event that the Town does provide one or more municipal services in the future, the Town shall (a) make such services to the Property in the same terms of availability as are applicable to other properties served by the Town, (b) continue to provide such services as reasonably required in connection with the development and use of the Property and (c) not adopt policies and procedures with respect to the provision of such which would unreasonably delay development of the Property. a. Water Service. Developer shall cause the Property to be supplied with potable and other water supplies at the sole cost and expense of Developer. Such obligation shall include providing or causing to be provided all on-site and off-site water lines, wells and treatment facilities. The Town shall have no obligation to provide water to the Property. The Town may condition subdivision approval, issuance of building permits or certificates of occupancy for structures on provision by Developer of a potable water supply sufficient to provide service for the units for which permits or certificates are then being requested, but the Town acknowledges that provision of water supplies will be phased with development of the Property. Developer shall have the right to select any water service provider allowed by law. (i) The parties acknowledge that the Town does not currently provide water service, and has no water development fees. If, during the Term of this Agreement, the Town undertakes to provide water services or otherwise adopts water development or other water related fees designed to compensate Town for the cost of constructing water lines, providing water treatment, or providing sources of water, such fees shall be reimbursable to the extent permitted in Section 1.9 of the Initial Agreement. (ii) The Town shall allow Developer to construct water lines and related improvements within Town rights-of-way to the extent deemed necessary by the Town’s Public Works Director and the General Manager of Chaparral City Water Company. Such construction shall comply with all generally applicable requirements of Town for construction within rights-of-way. b. Sewer Service. Developer shall cause the Property to be provided with sewer service at the sole cost and expense of Developer. Such obligation shall include providing or causing to be provided all on-site and off-site sewer lines and treatment facilities. The Town shall have no obligation to provide sewer service to the Property. The Town may condition subdivision approval, issuance of building permits or certificates of occupancy for structures on provision by Developer of sewer service sufficient to provide service for the units for which permits or certificates are then being requested, but the Town acknowledges that provision of sewer service will be phased with development of the Property. Developer shall have the right to select any sewer service provider allowed by law. (i) The parties acknowledge that the Town does not currently provide sewer services and has no sewer fees. If, during the Term of this Agreement, the Town undertakes to provide sewer services or otherwise adopts sewer development or other sewer related fees designed to compensate Town for the cost of constructing sewer lines 789076.12 12 or providing sewage treatment, such fees shall be reimbursable to the extent permitted in Section 1.9 of the Initial Agreement. (ii) The Town shall allow Developer to construct sewer lines and related improvements within Town rights of way. Such construction shall comply with all generally applicable requirements from Town for construction within rights-of-way to the extent deemed necessary by the Town’s Public Works Director and the General Manager of Chaparral City Water Company. 11. Consistency; Modification. Except as modified by this First Amendment, all of the terms and conditions of the Initial Agreement shall remain in full force and effect. This First Amendment and the Initial Agreement shall not be further modified in any manner other than by a written amendment executed by the Town and the Developer or its successors or assigns. If any clause, sentence or other portion of this First Amendment shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portions thereof shall remain in full force and effect. 12. Non-Default. By executing this First Amendment, Developer affirmatively asserts that the Town is not currently in default, nor has been in default at any time prior to this First Amendment, under any of the terms or conditions of the Initial Agreement. 13. Successors and Assigns. This First Amendment shall be binding upon and inure to the benefit of the successors and assigns of the respective parties. 14. Conflict of Interest. This First Amendment is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Town may cancel this First Amendment without penalty or further obligations by the Town or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating this agreement on behalf of the Town or any of its departments or agencies is, at any time while the agreement or any extension of the agreement is in effect, an employee of any other party to the agreement in any capacity or a consultant to any other party of the agreement with respect to the subject matter of the agreement. 15. Waiver of Claims Pursuant to ARIZ. REV. STAT. § 12-1134 et seq. The Developer agrees and understands that the Town is entering into this First Amendment in good faith and with the understanding that, if it acts consistently with the terms and conditions herein, it will not be subject to a claim for diminished value of the Property from the Developer or other parties having an interest in the Property. The Developer, on behalf of itself and all other parties having an interest in the Property, intends to encumber the Property with the following agreements and waivers. Developer agrees and consents to all the conditions imposed by this First Amendment, the Initial Agreement, the 2008 Rezoning, including all stipulations adopted by the Town Council, and the 2008 General Plan Amendment, including all stipulations adopted by the Town Council, and by signing this Agreement waives any and all claims, suits, damages, compensation and causes of action the Developer may have now or in the future under the provisions of ARIZ. REV. STAT. §§ 12-1134 through and including 12-1136 (but specifically excluding any provisions included therein relating to eminent domain) and resulting from the development of 789076.12 EXHIBIT A TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Legal Description of Property] See following pages. 789076.12 EXHIBIT A-1 TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Map of Property] See following pages. 789076.12 EXHIBIT B TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Current Zoning Map] See following pages. 789076.12 EXHIBIT C TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [2008 Rezoning Map] See following pages. 789076.12 EXHIBIT D TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [2008 Rezoning Table] See following pages. Parcel/Tract Existing Proposed Parcel/Tract Existing Proposed 1 R1-8, C-1 C-1 24 OSC, R1-18, R1-10, L-2 OSR 2a R1-8, R1-6 OSR 25 OSC, R1-8, R1-18, R1-10 OSR 2b R1-8 OSR 26 OSC, R1-6, R1-10 OSR 3 R1-8, OSC, C-1 R1-8 27 R1-10 OSR 4 R1-8, OSC, R1-10 R1-8 28 OSC, R1-10, OSR OSR 5a OSC, R1-10 R1-10 29 OSC, R1-10 OSR 5b OSC, R1-6, R1-18, R1-10, OSR R1-10 30 OSC, L-2, R1-10, R1-6 OSP 6a OSR, OSC, R1-10 R1-35 31 OSC, R1-10 OSP 6b OSR, OSC, R1-10, R1-6 R1-35 32 R1-10 OSR 7 OSC, R1-6, R1-18, OSR, R1-10 R1-18 33 OSC, R1-10 OSR 8 OSC, R1-18, R1-10 R1-6 34 OSC, R1-10 OSR 9 OSC, R1-8, R1-10 R1-6 35 OSC, R1-10 OSP 10 R1-8, R1-6, OSC R1-6 36 OSC, R1-10, R1-6 OSR 11 OSC, L-2 L-2 37 OSC OSR 12 OSC, R1-10 R1-10 38 OSC, R1-10 OSR 13 OSC, R1-10, R1-6 R1-8 39 OSC, R1-10 OSP 14 OSC, R1-10 R1-10 40 OSC, R1-10, R1-6 OSP 15a OSC, R1-10 R1-10 41 OSC, R1-35, R1-10 OSP 15b OSC, R1-10, R1-6 R1-10 42 OSC OSR 16 OSC, R1-35 R1-35 43 OSC, R1-35 OSR 17 OSC, R1-6 R1-6 44 OSC, R1-6, R1-35 OSR 18 OSC, R1-8, R1-6, R1-10 R1-8 45 OSC, R1-6 OSR 19 R1-8 OSP 46 OSC, R1-35, R1-6, R1-10 OSP 20 OSC, R1-8, R1-10, R1-6 OSR 47 OSC, R1-6, R1-10 OSR 21 OSC, C-1 OSR 48 OSC, R1-35, R1-10 OSR 22 OSC, R1-10, R1-8 OSR 49 OSC, R1-6, R1-10 OSR 23 OSC OSR 50 R1-6 OSR ZONING ZONING 789076.12 EXHIBIT E TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Disturbance Allowance by Parcel] See following pages. Parcels Parcel Disturbance (ac.) 334.8 433.2 5a 12.3 5b 23.2 6a 14.6 6b 5.7 722.4 840.7 922.1 10 21.5 12 32.2 13 31.3 14 29.6 15a 11.0 15b 13.2 16 29.6 17 36.1 18 37.0 Total Residential 450.3 110.4 Total Commercial 10.4 11 24.3 Total Lodging 24.3 OSP/OSR 46.0 Total OSP/OSR 46.0 TOTAL HILLSIDE DISTURBANCE 530.9 Park* Parcel Disturbance (ac.) 2a 15.0 2b 22.7 Total Park (1) 37.7 *100% disturbance is assumed for park development beyond roadways & PUEs. 789076.12 EXHIBIT F TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Roadway Cut & Fill] See following pages. Bahia Dr.El Sobrante Ave.El Pueblo BlvdElgin (Ivory) DriveFountain Hills Blvd.Glenbrook BlvdP e l ic a n D r i v e BlueJayPlaceRichwoodAve.BoulderDr. 789076.12 Due to recording limitations, the remainder of this document is on file in the office of the Fountain Hills Town Clerk. 789076.12 EXHIBIT G TO FIRST AMENDMENT TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Parks and Washes] See following pages.