HomeMy WebLinkAboutRes 2008-44RESOLUTION NO. 2008-44
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN
HILLS AND FOUNTAIN HILLS TOWN SQUARE, L.L.C.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. That the First Amendment to Development Agreement between the Town
of Fountain Hills and Fountain Hills Town Square, L.L.C., is hereby approved in the form
attached hereto as Exhibit A.
SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town
Attorney are hereby authorized and directed to take all steps and to execute all documents
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,
December I8, 2008.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO
ay . Schlum, Mayor
Richard L. Davis, Tow Manager Andrew J. McGu e, T
926301.1
EXEIIBIT A
TO
RESOLUTION NO. 2008-44
(First Amendment to Development Agreement)
See following pages.
926301.1
When recorded, please return to:
Town of Fountain Hills 1
16705 E. Avenue of the Fountains I
Fountain Hills, AZ 85268 I
I
Attn: Planning & Zoning Department I
I
CAPTION HEADING:
1 111111111111111111 11 gill
OFFICIAL RECORDS OF
MARICOPA COUNTY RECORDER
HELEN PURCELL
2009 - 0027263 01/13/09 01:20 PM
4OF8
nory
RESOLUTION NO. 2008-44
The Town of Fountain Hills, Arizona Approving
the First Amendment to Development Agreement
Between the Town of Fountain Hills and Fountain
Hills Town Square, L.L.C.
This is part of the official document.
Copies Routed To:
❑
Administration
❑
Public Works
❑
Planning and Zoning
❑
CAD
❑
File
13
Other
ASSOCIATED MYLAR MCR #
BOOK OF MAPS ON PAGE
When Recorded Return To:
Town Clerk
Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
FIRST AMENDMENT
TO
DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this "First
Amendment") is entered into December 18, 2008, by and between the TOWN OF FOUNTAIN
HILLS, an Arizona municipal corporation (the "Town ") and FOUNTAIN HILLS TOWN
SQUARE, LLC, an Arizona limited liability company (the "Developer").
RECITALS
A. Developer has a real estate purchase contract for the acquisition of approximately
12.66 acres of that certain real property located at the southwest and southeast corners of Avenue
of the Fountains and Verde River Drive, Fountain Hills, Arizona (the "Property").
B. Development of the Property is governed by that certain Development Agreement
dated October 2, 2008, between the Town and the Developer recorded at Document Number
2006 - 0609018 in the Official Records of the Maricopa County Recorder's Office (the "Initial
Agreement "). Unless otherwise defined herein, all capitalized terms used in this First
Amendment shall have the meanings set forth in the Initial Agreement.
C. The Initial Agreement required that the Developer develop the Project on the
Property in accordance with the Land Use Plan attached thereto as Exhibit B. The Developer has
requested, and the Town has agreed to grant, an amendment to the Initial Agreement to delete
Exhibit B and replace it with a new exhibit Exhibit B -1, which will thereafter be the Land Use
Plan governing development of the Project on the Property.
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 is hereby acknowledged, the Town and the
Developer hereby agree as follows:
1. Exhibit Replaced. That the Initial Agreement is hereby amended by deleting
Exhibit B thereto in its entirety and replacing it with Exhibit B -1, in the form attached hereto and
incorporated herein by reference.
925516.1
2. 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 farther 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.
3. 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.
4. Successors and Assigns. This First Amendment shall be binding upon and inure
to the benefit of the successors and assigns of the respective parties.
5. 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.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date
first set forth above.
"Developer" "Town'
FOUNTAIN HILLS TOWN SQUARE, LLC
an Arizona limited liability company
By
925516.1
TOWN OF FOUNTAIN HILLS, an Arizona
municipal corporation
By:
J T chlum, Mayor
ATTEST:
,�
(ACKNOWLEDGMENTS)
N10"X91W.10110111.r:1
) s5.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me 2008,
by George Kasnoff, Manager of FOUNTAIN HILLS TOWN SQUARE, LLC, an Arizona
Ii mited ' alf of such company.
OFFICI LS L
OEVELYN J. BENDER
naay FUtlwewenawm
MAnlenFn eouNry Notary Publi r avO for the State of Arizona
'�:- MY Gomm. anpS�9 AU9.9], 1011
My commission expires:
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me '4 cr-- 6-e_`�: rt2008,
by Jay T. Schlum, Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal
corporation, on behalf of the Town of Fountain Hills.
My commission expires:
L- -W -V -+
- OFFICIPLM
SNAUNNA BW WILWMS
NoiWRIC c.9'Bleolab016
MgaICOPA COUNT'
.. li✓ uv mmm m0m%JUw H. POW
925516.1
Notary Public in and for the SfAte of Arizona
(ACKNOWLEDGMENTS)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me N05C&l7QER /7 2008,
by George Kasnolf, Manager of FOUNTAIN HILLS TOWN SQUARE, LLC, an Arizona
Ii iabili com an , on behalf of such company.
OFFICIAL SEAL ®
KATHLEEN BUTLER A�j/K_�aC_.7lit.(.(�A
No P�muc. swlo ou�lzo_
MAPICOPA COUNTY Notary Public in and for the State of Arizona
My commission expires: 41 ylao 0 %
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me D1 2008,
by Jay T. Schlum, Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal
corporation, on behalf of the Town of Fountain Hills.
My commission expires:
OFFICIAL SEAL
HAUNNA DAYLE WILLIAMS
Nglry Puak.91W W al
MAaICOPA COUNfY
My wmm. eepine Jum 14,' 0
935516.1
Ill
Notary Public in and for the to of Arizona
EXHIBIT B- I
TO
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE LLC
(Fountain Hills Town Square Downtown Project)
[Land Use Plan]
See following page.
925516.1
Exhibit "B -1"
LAND USE PLAN - 11.12.08
Development Agreement Between the Town of Fountain Hills and Fountain Hill Town Square, LLC
Total
Restaurant
Pro)o"
Retail
BUILDING & PLANNED USE
8 . Ft
Entertainment
Rosidontlal
Ofece
0
0
29,416
26,530
��
,,�� A8f3' - c
14,708
13,980
4.378
B - Ground Floor Retail, Two Levels of Office Above
C - Ground Floor Retail, Two Levels of Office or Condos Above
M - Ground Floor Retail
N • Ground Floor Retail
5,200
Q • 12 Plox of Theaters Spates
60,983
Phase 1 Parking 401
Phase 1 Totals 155,205
99,259
64%
0
0%
55,946
36%
OW
F • Ground Floor Retail, Two Levels of Condos Above
R - Ground Floor Retail, One Level of Office Above
(a - Ground Floor Retail / Restaurant, Ono Level of Office Above
H - Ground Floor Restaurant, One Level of Nightclub Above
6,645
6,726
6,000
8,500
10,328
6,726
6,00D
U -169 Underground parking spaces for Buildings F,R,G & H S aces
Phase 2 Parkin 187
Phase 2 Totalol 50,925
27,671
55%
10,328
20%
12,726
25%
D - Two Story Restaurant
9,000
E - Ground Floor Retail, Two Levels of Condos Above
K - Ground Floor Retail, Two Levels of Condos Above
L - Ground Floor Retail, Two Lovols of Condos Above
29,126
23,642
18,290
31,632
28,284
23,756
0
U -229 Undergound parking spaces for Buildings D,E,K & L Sates
Phase 3 Parkin 265
Phase 3 Totalsl 163,730
80,058
49%
83,672
S1%-
0
0%
A - Ground Floor Retail (partial), Two Levels of Condos Above
11,400
30,404
J - Ground Floor Retail (partial), Two Levels of Condos Above
4,700
72,018
0
U -109 Undorgaund parking spaces for Buildings A & J Spaces
Phase 4 Parking 191
Phase 4 Totals 118,522 1
16,100
14% 1
102,422
86%
0
0%
All Phases Totals
488,382
223,286
46%
196,422
40%
68,672
14%
Town Hall Buildings
Town Hall 26,823
Shorlfrs Office 4,475
Court Offices 3,008
Community 31,115
Library 20,595
Total 86,016
Units Ll 27 A vg.SF. .547 Donslty- DUTAc. 10.0
Exhibit B -Lane Use PWn Stab (Phasa t - 11-12-W- I'Ma0 (2)xb Page 1
DEC -14 -2008 23:01 FROM: 8472511495 TD:14806373145 PAGE:02
WAIVER OF CLAIM FOR DINUNUTION OF VALUE
UNDER ARIZ. REV. STAT. 1112-1134 —1136
BETWEEN
THE TOWN OF FOUNTAIN KILLS
AND
PARK PLACE PROPERTIES, LLC
THIS WAIVER OF CLAIM S,f OR Dlli►+IINUTION OF VALUE UNDER Am REV.
STAT. §§ 12 -1134 - [ 136 (this " Waivee-') is made December 18, 2008, between Park Place
Properties, LLC, an Arizona limited liability company (the "Developer") and Town of Fountain
Hills, an Arizona municipal corporation (the "Town'), regarding the following real property (the
"Property"):
See legal description set forth in Exhibit A attached hereto and incorporated
as if fully set forth herein.
Developer (i) is currently the owner of 1111 right, title and interest in the Property and (ii)
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:
1. Waiver of Claims Purstlpnt to Arun. REV. STAT. 4 12 -1134 et mg. The Developer
agrees and understands that the Town is entering into this Waiver in conjunction with that certain
document entitled First Amendment to Development Agreement between the Town and the
Developer, dated 'December 18, 2008 (the "First Amendment"), relating to that certain
Development Agreement between the Town and the Developer, dated October 2, 2008 (the
"Initial Agreement"), in good faith and with the understanding that, if it acts consistently with
the terms and conditions therein, 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. Developer
agrees and consents to all the conditions imposed * the First Amendment or in connection with
the Concept Plan contemplated in the Initial Agreement (the "Concept Plan'), including all
stipulations adopted by the Town Council, and by signing this Waiver hereby waives any and all
cl aims, suits, damages, compensation and causes of action the Developer may have now or in the
future under the provisions of A=. P.Ev. STAT. §§ 12 -1134 through and including 12 -1136 (but
specifically excluding any provisions included therein relating to eminent domain) and resulting
solely from the development of the Property consistent with the First Amendment, the Initial
Agreement and the Concept Plan, whether approved or denied (including all stipulations adopted
by the Town Council). Developer acknowledges and agrees that the conditions imposed by the
First Amendment (including all stipulations adopted by the Town Council) or a denial of the
First Amendment would not result in a reduction of the fair market value of the Property as
defined in ARtz. RE-v. STAT. § 12 -1136. The Developer acknowledges that the First Amendment
may be adopted with stipulations imposed by the Town Council, in its sole discretion, prior to
approval of the First Amendment. Developer agrees and understands that its waiver of claims as
set forth in this Waiver shall be deemed to extend to cover any changes to the First Amendment
and all stipulations thereto as approved by the Town Council unless, not later than 48 hours
following such Town Council approvals, Developer notifies the Town, in writing, of its
disagreement with such stipulation(s). In the event that Developer timely notifies the Town of
9257$2.1
DEC -14 -2008 23:91 FROM: 8472511495 TD:14808373145 PAGE:03
such disagreement, Developer shall not be deemed to have waived claims with respect to only
the stipulations imposed or revised by the Town Council prior to approval of the First
Amendment; provided, however, that if Developer does not submit a separate waiver of such
claims, in a form acceptable to the Town, prior to close of business on the fifth day following
approval of the First Amendment, then the Town tray, after proper notice and hearing, rescind
the resolution adopting the First Amendment, and if rescinded by the Town Council acting in its
sole discretion, this Waiver shall act as a bar to a claim for diminished value based upon the
rescinded First Amendment. The foregoing waiver of claims shall not be effective and shall be
of no further force and effect with respect to the First Amendment in the event the Town Council
disapproves the First Amendment.
2. Enft Agagment• Modification, This Waiver, any exhibits attached hereto, and
any addendum, constitute the entire understanding and agreement of the Developer and the Town
and shall supersede all prior agreements or understandings between the Developer and Town
regarding waiver of claims pursuant to Awe. RF.v. STAT. § 12 -1134 et seq. relating to the First
Amendment. This Waiver may not be modified or amended except by written agreement by the
Developer and Town. All capitalized terns not otherwise defined herein shall have the
meanings ascribed to them in the First Amendment.
3. Applicable Law: Cancellatiog. This Waiver is entered into in Arizona and will be
construed and interpreted under the laws of the State of Arizona. This Waiver is subject to the
cancellation provisions of ARIZ. REv. STAT. § 38 -511.
a. Recording; Waiver R With Lmd. Within ten days after the execution of this
Waiver, the Town Clerk shall file the Waiver in the Official Records of the County Recorder's
Office, Maricopa County, Arizona. This Waiver runs with the land and is binding upon all
present and future owners of the above - referenced property.
S. Developer Authority. The Developer warrants and represents that it is currently
the owner of all right, title and interest to the Property or is empowered by the owner to
encumber the Property. The persona who sign on behalf of Developer personally warrant and
guarantee to the Town they have the legal power to bind the Developer to this Waiver.
[SIGNATURES ON FOLLOMNO PAGE]
92SM I
2
DEC -14 -2008 23:01 FROM:
8472511495 TO:1480&373145 PAGE:04
IN WITNESS WHEREOF, the Town and the Developer have executed this Waiver as of
the date first set forth above.
"Developer"
PARK PLACE PROPERTIES, LLC
an Arizona limited liability company
n �^
By:— �4r
Sam A. 13ambacima
924]521
. Pown"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
By:
J T cbium, Mayor
ATTEST:
DEC -14 -2808 23:91 FROM: 8472511495 TO:14808373145 PAGE :05
(ACKNOWLEDGMENTS)
STATE OF ARIZONA )
as.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on 2 4 d
by Sam A Gambacorta, Manager of PARK PLACE PROPERTIFS, LLC, an Arizona limited
liability company, on behalf of such limited Liability company.
Notar�Pub ' e State �Ar�na �'' 7l����'�
My Commission Expires:
j 5 � -// -�/ / ?I
STA'L'E OF ARIZONA )
)Ss.
COUNTY OF MARICOPA )
OHitNt YK
YAW t1 M oma
I 0WM"mN i atm
This instrument was acknowledged before me on 2008,
by Jay T. Schlum, the Mayor of the TOWN OF FOUNTAIN IMLS, an Arizona municipal
corporation, on behalf of the Town of Fountain Hills.
Notary Public in tho State of Arizona
My Commission Expires:
�-,r l(4 - Cyc1
11 tOFFICIAL SEAL AUNNA DAYLE WILLIAM <NasuY vutuK sate of Artiorm MARICOPA COUNTY
py a.�ua oawr^s4,m° 14.2009
425753.1
4
DEC -14 -2068 23:04 FROM: 8472511495 TO :14808373145 PAGE -01
EX{81T A
TO
WAIVER OF CLAIMS FOR DIMINUTION OF VALUE
[Leo Description of the Property)
See following pages.
M7sa. i
DEC -14 -2008 23:05 FROM: 8472511495 TO:14808373145 PPGE:02
Property Legal Description
Parcel No. l:
Lots 1, 2, 3 and 5, A FILIAL REPLAT OF BLOCK 7, PLAT NO. 209, FOUNTAIN
HILLS, ARIZONA, according to Book 615 of Maps, page 49, records of Maricopa
County, Arizona:
Except III minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
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 other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
Parcel No. Z:
Lots 1, A FINAL REPLAT OF BLOCK 2, PLAT NO. 208, FOUNTAIN HILLS,
ARIZONA, according to Hook 615 of Maps, page 48, records of Maricepa County,
Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
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 other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.