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HomeMy WebLinkAboutRes 1999-04RESOLUTION 1999 -04 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AUTHORIZING THE EXECUTION OF A PRE - ANNEXATION DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF FOUNTAIN HILLS AND MCO PROPERTIES, INC. REGARDING THE DEVELOPMENT OF APPROXIMATELY THREE HUNDRED THIRTY (330) ACRES OF LAND LOCATED AT THE NORTHWEST CORNER OF SHEA BOULEVARD AND PALISADES BOULEVARD. WHEREAS, the Mayor and Council of the Town of Fountain Hills has authorized Staff to take steps necessary to annex to the corporate limits of the Town of Fountain Hills certain real property consisting of approximately three hundred thirty (330) acres at the northwest corner of Shea Boulevard and Palisades Boulevard; and WHEREAS, the Town did on September 10, 1998 record in the office of the Maricopa County Recorder the documents necessary for the annexation of said real property; and WHEREAS, the Town Council did hold a public hearing on October 1, 1998 concerning the annexation; and WHEREAS, the parties have agreed on the terms and considerations of a pre- annexation development agreement as provided for by A.R.S. § 9- 500.05; NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AS FOLLOWS: Section 1. That attached to this resolution and incorporation by reference as if fully set forth herein is a pre- annexation development agreement setting forth the terms and conditions for the development of certain real property that may be added to the corporate limits of the Town of Fountain Hills by virtue of an annexation ordinance at some point in the future. Section 2. That the appropriate officials of the Town are authorized to execute this agreement and see that this resolution along with the attached agreement is recorded in the office of the Maricopa County Recorder within ten (10) days of its passage as required by law. ASS /FAIL Resolution 1999 -04 MOTION 11" r Page 1 of 2 SECOND IzI u- L o COUNT 7— 0 PASSED AND ADOPTED by the Mayor and Common Council of the Town of Fountain Hills, Arizona this 21 st day of January, 1999. FOR TIT TOWN OF FOUNTAIN HILLS: Sharon Morgan, Mayor J 7 WED Y: ' 4ul Nord fn, Town Manager ATTESTED TO: Cassie B. Hansen, Town Clerk APPROVED AS TO FORM: William E. Farrell, Town Attorney Resolution 1999 -04 Page 2of2 When recorded return to: Town of Fountain Hills 16836 E. Palisades Blvd. Building C Box 17958 Fountain Hills, AZ 85269 Attn: Town Clerk PRE - ANNEXATION DEVELOPMENT AGREEMENT TOWN OF FOUNTAIN HILLS AND MCO PROPERTIES RE NORTHWEST CORNER OF SHEA BOULEVARD AND PALISADES BOULEVARD THIS PRE - ANNEXATION DEVELOPMENT AGREEMENT (the "Agreement ") is made by and between the Town of Fountain Hills, a municipal corporation of the State of Arizona (hereinafter referred to as "Town "), and MCO Properties L.P. dba MCO Properties Limited Partnership, a Delaware limited partnership doing business in the State of Arizona (hereinafter referred to as "MCO "), with reference to the following. A. Pursuant to the provisions of A.R.S. §9- 500.05, the parties may enter into a development agreement relating to property located outside the incorporated area of the Town; any such development agreement does not become operative unless annexation proceedings to annex the property to the Town are completed within the period of time specified in such development agreement, or any extension of time agreed to by the parties. B. The Town desires to consider the annexation of certain real property depicted on Exhibit "A" attached hereto and incorporated herein by reference, and described legally in Exhibit "B" attached hereto and incorporated herein by reference (hereinafter referred to as the "Annexation Property "). C. MCO owns a substantial portion of the Annexation Property that would be subject to annexation by the Town: a 280 acre, 100 lot, single family subdivision known as "The Summit Estates," a private gated community, as depicted as Parcel 1 on Exhibit "A" (hereinafter referred to as "Parcel 1 ") which has an R1-43 zoning designation within Maricopa County ( "R1 -43 Zoning ") and received final plat approval from the Maricopa County Board of Supervisors (the "County ") prior to the execution of this agreement, and the Final Plat of which was recorded August 5, 1998 at No. 98- 0681633 in the Records of Maricopa County and a Corrective Plat of which was recorded September 25, 1998 at No. 98- 0854001 in the Records of Maricopa County (as rerecorded, the "Parcel 1 Plat "); and a 56 acre, unsubdivided panel depicted as Parcel 2 on Exhibit "A" (hereinafter referred to as "Parcel 2 "), which will be designated by the Town of Fountain Hills as having a zoning classification of M -1 P.U.D. ( "M -1 Zoning ") upon annexation, as such zoning is more particularly set forth in the Zoning Ordinance of the Town of Fountain Hills. Parcel 1 and Parcel 2 are collectively referred to hereinafter as the "Property." D. MCO and the Town desire that Parcel 1 be developed as permitted by Maricopa County R1 -43 Zoning and provided for in the final plat approved by the County, and that Parcel 2 be developed as permitted by M -1 P.U.D. Zoning. The parties hereto acknowledge that such development of the CAW 1NW W SITEMPIPREANNEX.DOC 1114199 12:23 PM Page 1 of 14 Property pursuant to this Agreement is consistent with the General Plan of the Town of Fountain Hills and benefits the Town, MCO and the general public. E. MCO desires, under the provisions of A.R.S. §9- 500.05(G) to set forth the duration of the Agreement the permitted uses and the density and intensity of land uses permitted on the Property: conditions, terms, restrictions and requirements for annexation of the Property by the Town and the phasing or timing of annexation of the Property by the Town; and such other and further matters as are permitted by law. F. MCO and the Town acknowledge that development of the Property is a project of such magnitude that MCO reasonably requires assurances from the Town of MCO's right to complete the development of the Property before it will expend substantial efforts and additional costs in the development of the Property, and the Town requires assurances from MCO that when it develops the Property, it will do so in accordance with the terms and conditions of this Agreement. Furthermore, the Town, in order to encourage the development of the property, desires to cooperate with MCO to expedite the approval and granting of building permits, grading permits, site plans, preliminary and final subdivision plats and other development approvals for the Property in accordance with this Agreement, but any such expediting shall be accomplished only in accordance with all municipal and statutory notice requirements. G. The Town and MCO acknowledge that the development of the Property pursuant to this Agreement will result in significant planning and economic benefits to the Town and its residents by (i) enlarging the tax base and increasing property tax and sales tax collections and other revenues to the Town based on improvements to be constructed on the Property, and (ii) creating employment through construction activity on the Property and through the facilities that may be located on the Property. THEREFORE, in consideration of the mutual promises and agreements set forth herein, the parties hereto agree as follows: 1. Annexation, Zoning and Development Rights Generally. A. The parties agree, understand and acknowledge that if for any reason MCO withdraws its signature in support of annexation, given pursuant to A.R.S. §9- 471(A)(4), prior to the adoption by the Town of an ordinance to annex the Annexation Property and the expiration of 30 days thereafter without a challenge to the validity of such ordinance, pursuant to A.R.S. §9- 471(C), none of the terms and conditions of this Agreement shall take effect, in which event neither party is obligated in any manner in regard to future actions in connection with the rezoning and/or development of the Property. B. MCO agrees, understands and acknowledges, without limiting any other remedy or relief for a subsequent breach of any of the terms and conditions of the Agreement by the Town, that once the Annexation Property has been annexed to the Town of Fountain Hills, there presently does not exist any statutory remedy or relief for such a breach by the Town, that would result in the Property being de- annexed from the Town of Fountain Hills and returned to the status of property in the unincorporated area of Maricopa County. C. Zoning and Parcel 1 Plat Status. CAW INDOW MTEMPIPREANNEX.DOC 1114199 12:23 PM Page 2 of 14 (1) The Town shall adopt R 1 -43 P.U.D. zoning for Parcel 1 and M- l P.U.D. zoning for Parcel 2 (collectively, the "Zoning "), pursuant to A.R.S. § 9- 471(L) as more particularly set forth in Paragraphs 2 and 3 below. (2) All Zoning, with respect to the Property, and the Parcel 1 Plat. with respect to Parcel 1, are deemed to be "vested" from the effective date of the annexation and shall continue for the period of time provided below. "Vesting," "vested" or "vest" as used in his Agreement shall mean that the Town shall not, without MCO's consent, change the Zoning to a more restrictive zoning district or zoning classification, or reduce the development rights within a zoning classification in a manner which would apply to the Property or amend the Parcel I Plat or reduce the development rights accorded such Parcel I Plat under the County Standards (as defined below). Any such action shall be a breach of this Agreement by the Town. (3) The Zoning and the Parcel 1 Plat, as applicable, shall be and remain vested: (a) as to Parcel 1, or Parcel 2, as applicable, provided substantial expenditures have been incurred on such parcel, which expenditures may solely include planning and engineering costs, and for which a governmental permit for development (including without limitation any permit issued by the Town or Maricopa County, or any agency of each) has been granted ( "Initial Development "); and (b) in any event for all of the Property for not less than ten (10) years from the effective date hereof (the "Initial Vesting Period "). (4) Following the expiration of the Initial Vesting Period, the Zoning and the Parcel 1 Plat, as applicable, shall remain in place as to Parcel 2 or Parcel 1 as applicable, notwithstanding that the relevant Initial Development has not occurred, but the status of the vesting of the Zoning or the Parcel 1 Plat, as to those areas shall be determined by the statutes and judicial decisions then applicable to Developer's right to develop such areas in accordance with the Zoning or the Parcel 1 Plat. Portions of the Property for which Initial Development was timely commenced shall continue to be vested as provided above. D. Town Processing. The Town shall timely process, in accordance with all applicable notice requirements, such permits, plans, specifications, plats, and/or plan amendments of or for all or a portion of the Property which are reasonably consistent with this Agreement, the Parcel 1 Plat, and the Zoning, and/or amendments thereof as described herein, as applicable. E. Density. (1) The parties acknowledge that Developer, and its successors and assigns, have agreed to develop no more than 100 single family residential units within Parcel 1 and no more than 150 dwelling units within Parcel 2. (2) So long as the maximum number of units for the Property is not exceeded, MCO may, as of right: CAW INDOW SUEMMPREANNEX.DOC 1114199 12:23 PM Page 3 of 14 in Para (a) develop Parcel I and Parcel 2 with the number of units permitted graph 1(E)(1)above; and (b) also develop Parcel 1 or Parcel 2 with fewer units than permitted above. No approval of the Town or its departments or officials shall be required in connection with MCO's exercise of its right to vary unit counts as set forth in this subparagraph (2). F. Other Amendments. (1) The following major changes or amendments to subdivision plats, or zoning amendments, shall be reviewed by the Planning and Zoning Commission and approved by the Town Council; provided, however that any such amendments to Parcel 1 shall be reviewed according to the Zoning and Subdivision Ordinances of Maricopa County on the date of execution of this agreement: (a) Substantial changes to the permitted uses of the property; and (b) An increase in the density or intensity of use or number of dwelling units, except for density changes as provided in Paragraph 1(E). All other changes or amendments to subdivision plats, or other amendments, shall be considered minor amendments. (2) The parties shall cooperate to timely process any minor or major zoning amendments and any amendments to subdivision plats requested by Developer or its successors and assigns. MCO and the Town agree that any such amendments shall be incorporated by this reference into this Agreement with the same force and effect as if set forth herein and shall not require corresponding amendment to this Agreement. G. Town Regulation of Development. Except as provided herein, the rules, regulations, fees, and official policies applicable to and governing the development of (i) Parcel 1, shall be the County Standards and (ii) Parcel 2, shall be those rules, regulations, and official policies which are existing and in force for the Town as of the date of the recording of this Agreement. The Town shall not impose or enact any additional conditions, zoning exactions, dedications, rules or regulations applicable to or governing the development of the Property except for the following: (1) future land use rules, regulations and official policies of the Town that are consistent with and not contrary to the Zoning, that are consistent with the vesting of the Zoning as provided in Paragraph 1(C) and the Parcel 1 Plat as provided in paragraph 2(A), and that do not decrease the development potential of the Property; require any additional infrastructure improvements or dedications in connection with the development of the Property, except as specifically provided in this Agreement, or otherwise agreed to by the parties pursuant to amendment of the Parcel I Plat or Zoning; limit or adversely affect the rate, timing or sequencing of the development of the property; or limit or adversely affect the uses, number and density of dwelling units or intensity of development; (2) future land use rules, regulations and official policies of the Town enacted as necessary to comply with state and federal laws and regulations, provided that in the event any C:IWINDOW SITEMPIPREANNEX.DOC 1/13/99 12:23 PM Page 4 of 14 such state or federal laws or regulations prevent or preclude compliance with this Agreement, such affected provisions of this Agreement shall be modified as may be necessary in order to Y ary comply with such state and federal laws and regulations; and (3) future imposition of taxes or filing or review fees, development fees, or modifications thereto, so long as such taxes or fees are imposed or charged by the Town to all persons and entities. To the extent that any new or amended rules, regulations or official policies (i) of the Town or (ii) the County, as applied by the Town hereunder, and not specifically enumerated in subparagraphs (1), (2) and (3) above conflict with this Agreement, then this Agreement, the Parcel I Plat and the Zoning shall control. H. No Moratorium. The parties agree and acknowledge that this Agreement contemplates the phasing of the development of Parcel l and Parcel 2, and no moratorium, ordinance, resolution or other land use rule or regulation or limitation on the rate, timing or sequencing of the development of either Parcel 1 or Parcel 2 or any portion thereof adopted by the Town shall apply to or govern the development of the Property during the term hereof unless such moratorium is in compliance with A.R.S. §9- 463.06, or successor state moratorium statute. The Town and MCO recognize and agree that the terms of this paragraph 1(H) do not bind or benefit other governmental entities or private parties, except the successors and assigns of MCO hereunder. The Town and MCO also recognize and agree that the terms of this paragraph 1(H) shall be of no force or effect if A.R.S. §9- 463.06 is repealed or held unconstitutional by a final order of a court of proper jurisdiction. The Town and MCO further recognize and agree that if any action by the Town causes conflict between the provisions of this paragraph 1(H) and paragraph I (G)(2), that the provisions of paragraph 1(G)(2) shall control and apply to resolve conflicts. I. Municipal Services. MCO acknowledges that the Town, at the effective date of this Agreement, provides no municipal utility services and the Town has no control over the providing of utility services by other entities and makes no representations with respect to the availability of such utility services. Notwithstanding the foregoing, the Town agrees that in the event it provides municipal utility services in the future, and at such time the Property has been annexed to the Town as provided hereunder, the Town shall make such services available to the Property on the same terms of availability as are applicable to other real property served by the Town. J: No Development Obligation. Nothing contained herein shall be deemed to obligate MCO to commence construction on or complete any part or all of the development of the Property; provided, however, any development that is undertaken by MCO shall be performed in accordance with this Agreement. 2. Specific Provisions Regarding Parcel 1 A. MCO has obtained from Maricopa County approval for the Parcel 1 Plat and intends and wishes to develop Parcel 1 to its full build -out under the terms and conditions of the Zoning Ordinance and Subdivision Ordinance of Maricopa County ( "County Standards ") as more particularly set forth on Exhibit "B." Notwithstanding annexation of the Annexation Property by the Town, MCO may develop Parcel 1 with the uses, density, intensities and subdivision design standards set forth in the Parcel 1 Plat, pursuant to the County Standards. In connection therewith the Town shall grant all CAWINDOWSITEMPIPREANnX.DOC 111419912:23 PM Page 5 of 14 approvals necessary to permit MCO Plat to develop Parcel l pursuant to the Parcel 1 Plat, pursuant to the County Standards, subject to the Town's timely review and approval of site plans ands specifications. MCO agrees and understand that upon annexation of the Annexation Property to the Town, all other fees normally applicable to construction within the Town shall apply, and that the [ 1994] Uniform Building Code (UBC), i.e. such building code adopted and enforced by the Town as is applicable to the construction methods of structures, shall apply to Parcel 1. B. Pursuant to Town of Fountain Hills Subdivision Ordinance Article V, Section 503 (D), the Town hereby approves all cut and fill waivers necessary to construct the roadways in Parcel 1 and fully develop the lots in Parcel 1, including any necessary cut and fill waivers necessary to fully develop individual lots in Parcel 1, as platted and approved by Maricopa County pursuant to the Parcel 1 Plat. Pursuant to Town of Fountain Hills Subdivision Ordinance Article III, Section 305 (B)(3), the Town hereby excepts the streets as shown on the Parcel 1 Plat from the provisions of Town of Fountain Hills Subdivision Ordinance Article III, Section 305 (B)(1), provided that the maximum grade thereof shall be no more that 18 percent. C. The Town and MCO agree, understand and acknowledge that after annexation is completed by the adoption of an ordinance by a majority of the members of the Town Council, and the passage of the 30 day period for questioning the validity of the ordinance of annexation, the Town is required by the provisions of A.R.S. §9- 471(L) to adopt the zoning classification which permits densities and uses no greater than those permitted by the County immediately before annexation. The parties further agree, understand and acknowledge that the zoning designation to be adopted by the Town after the annexation shall be the R1 -43 P.U.D. zoning district as enumerated in the Zoning Ordinance of the Town of Fountain Hills, and permitting private streets within Parcel 1, 20 feet minimum front yard setbacks, and 20 feet minimum side street setbacks, and otherwise equivalent in all material respects to the R1 -43 Zoning approved by the County. 3. Special Provisions Regarding Parcel 2 A. MCO has obtained from Maricopa County rezoning of Parcel 2 from R1 -43 designation to the R -3 P.D. multifamily designation. B. The Town agrees that, upon execution of this Agreement, and the signing of a petition by MCO authorizing annexation of the Property, the Town shall support the current request by MCO of Maricopa County for such rezoning of Parcel 2. C. The Town and MCO agree, understand and acknowledge that after annexation is completed by the adoption of an ordinance by a majority of the members of the Town Council, and the passage of the 30 day period for questioning the validity of the ordinance of annexation, the Town is required by the provisions of A.R.S. §9 -47(L) to adopt the zoning classification which permits densities and uses no greater than those permitted by the County immediately before annexation. The parties further agree, understand and acknowledge that the zoning designation to be adopted by the Town of Fountain Hills after the annexation shall be the M -1 P.U.D. zoning district as enumerated in the Zoning Ordinance of the Town of Fountain Hills, and permitting private streets within Parcel 2 and providing for site plan approval by the Town, and otherwise, except as provided in paragraph 3(E) below, equivalent in all material respects to the R -3 P.D. multifamily designation as approved by the County. D. MCO further agrees, understands and acknowledges that, except as otherwise provided in this Agreement, the development of Parcel 2 under the Town M -1 P.U.D. zoning CAW INDOWSXTEMPTREANNEKDOC 1/1409 12:23 PM Page 6 of 14 classification, as that zone exists now, shall be subject to all of the appropriate ordinances. rules and regulations of the Town at the time that development occurs. MCO further agrees that in connection with the approval of such M -1 P.U.D. zoning, it shall restrict Parcel 2 to prohibit its development as single owner commercial rental property. E. MCO agrees, understands and acknowledges that the zoning classification of M- 1 P.U.D., as provided for in this Agreement is a less intense use than the R -3 P.D. zoning designation approved for the Property by the County and that, as such, the zoning classification applied to the Property by the Town could result in fewer units being constructed than if the Property were to have been developed under R -3 P.D. zoning in Maricopa County, provided that in no event shall such Town Zoning provide for any less density for Parcel 2 than is set forth in paragraph 1(E)(1) . 4. Cooperation and Alternative Dispute Resolution. A. Appointment of Representatives. To further the commitment of the parties to cooperate in the implementation of this Agreement, upon the request of either MCO or the Town, the Town and MCO shall each designate and appoint a representative to act respectively on behalf of the Town and its various departments and MCO , except as otherwise provided in this Agreement or by law. The initial representative for the Town (the "Town Representative ") shall be the Town Manager or his designee and the initial representative for MCO shall be its Vice President, as identified by MCO from time to time. The representatives shall be available at all reasonable times to discuss and review the performance of the parties to this Agreement and the development of the Property pursuant to this Agreement. The representatives may recommend amendments to the Parcel 1 Plat, the Zoning or this Agreement which may be agreed upon by the parties. B. Expedited Town Decisions. The Town and MCO agree that MCO must be able to proceed rapidly with the development of the Property and that, accordingly, an expedited Town review process is necessary. Accordingly, if at any time MCO believes that an impasse has been reached with the Town staff on any issue affecting the Property, MCO shall have the right to immediately appeal to the Town Representative for an expedited decision pursuant to this paragraph. If the issue on which an impasse has been reached is an issue where a final decision can be reached by the Town staff, the Town Representative shall give MCO a final decision within fifteen (15) days after MCO's request for an expedited decision. If the issue on which an impasse has been reached is one where a final decision requires action by the Town Council, or if MCO believes an impasse remains on any issue where a final decision has been given to MCO by the Town Representative, the Town Representative shall use its best efforts to schedule a Town Council hearing on the issue within four (4) weeks after MCO's request for an expedited decision; provided, however, that if the issue first requires review by the Town Planning and Zoning Commission, the matter shall be submitted to the Commission within four (4) weeks after MCO's request for an expedited decision. The Town Planning and Zoning Commission shall timely act on such matter within four (4) weeks after MCO's request for such action. Following action by the Town Planning and Zoning Commission, the matter shall be submitted to the Town Council for timely action, within four (4) weeks after MCO's request for such action. Both parties agree to continue to use timely efforts to resolve any impasse pending any such expedited decision. The foregoing expedited review process shall always be subject to notice and hearing procedures required by law. C. Default. Upon a failure or unreasonable delay by either party to perform or otherwise act in accordance with any term or provision of this Agreement, the other party may give written notice of default specifying the nature of the failure or delay and the manner in which it may be C:IWINDOWSWEM"REANNEX.DOC 1/14/99 12:23 PM Page 7 of 14 satisfactorily cured, if possible. In the event such failure or delay is not cured within thirty (30) days after such notice, the party receiving such notice shall be in default hereunder, and the nondefaulting art �P 5 shall have all rights and remedies which may be available at law or in equity against the party in default hereunder. 5. Notices and Filings. A. Manner of Delivery. All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith shall be validly given, filed, made, delivered or served if in writing and delivered personally or sent by telephonic facsimile or registered or certified United States Mail, postage prepaid, if to: The Town, the Town Council, and the Town Clerk: Town Clerk Town of Fountain Hills 16836 East Palisades Blvd. Building C P. O. Box 17958 Fountain Hills, AZ 85269 -7958 Fax No. (602) 837 -3145 with a copy to: Law Offices of William E. Farrell 10135 E. Via Linda, Suite 220 Scottsdale, AZ 85258 Fax No. (602) 661 -7454 The Developer: MCO Properties Limited Partnership 16838 E. Palisades Blvd. P. O. Box 17795 Fountain Hills, AZ 85269 Attn: Executive Vice President Fax No. (602) 837 -1677 with a copy to: MCO Properties L.P. 5847 San Felipe Suite 2600 Houston, TX 77057 Attn: Vice President/Managing Counsel Fax No. (713) 267 -3702 or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner. B. Mailing or Facsimile Effective. Notices, filings, consents, approvals and communications given by mail or facsimile shall be deemed delivered twenty -four (24) hours following deposit in the U.S. mail, postage prepaid and addressed as set forth above, or confirmation of facsimile delivery to the telephone member set forth above. CAW 1NDOW SWEMPTREANNEX.DOC 111419912:23 PM Page 8 of 14 6. General Provisions. A. Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town or MCO of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. B. Headings. The descriptive headings of the paragraphs of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. C. Exhibits. Any exhibit attached hereto shall be deemed to have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. D. Further Acts. Each of the parties hereto shall execute and deliver all such documents and perform all such acts as reasonably necessary, from time to time, to carry out the matters contemplated by this Agreement. Without limiting the generality of the foregoing, the Town shall timely cooperate and process promptly any requests and applications for plat or permit approvals or revisions, and other necessary approvals relating to the development of the Property by MCO and its successors and assigns, or overwise required hereunder. E. Successors and Assigns. All of the provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto, except as provided in Paragraph ✓ 6(H) below, with respect to any Public Lot (as defined below). Notwithstanding the fore oing, MCO's foregoing, rights and obligations hereunder may only be assigned by a written instrument, recorded in the Official Records of Maricopa County, expressly assigning such rights and obligations. In the event of MCO's complete assignment of all its rights and obligations hereunder, MCO's liability hereunder for acts occurring after the date of the assignment shall terminate effective upon the assumption by MCO's assignee. Except in connection with sale of a Public Lot (as hereinafter defined), MCO shall notify Town of assignment of any or all of its rights and obligations hereunder; provided, however, that all assignments, including those in connection with paragraph 6(G), shall be effective without the consent of the Town. F. Term. The term of this Agreement shall commence on the Effective Date and except as provided below shall automatically terminate on the tenth (10th) anniversary of such date; provided, however, that during the one (1) year period prior to the automatic termination of this Agreement, the parties shall meet and confer as often as either may reasonably request to determine if, and upon what terms, this Agreement shall be extended. If the parties are able to agree upon an extension, an extension agreement between the parties shall be executed and recorded. If the parties are unable to agree upon such an extension, either party may record a notice of termination of this Agreement to be effective on the tenth (10th) anniversary of the date of execution by both parties. Notwithstanding such termination, the provisions of Paragraph 1(C) shall survive the termination. G. Covenants Running with the Land. This Agreement is made as part of a common plan for the development of the Property and constitutes a "Development Agreement" as defined in A.R.S. §9- 500.05, and all rights and obligations hereunder shall be considered to run with the land and benefit and burden all owners of all or any portion of the Property, including all owners who acquire title CAW INDO W SUEMPTREANNEX.DOC 1/14/9912:23 PM Page 9 of 14 to any portion of the Property subsequent to the execution and recording of this Agreement, except as otherwise provided in Paragraph b(H). H. Termination Upon Sale to Public. The Town and MCO hereby acknowledge and agree that this Agreement is not intended to and shall not create conditions or exceptions to title or covenants running with the Property as to Public Lots. Therefore, in order to alleviate any concern as to the effect of this Agreement on the status of title to any of the Property, this Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot (a "Public Lot ") which has been finally subdivided and individually sold or leased (for a period of longer than one vear) or sold to the individual end purchaser or user thereof. Upon such sale or long term lease, such Public Lot shall be released from, and no longer be subject to or burdened by, any obligations under this Agreement. Notwithstanding the foregoing, the benefits of this Agreement shall continue to run as to any such Public Lot until a building and other improvements are constructed on such Public Lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall entirely terminate as to such Public Lot. I. No Partnership: Third Parties. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other arrangement between MCO and the Town. No term or provision of this Agreement is intended to or shall be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm organization or corporation shall have any right or cause of action hereunder. J. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof. All prior and contemporaneous agreements, representations and understandings of the parties, oral or written, are hereby superseded and merged herein. K. Amendments. No change or addition shall be made to this Agreement except by a written amendment executed by the parties hereto. Except as otherwise provided herein, any such amendment shall be adopted by Town Ordinance or resolution. L. Names and Plans. Subject to the provisions of the "Public Records and Documents" laws of the state of Arizona, MCO shall be the sole owner of all names, titles, plans, drawings, specifications, ideas, programs, designs and work products of every nature at any time developed, formulated or prepared by or at the instance of MCO in connection with the Property; provided, however, that in connection with any conveyance of portions of the Property to the Town, such rights pertaining to the portions of the Property so conveyed shall be assigned, to the extent that such rights are assignable, to the Town. Notwithstanding the foregoing, MCO shall be entitled to utilize all such materials described herein to the extent required for MCO to construct, operate or improvements relating to the Property. M. Good Standing, Authority. Each of the parties respectively represents and warrants to the other (i) that it is duly formed and validly existing under the laws of Arizona, with respect to MCO , or a municipal corporation within the State of Arizona, with respect to the Town, (ii) that it is respectively an Arizona limited liability company or an Arizona municipal corporation duly qualified to do business in the State of Arizona and is in good standing under the applicable state laws, and (iii) that the individual(y) executing this Agreement on behalf of the respective parties are authorized and empowered to bind the party on whose behalf each such individual is signing. CAW INDOWMTEMPTREANNEX.DOC 1/14/99 12.33 PIN Page 10 of 14 N. Legality. The Town hereby represents that: (1) The Town has complied or shall timely comply with all applicable laws and has taken or shall take all necessary steps, including without limitation, the holding of all required public hearings, to enter into this Agreement, obligate the Town hereunder, annex the Annexation Property and enact the Zoning; and O. Severability. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement, which shall otherwise remain in full force and effect. If an applicable law or court of competent jurisdiction prohibits or excuses the Town from undertaking any contractual commitment to perform an act hereunder, this Agreement shall remain in full force and effect, but the provision requiring such action shall be deemed to permit the Town to take such action at its discretion. If, however, the Town fails to take the action required hereunder, MCO shall be entitled to terminate this Agreement. P. Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona. Q. Notice of A.R.S. §38 -511. The Town hereby notifies MCO of the provisions of A.R.S. §38 -511. Cancellation of political subdivision and state contracts; definition, which provides, inter alia, that The state, its political subdivisions or any department or agency of either may, within three years after its execution, cancel any contract, without penalty or further obligation, made by the state, its political subdivisions, or any of the departments or agencies of either if any person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf of the state, its political subdivisions or any of the departments or agencies of either is, at any time while the contract or any extension of the contract is in effect, an employee or agent of any other party to the contract in any capacity or a consultant to any other party of the contract with respect to the subject matter of the contract. The parties acknowledge that no person significantly involved in initiating negotiating, securing, drafting or creating this Agreement on behalf of the Town either is an employee or agent of MCO , in any capacity, or a consultant to MCO with respect to the subject matter of this Agreement. R. Time of Essence. Time is of the essence in this Agreement. S. Force Majeure. Neither party shall be deemed to be in default hereunder where failure or delay in performance of any of its obligations under this Agreement is caused by weather conditions, natural disasters, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties, material shortages, government regulations, referendums, court actions (such as restraining orders or injunctions) or other causes beyond such party's control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder shall be extended by the period of time that such events prevents such performance provided that the term of this Agreement shall not be extended under any circumstances for a period which would cause this Agreement or provisions hereof to be void as violating the rule against perpetuities. CAW W DO W SITEMPIPREANNEX.DOC 111419912:23 PM Page 11 of 14 T. Counterparts. This Agreement may be signed in counterparts, and the fully, executed counterparts shall together constitute a single original Agreement. U. Effective Date. The effective date of this Agreement shall be the date of recordation of this agreement in the Office of the Maricopa County Recorder. V. Recordation. This Agreement shall be recorded in the Official Records of Maricopa County. Arizona not less than ten (10) days after this Agreement is executed by the Town and MCO . CAW INDO W SWEMPIPREANNEX.DOC 1/14/99 12:23 PM Page 12 of 14 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of recordation hereof in the Office of the Maricopa County Recorder. APPR D AS TO FOIj�M: Andrew cGuire, ssistant Town Attorney STATE OF ARIZONA COUNTY OF MARICOPA THE TOWN OF FOUNTAIN HILLS: Sharon Morgan, Mayor ATTEST: Cassie B. Hansen, Town Clerk The foregoing document was acknowledged before me thOER day 199 by ,the of the Town of untain Hill n Arizona municipal corporation, on ehalf of the corpora on. My commission expires: 9 - /:Z-a_ Notai,y Public Is- LINDA +0, LEDof:g= �►N fly aaHim: � E:IATTOR NEYTREA N NEX. DOC Irz6/" s :oz P%1 Page 13 of 14 MCO PROPERTIES L.P., A DELAWARE LIMITED PARTNERSHIP By: MCO Properties Inc., a Delaware corporation. general partner v its: 1/,/c -e Aoe- -e S STATE OF ARIZONA COUNTY OF MARICOPA The foregoing document was acknowledged before me then day of k-Ala,44 , 199 by �lit/k �.IC �lq/ , who acknowledged himself to be the 11 fe � 9E 1b&W7- Properties Inc., general partner of MCO Properties L.P., a Delaware limited partnership, for and on behalf of the Iimited partnership. P i My commission expires: Notary Public OFFICIAL SEAL EI.ANIE S. PA NOw Pubo - OWN clArl:, u IwARICOPA COUNW MY ==M " NM 4, 2= CIWINDOWMTEMPIPREANNEX I)OC 1114199 12:23 PM Page 14 of 14