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HomeMy WebLinkAboutRes 2005-42 RESOLUTION NO. 2005-42 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AUTHORIZING THE EXECUTION OF A DEVELOPMENT AGREEMENT RELATING TO LOT 34, BLOCK 1, FINAL PLAT 506C AND THE ABUTTING PARCEL OF LAND TO THE WEST ENCOMPASSING APPROXIMATELY 27.5 ACRES OF LAND. WHEREAS, the Mayor and Council of the Town of Fountain Hills desire to enter into a development agreement (the "Agreement") between the Town of Fountain Hills (the "Town") and High Nob, L.L.C., ("High Nob") pursuant to ARiz. REV. STAT. § 9-500.05; and WHEREAS, the proposed Agreement pertains to property located west of the terminus of Cerro Alto Drive (the "Property"); and WHEREAS, the Agreement is consistent with the Town's adopted General Plan. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, as follows: SECTION 1. That the Agreement is hereby approved in the form attached hereto as Exhibit A. (o. SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to cause the execution of the Agreement and to take all steps necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, July 7, 2005. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: W. J. Nichol , Mayor Bevelyn J. nd , Town Clerk REVIEW Y: / APP VED AS TO FORM: • Vrri Ti o by G. Pi keri g, Town Man ger Andrew J. McGuire, Town Attorney 9196.001\..\2005-42 High Nob.res.doc 6.29.2005-1 EXHIBIT A TO RESOLUTION NO. 2005-42 L L 9196.001\..\2005-42 High Nob.res.doc 6.29.2005-1 WHEN RECORDED,RETURN TO: ATTENTION:TOWN CLERK TOWN OF FOUNTAIN HILLS 16838 East Palisades Boulevard Fountain Hills,Arizona 85268 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT(this"Agreement")is entered into July ,2005, by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the "Town"), HIGH NOB, L.L.C., an Arizona limited liability company("Developer"). RECITALS A. The Developer is the owner of certain real Property located northwest of the intersection of Golden Eagle Blvd. and Cerro Alto Drive within the Town of Fountain Hills,Arizona consisting of approximately 27.5 acres, as more particularly described in Exhibit A, attached hereto and incorporated herein by reference (the"Property" or the"Project"). B. The Developer and the Town are entering into this Agreement pursuant to the provisions of ARIz. REV. STAT. § 9-500.05 in order to facilitate the development of the Property by providing for, among other things, conditions, terms, restrictions and requirements for the construction and installation of infrastructure improvements, amended subdivision development regulations and any and all other matters set forth within the body of this Agreement and as more particularly identified and described on the Preliminary Plat for the Property approved concurrently herewith,prepared by Montgomery Engineering and Management, L.L.C. (the "Preliminary Plat"). C. The Town acknowledges that the development of the Property pursuant to this Agreement will result in significant benefits to the Town and its residents by providing off-site improvements, preservation of rock outcroppings and arroyo, custom lot development, improved water system to Cerro Alto Drive, a private road maintained by the homeowners, a 30-foot no build easement along the eastern side of the property and hillside preservation. AGREEMENT NOW,THEREFORE, IN CONSIDERATION of the foregoing and the mutual promises and agreements set forth herein, the parties hereby agree as follows: 1. Development Standards. 1.1 The various exhibits attached hereto and this Agreement collectively constitute a"Plan of Development" which includes modifications to the Town of Fountain Hills Subdivision Ordinance (the "Subdivision Ordinance"). It is the intent of the parties that the development be constructed in accordance with the Preliminary Plat as approved and as further amended by the terms 9196.010\High Nob DA.v3.doc 6.24.2005-1 of this Agreement. This Agreement is limited in scope in that its sole purpose is to allow for a limited set of modifications to the Subdivision Ordinance, as set forth herein. 1.2 The parties hereby agree and understand that, subsequent to the execution of this Agreement, and based upon the Town's review and due consideration, including without limitation, the conduct of the requisite public hearings,the Town Council shall consider approval of a final plat for the Property that includes the deviations from the Subdivision Ordinance permitted herein. 1.3 The approval of the Town of the Preliminary Plat and this Agreement constitute affirmative representations by the Town, on which the Developer is entitled to rely, that: a. The Developer shall be entitled to develop the Property in accordance with the Preliminary Plat and the deviations from the Subdivision Ordinance contained thereon and in this Agreement. b. The Town,having exercised its discretion in approving the Preliminary Plat, agrees to cooperate reasonably in processing such permits, specifications, and/or other development approvals of or for the Property as may be requested by Developer in order to implement, and which are consistent with, the Preliminary Plat, provided that Developer complies with all applicable rules and regulations and pays all applicable permit and application fees. 2. Density. Developer shall be permitted to develop no more than 11 single-family lots on the Property. 3. Cerro Alto Drive Improvements. The parties acknowledge that Subdivision Ordinance § 305 limits the maximum length of cul-de-sac streets and the number of lots served by such cul-de- sac streets. The Town and the Developer agree that the Developer shall be allowed to deviate from such provisions to allow for a total cul-de-sac length of 3328 feet(±1670 feet hillside local and±1250 feet local roadway) and 11 additional lots to the existing Cerro Alto Drive Cul de Sac. 4. Hillside Disturbance. The Property contains 31,900 sq. ft. of disturbance allowed on land with slopes between 10% and 20%; 58,773 sq. ft. of disturbance allowed on land with slopes between 20% and 30%; and 60,175 sq. ft. of disturbance allowed on land with slopes in excess of 30%, for a total of 150,848 sq. ft. of disturbance allowed for all land with a slope of greater than 10% (the"Total Disturbance Allowance");the remaining area of the Property in excess of 10% slope must remain undisturbed (the "Nondisturbance Requirement"). The Town and the Developer agree and acknowledge that the provisions governing hillside disturbance for slopes in excess of 10% as set forth in Subdivision Ordinance § 504 would impair the development of the Property in accordance with the Preliminary Plat. Therefore,the Town and the Developers agree that the Total Disturbance Allowance shall be distributed across the Property for areas with slopes in excess of 10%as follows in subsections 4.1 through 4.5 below: 4.1 The portion of the Total Disturbance Allowance to be allocated to each lot 9196.010\High Nob DAv3.doc 6.24.2005-1 2 (each a "Disturbance Allowance") shall be calculated by the Developers. The Nondisturbance L Requirement for the balance of each lot shall be the total area of the lot, less the Disturbance Allowance calculated by the Developers for such lot. The Town shall have the right to verify and approve such calculations. 4.2 Developer shall be solely responsible for calculating such Disturbance Allowance as permits development of each lot, as may be required by Subdivision Ordinance Section 308 (B). The calculated Disturbance Allowance and estimated Non Disturbance Requirement acreages for each such lot shall be set forth on the final plat for the Property. The estimated Nondisturbance Requirement acreage for each such lot shall be credited toward the total Nondisturbance Requirement for the Property. In the event the parties agree that pockets of "significant vegetation"or formations of"significant rock outcroppings,"as defined in Subdivision Ordinance Section 602, Developer shall dedicate to the Town hillside protection easements covering such pockets of"significant vegetation"or formations of"significant rock outcroppings"within such lot. Any such dedicated area shall not affect the Disturbance Allowance for such lot, and shall be credited toward the Nondisturbance Requirement for such lot. 4.3 The Disturbance Allowance within a lot may be located within any reasonable area of the lot, as established by the site plan approved by the Town in connection with building permit issuance. The property owner of each lot shall, prior to the issuance of the building permit for such lot, dedicate to the Town a hillside protection easement covering the Nondisturbance Requirement for such lot for such portions thereof where the Disturbance Allowance is not located. 4.4 In the event the actual Disturbance Allowance within a lot, as established by the site plan approved by the Town in connection with building permit issuance, is less than the calculated Disturbance Allowance for such lot set forth on the applicable final plat, the unused Disturbance Allowance may be reasonably allocated by Developer among any other lots within the Property. In the event the actual Nondisturbance Requirement for a lot, as established by recorded hillside protection easement is more than the estimated Nondisturbance Requirement acreage for such lot set forth on the applicable final plat,the excess Nondisturbance Requirement may be reasonably allocated by Developer among any lots within the Property. Developer shall have the same rights with respect to such reallocated Disturbance Allowance or Nondisturbance Requirement, as with any other Disturbance Allowance or Nondisturbance Requirement. 4.5 The parties acknowledge that any additional disturbance area required to accomplish the following shall not be deducted from the Disturbance Allowance for the Property: a. Rounding the points where cut slopes meet natural grade to blend undisturbed terrain and avoid a"sharp edge" appearance. b. Revegetation of disturbed areas of a lot with reasonably similar intensity and type of plant material as growing within the adjacent undisturbed areas. L 9196.010\High Nob DA.v3.doc 6.24.2005-1 3 c. improvements required Ofat fsiteParadox disturbance for a waterline extension and any drainage 5. Cooperation and Alternative Dispute Resolution. 5.1 Appointment of Representatives. To further the commitment of the parties to cooperate in the implementation of this Agreement,upon the request of either of the Developers or the Town,the Town and the Developers each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Developers. The initial representative for the Town (the "Town Representative") shall be the Zoning Administrator, and the initial representative for the Developers shall be its Project Manager, as identified by the Developers from time-to-time (the "Developers' Representative"). 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 the Plan of Development. 5.2 Default. Failure or unreasonable delay by either of the parties to perform or otherwise act in accordance with any term or provision of this Agreement for a period of 30 days(the "Cure Period") after written notice thereof from the other party, shall constitute a default under this Agreement. Said notice shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured, if possible. In the event such default is not cured within the Cure Period, the non-defaulting party shall have all rights and remedies, which may be available at law or in equity. L 6. Notices and Filings. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if(i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (iii) given to a recognized and reputable overnight delivery service, to the address set forth below or (iv) delivered by facsimile transmission to the number set forth below: If to the Town: Town of Fountain Hills 16838 East Palisades Boulevard Fountain Hills, Arizona 85268 Facsimile: 480-837-3145 Attn: Timothy G. Pickering, Town Manager If to Developers: High Nob, LLC 16852 Lunar Lane Fountain Hills, AZ 85268 Facsimile: 480-816-3 849 Attn: Jack McCoy or at such other address, and to the attention of such other person or officer, as any party may designate in writing by notice duly given pursuant to this Section. Notices shall be deemed received 9196.010\High Nob DAv3.doc 6.24.2005-1 4 (i)when delivered to the party, (ii)three business days after being placed in the U.S. Mail,registered %ir or certified, properly addressed, with sufficient postage, (iii)the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all required charges and instructing the delivery service to deliver on the following business day, or (iv) when received by facsimile transmission during the normal business hours of the recipient. If a copy of a notice is also given to a party's counsel or other recipient, the provisions above governing the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice 7. General. 7.1 Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by the Town or the Developers 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. 7.2 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. 7.3 Exhibits. Any exhibit attached hereto and the documents constituting the Plan of Development, 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. 7.4 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 cooperate in good faith and process promptly any request and applications for final plat or permits or approvals or revisions relating to the development of the Property by the Developers and their successors. 7.5 Time of Essence and Successor. Time is of the essence of this Agreement. All of the provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of the parties hereof.Notwithstanding the foregoing,the Developers' rights and obligations hereunder may only be assigned by a written instrument, approved by the Town Council and recorded in the official Records of Maricopa County, expressly assigning such rights and obligations. In the event the Town Council approves a complete assignment of the Developer's rights and obligations hereunder, Developer's liability hereunder for acts occurring after the date of the assignment shall terminate effective upon the assumption by Developer's assignee. 7.6 Term. The term of this Agreement shall commence on the date first set forth above and shall remain in full force and effect for a period of five years thereafter. L 9196.O10\High Nob DA.v3.doc 6.24.2005-1 5 7.7 Termination Upon Sale to Public. The Town and the Developer hereby acknowledge and agree that this Agreement is not intended to and shall not create conditions or exceptions to titles or covenants running with the Property. Therefore, in order to alleviate any concern as to the effect of this Agreement on the status of title to any of the Property, notwithstanding anything contained herein to the contrary, this Agreement shall terminate without the execution or recordation of any further document or instrument as to any lot which has been finally subdivided and individually(and not in"bulk") leased(for a period of longer than one year) or sold to the end purchaser or user thereof. 7.8 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 the Developer 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. 7.9 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. 7.10 Amendment. No change or addition is to be made to this Agreement except by a written amendment executed by the parties hereto. Within ten days after any amendment to this Agreement, such amendment shall be recorded in the official Records of Maricopa County. 7.11 Good Standing and Authority. Each of the parties represents and warrants to the other(i)that it is duly formed and validly existing under the laws of Arizona, duly qualified to do business in the State of Arizona and in good standing under the applicable state laws and (ii) the individual(s) 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. 7.12 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 excuses the Town from undertaking any contractual commitment to perform an act hereunder, this Agreement shall remain in full force and effect, but the provisions 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, the Developer shall be entitled to terminate this Agreement. 7.13 Governing Law. This Agreement is entered into in Arizona and shall be construed and interpreted under the laws of Arizona. In particular,this Agreement is subject to the provisions of ARIz. REV. STAT. §38-511. L 9196.010\High Nob DA.v3.doc 6.24.2005-1 6 Lie 7.14 Recordation. This Agreement shall be recorded in the Official Records of Maricopa County no later than ten days after this Agreement is executed by the Town and the Developer. 7.15 No Developer Representation. Nothing contained herein or the Plan of Development shall be deemed to obligate the Developer to commence construction on or complete any part or all of the development of the Property; provided, however, any development that is undertaken by the Developer shall be done in accordance with this Agreement and the Plan of Development. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. "Town" "Developer" TOWN OF FOUNTAIN HILLS, HIGH NOB, L.L.C., an an Arizona municipal c rporation Arizona limited liability company By /77P/• W. .Nicho , M yor Name T4c-k- c7 M e_e Title:Q4 fadpv, rivir H-i 9 nvo 6 ATTEST: Bevelyn J. Be er, Clerk L 9196.010\High Nob DA.v3.doc 6.24.2005-1 7 ACKNOWLEDGMENTS STATE OF ARIZONA ) ) ss. County of Maricopa ) SUBSCRIBED AND SWORN to before me this day of 7 2005 by W. J. Nichols,the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation,by and on behalf of the Town. IRotth y Public My Commission Expires: STATE OF ARIZONA ) ; ) ss. County of Maricopa ) fibro 7/1 SUBSCRIBED AND SWORN to before me this // day of dui. / , 2005 by "J7) c-1C 'mac"o V the 4/ 4--If HIGH NOB, L.L.C., an Arizona on behalf of the company. „R *�tL� OFFI IAL AL KATHLEEN BUTLER' / ,,/ r�� .w Notary Public:•State of Artzone �/'�'(-�" '� L/e '+f " MARICOPA COUNTY t `�� My oomm.expires Juno 14,202D Notary Public My Commission Exp s". "Tcrt./ ,-, 4 /C,', .�iCC) 5 . 9196.010\High Nob DA.v3.doc 6.24.2005-1 8 ` •. EXHIBIT A TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FAOUNTAIN HILLS AND HIGH NOB, L.L.C. [Legal Description] 416, 9196.010\High Nob DAv3.doc 6.24.2005-1 9 HIGH NOB ACRES LEGAL DESCRIPTION PARCEL NO. 1 LOT 34, BLOCK 1, FOUNTAIN HILLS ARIZONA, FINAL PLAT NO. 506-C, ACCORDING TO BOOK 159 OF MAPS, PAGE 31, RECORDS OF MAICOPA COUNTY, ARIZONA. A PORTION OF SECTION 5, T-3-N, R-6-E MCR, MARICOPA COUNTY, ARIZONA APN 176-21-150 PARCEL NO. 2 THAT PART OF SECTION 5 TOWNSHIP 3 NORTH, RANGE 6 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, MARICOPA COUNTY, ARIZONA, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHWESTERLY CORNER OF LOT 34, BLOCK 1, FOUNTAIN HILLS, ARIZONA, FINAL PLAT NO. 506-C, ACCORDING TO BOOK 159 OF MAPS, PAGE 31, RECORDS OF MARICOPA COUNTY; THENCE SOUTH AND ALONG THE WEST LINE OF SAID LOT 34 AND ALSO ALONG THE BOUNDARY OF SAID FINAL PLAT A DISTANCE OF 422.55 FEET; THENCE NORTH 65 DEGREES 06 MINUTES AND 46 SECONDS WEST A DISTANCE OF 195.05 FEET; THENCE NORTH 15 DEGREES 09 MINUTES 27 SECONDS EAST A DISTANCE OF 262.00 FEET; THENCE NORTH 51 DEGREES 04 MINUTES 20 SECONDS EAST A DISTANCE OF 139.38 FEET TO THE TRUE POINT OF BEGINNING. APN 176-21-471C