HomeMy WebLinkAboutRes 2006-13 RESOLUTION NO. 2006-13
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING A DEVELOPMENT
AGREEMENT WITH FIREROCK PLAZA L.L.C., RELATING TO THE
DEVELOPMENT OF ± 2.61 ACRES OF REAL PROPERTY, GENERALLY
LOCATED ON THE SOUTH SIDE OF SHEA BOULEVARD, NORTHWEST
OF THE BEELINE HIGHWAY.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, as follows:
SECTION 1. That the Development Agreement between the Town of Fountain Hills and
the Firerock Plaza L.L.C., relating to the development of±2.61 acres of real property, generally
located on the south side of Shea Boulevard, northwest of the Beeline Highway (the
"Agreement") is hereby approved in the form attached hereto as Exhibit A and incorporated
herein by this reference.
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,
March 16, 2006.
FOR THE TOWN F FOUNTAIN HILLS: ATTESTED TO:
16410'
W. J. ichols, M or Bevelyn J. Ben r, To n Clerk
REVIEWED BY: APPROVED AS TO FORM:
Timot G. Pi ering, Town Manager Andrew J. McGuire, Town Attorney
L
636948.1
EXHIBIT A
TO
RESOLUTION NO. 2006-13 *411)
j
j
636948.1
03/09/2006 10:23 6028406003 51:1711 N 40 I H 51 F'HX rAut nu n1C
WHEN RECORDED,RETURN TO:
ATTENTION: TOWN CLERK
TOWN OF FOUNTAIN HILLS
16705 E.Avenue of the Fountains
Fountain Hills,Arizona 85268
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into March 16,
2006 by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation
(the "Town") and FIREROCK PLAZA L.L.C., an Arizona limited liability company (the
"Developer").
RECITALS
A. The Developer is the owner of certain real Property located on the south side of
Shea Boulevard, north of the Beeline Highway, within the Town of Fountain Hills, Arizona
consisting of approximately 2.61 acres, as more particularly described in Exhibit A, attached
hereto and incorporated herein by reference (the "Property").
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
L by providing for among other things, conditions, terms, restrictions and requirements for the
construction and installation of certain infrastructure improvement and any and all other matters
set forth within the body of this Agreement and as more particularly identified and described on
the Site Plan for the Property prepared by DeLorme & Associates, dated February 16, 2006 (the
"Site Plan"), attached hereto as Exhibit B and incorporated herein by reference, including any
changes thereto as set forth in this Agreement.
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,as set forth herein.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of the foregoing recitals, which are
incorporated herein by reference, the mutual promises and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Shea Boulevard Improvements.
1.1 The Town and the Developer agree that the ultimate development of the
Property will require that the Developer complete certain improvements related to the Property
including, but not limited to, paving, grading, landscaping and drainage improvements to the
existing Shea Boulevard public right-of-way.
633906.1
03/09/2006 10: 18 6028406003 5070 N 40TH ST PHX PAGE 02/10
including, but not limited to, paving, grading, landscaping and drainage improvements to the ,iti)
existing Shea Boulevard public)right-of-way.
1.2 As a condition precedent to the approval of the Site Plan, Developer its
successors or assigns shall also be responsible at their sole cost and expense to complete, or
cause to be completed, the following:
a. The traffic signal to be located on the Property, pursuant to the
Grant of Easements for Fountain Hills Plat 412-B, Block 6, Lots 5, 6 & 7, executed by
the Developer and the adjacent property owner and apportioning 60% of the cost of such
traffic signal to the Developer.
b. A meandering sidewalk along the Shea Boulevard frontage from
the proposed Firerock Plaza Driveway to the northern edge of subject Property.
e. Prior to issuance of a grading permit for the Property, the
Developer shall provide the Town with an inventory of the plant varieties and quantities
on the portion of the Property to be disturbed, as set forth below. Following construction
of the improvements on the Property, the bermed, landscaped areas of the Property shall
be revegitated in a manner approved by the Town and consistent with the plant quantity
and variety existing on the Property prior to grading.
d. Installation of an ADA-approved accessible ramp from Firebrick
Drive onto the subject Property, in the location shown on the Site Plan.
2. Hillside Disturbance.
2.1 The Property contains 55,429 SF of disturbance allowed on land with
slopes between 0% and 10%; 9,176 SF of disturbance allowed on land with slopes between 10%
and 20%; and 4,103 SF of disturbance allowed on land with slopes between 20% and 30%, for a
total of 75,871 SF of disturbance allowed (the "Total Disturbance Allowance") as set forth in the
Town of Fountain Hills Subdivision Ordinance § 504. To the extent not included in the Total
Disturbance Allowance, the remaining area of the Property must remain undisturbed (the
"Nondisturbance Requirement"). In order to develop the Property as set forth in the Site Plan,
the Developer would disturb 87,505 SF, 11,634 SF more disturbance than permitted by the Total
Disturbance Allowance. The Town and the Developer agree and acknowledge that the
provisions governing hillside disturbance for slopes in excess of 10% as set forth in the Town of
Fountain Hills Subdivision Ordinance § 504 would impair the development of the Property in
accordance with the Site Plan. Therefore,the Town and the Developer agree that a portion of the
Nondisturbance Requirement may be waived by the Town in exchange for the Developer (a)
complying with the terms and conditions of this Agreement and (b) paying $32,924 to the Town
prior to issuance of any permit for development on the Property.
2.2 The parties acknowledge that any additional disturbance area required to
accomplish the revegetation of disturbed areas of the Property with reasonably similar intensity
J
633906.1
2
•03/09/2006 10: 18 6028406003 5070 N 40TH ST PHX PAGE 03/10
•
Low and type of plant material as growing within the adjacent undisturbed areas, as set forth in
subsection 1.2(c) above, shall not be deducted from the Disturbance Allowance for the Property.
3. Cooperation and Alternative Dispute Resolution.
3.1 Appointment of Representatives. To further the commitment of the
parties to cooperate in the implementation of this Agreement, upon the request of the Developer
or the Town, the Town and the Developer each shall designate and appoint a representative to act
as a liaison between the Town and its various departments and the Developer. The initial
representative for the Town(the "Town Representative") shall be the Zoning Administrator, and
the initial representative for the Developer shall be its Project Manager, as identified by the
Developer from time-to-time (the "Developer's 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 Site Plan.
3.2 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 he available at law or in equity.
4. Notices and Requests. 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(a) delivered to the party at the address set forth below, (b) deposited in the U.S. Mail,
registered or certified, return receipt requested, to the address set forth below, (c) given to a
recognized and reputable overnight delivery service, to the address set forth below or (d)
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: Town Clerk
With a copy i:o: Gust Rosenfeld, P.L.C.
201 E. Washington, Suite 800
Phoenix, Arizona 85004
Facsimile: 602-340-15 3 8
Attn: Andrew J. McGuire, Esq.
If to Developer: Kama] Ramsumair
10901 West Palm Lane
Avondale, Arizona 85323
Facsimile: 523-936-4900
633906.1
3
03/09/2006 10: 18 6028406003 5070 N 40TH ST PHX PAGE 04/.0
j
With a copy to: George Namie
5070 N. 40th Street, Suite 140
Phoenix, Arizona.85018
Facsimile: 602-840-6003
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 (a) when delivered to the party, (b) three business days after being placed in the U.S.
Mail, registered or certified, properly addressed, with sufficient postage, (c) 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 (d) 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
5. General.
5.1 Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof and no waiver by the Town or the Developer 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.
5.2 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
5.3 Exhibits. Any exhibit attached hereto and the documents constituting the
Site Plan 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.
5.4 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.
5.5 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 Developer's 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. Tn 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. 8,410
633906.1
4
83/09/200b 10: lb bb'Ld4ubuud N 4Gin =I rnn uwiri
5.6 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 ten years thereafter.
5.7 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.
5.8 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.
5.9 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof. All prior and contemporaneous
(1160, agreements, representations and understandings of the parties, oral or written, are hereby
superseded and merged herein.
5.10 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.
5.11 Good Standing and Authority. Each of the parties represents and warrants
to the other (a) 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 (b) 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.
5.12 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.
Lir
633906.1
5
03/09/2006 10:18 6028406003 5070 N 40TH ST PHX HAUL ebi e
MAR-09-2006 06:20 PM 6269100269 P03
MAR 08,2006 19:13 BAMBOO PALACE REST 000-000-00000 Page 2 •
UJ/0:;:;00C 1 7:01 f,N','NJ►k 1n,i 4)(I.I I•i 110 rAcir tni w.
J
5.13 t,'loyeit',ttn,,,L,, t;. This Agreement is centt:rtal into in Arttrinu snit shall he
t.:artst,ruod atnd u tratpratati Under the law$ of Arizona. In pnttieutnr, this Agreement is sahtaet tr+
thn pnwittinna rttARLZ.lt_t':v,SI,>♦T *+3a... 1 1,
•
5.74 Reet niatjgp. '1•his Ainrrttn'(trit 4101 be'recorti44.in the Gftfcir►I lteccordet of
Mai icoptt County nu Inter than ten d$vt1 after this Agreetnrrtr is MilACIlto i by the Town and the
Developer
5,15 ,No I)SNc_I;a rAt,iituplti:stcOtatiun. Nothing rnitt0itvr;d ltorein or the Sirs FlAii
shall be deemed to ohlIOAte the Developer to oone ea.cc construction on or ooi ph:L.e any part or
all o:t'the Development of the 1'toperty; previdext. however, any dcyelopmruo ihsst is undertaken
h'e'the Dcvclu pu'shall lx.donc.in aecordr nc:a with this Agreement end the site
1N WTTNI7,SS W1HE1thO1•', the vin ins hzvc nxorii,M (Tlt•C ARret;lrleni, the tin 7ttc1 yew
host nbovr.wrincat
• It't'owu" 'vcvolopnr"
TOWN 01: Put;NTAI :UT IS.an f-IREROCIC PLAZA. 1.,1...(:., On Ait7,,►rio
mu►iitilutl ekir Rolm(loft Arizona litnitt41 liabilityconipaiv
r
zay fir? / / �(/Ll a^
W. J. Nichols awr _,_._,..._. . --• knm m al R Ft __.
(nL. Managing Member
A'1'1't':S1';
•
Bevelvn t Hcnde , i' 1 Clerk
t
personally appeared 441144,
}v.rsonslly known to me .o be the ncrson
name is subscribed to the within instrument :.;•�
Acknowledge to me thitt 11= cw cuted the saint in
his authorized capacities, and tkutt by his/i.or
aignaturc on the instrument the person,or the en:1',
upon behalf of which the person silo,l exceuttxl;.hi'
instrament. s ray hap nd official suo.l
'NZ" —- t
I tEU
'tt ��; Ctlwi 11152E988
%.,.t w+r.r
v, ;, „ MoIAAt PvBttCcLIFDRRtM UI
Ml'Calla. Mo�DR.20. 6 i
MAR Ue,ir006 I M:.40 MAr:I.r1,LAN MAMIE 6020406UU3 b,nge, 2
ACKNOWLEDGMENTS
STATE OF ARIZONA )
) ss.
County of Maricopa )
SUBSCRIBED AND SWORN to before me March , 2006 by W. J. Nichols, the
Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, by and on
behalf of the Town.
2t/
No ry : blic
My Commission Expires:
�.�� OFFICIAL SEAL y. JANE E. ROBINSOnN
y r.�s..-.. W
ti� is Notary Public-State of Arizona
STATE OF ARIZONA ) �\` •� MARICOPA COUNTY '
' My comm.expires Jen.28,2009
) SS. •s r
County of Maricopa )
SUBSCRIBED AND SWORN to before me March A, 2006 by Kamal Ramsumair, the
( Managing Member of FIREROCK PLAZA, L.L.C., an Arizona limited liability company, by and
on behalf o f the company.
Not
My Commission Expires:
ANNTZA GODINEZ
.G.__.. `:_:;>: NOTARY PUBLIC--ARIZONA
S.,�t ;)) MARICOPA COUNTY
My Commission Expires
February 4,2007
L
633906.1
7
u.» uJI Guuu iu. iu vu�u-ruuuu., . uu I$ tiuin of rnn rHVG G// ICJ
EXHIBIT B
TO
DEVELOPMENT AGREEMENT
BETWEEN
THE
TOWN OF FOUNTAIN HILLS
AND
FIREROCK PLAZA, L.L.C.
[Site Plana.
See following pages.
J
4339061
.e.l..1/e. /LjGb 1G: lb bt:1Lb4GbUGJ JG f G IY 4G I M 5I rnn rwar. Gb/It)
L. a 13..1.
//\ d
\ °
II
/,$,/i.,\, ,., \ I
l'?, / r"%i
0.e..... \
, C.,..?.. O_ .,.. 'r...-..f-,..?...:I1.4411:::-. ....1..''.::•!....-,Ii:gf."+.1".;:i...:•::;-•?.::.*:',...';"...j'''.1!''%,.'C'1,..t''':•,•' . —
-- ik' , < ...5A g.
r.\ lki • •\ \ \ V6,1% %;:.:.::::c1,1.i.f.7'..1•4'4's: *• *n.':)'e.: - --,,,11;- ''',)
\ =
\ \ �:ky:,,'�4'. C:'c-e�":L. . 1' t��/.LASS!
4.,___ LLJ
L „. , \ : -
cd
a \ \ erg/ .-�`.' Y -" �'.-}...:, ...,• ; �+ I Y
J \•P cr',j. t ..y-c 4i5�%:sl; .� ED Q C..)
• '‘' \-- c rz. 4 vv.;•.'...▪•:',•:::.!..:•'5:•i:•?'?••••3;:::•A:::fl•f•-i::::`•!...:.1• _ - -,,,a
i <coce
,..,,
2.)\ ,..:: ....„ : .,_,..,;....." : :.,.:•:_
i/ E.1.LLJ ,
., .., ,_
\ �V C �/ �• 1 L
N'�;i;•;v:�"�`•l•�f:}'e;tiC'''�:'^C•. N Vim. I U 1-1— O
6 ,
\ \
Oa ':.:.<'i,:v:".,•:•'ctin.:..:::.:.•;;.1....),,,-;..5',..•!.:'!.71. c° 141/ i t-
tii
':>,:, /!
IN)) Ce
1 ^ •• :I.�•`j..C1' , ,1'.i,.1
1 N
\ \
41Pril I
\-.)....''
,.—p.i.f",, \ \ ,,',, ,. ... . .. , 1 _.
4 I.
._ _5:� ''. .•
t \ ^9\ f tlii _.
?)
1 • L.w1
• CO
• Q 1
( t
L ,e, r_-?..\? V)
1 ,
r, EtiA.
N = •
uJi u� cuuo lu.io VULU tuVVUJ JV!V iv tiui n of me rHt7G 07/ 1C1
EXHIBIT A
TO
DEVELOPMENT AGREEMENT
BETWEEN
THE
TOWN OF FOUNTAIN HILLS
AND
FIREROCK PLAZA, L.L.C.
[Legal Description]
See following pages.
J
613006 1
UJF U71 LUUV 1V. lU uVGU UU_4J uV r v ii TV II I rll I 1 II, I 1141... lU, lU
EXHIBIT "A"
LEGAL DESCRIPTION
ORDER NO. 96250034
. Lots 5 and 6, Block 6, FOUNTAIN RILLS ARIZONA, FINAL PLAT NO. 412B, according
to the plat of record in the office of the County Recorder of Maricopa County,
Arizona, recorded in Book 163 of Maps, page 2.
EXCEPT all minerals as reserved in Patent from the United States of America:
and
EXCEPT all gas, coal and minerals whatsoever already found or which may
hereafter be found in or under said land, as reserved in instrument recorded
in Docket 13772, pages 1142 and 1144; and
EXCEPT all underground water in, under or flowing through said land and water
rights appurtenant thereto, as reserved in instrument recorded in Docket
13772, pages 1142 and 1144.
L
J
j