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HomeMy WebLinkAboutRes 2006-27 011 011 01 01 0 0 When recorded, please return to: I I OFFICIAL RECORDS OF ,o, IOWTown of Fountain Hills I MARICOPA COUNTY RECORDER H E L E N PUR C E L L 16705 E. Avenue of the Fountains I Fountain Hills, AZ 85268 I 2006-0609018 05/05/06 09:42 AM 3 OF 5 IPelum6ae Attn: Planning & Zoning I I CAPTION HEADING: Town of Fountain Hills Pre-Annexation Development Agreement Between the Town of Fountain Hills and The State of Arizona Resolution 2006-27 AN 2006-01 This is part of the official document. €��AIN mil. 4 C 1989 �i that is Aid4 Copies Routed To: ❑ Administration ❑ Engineering ❑ Planning and Zoning ❑ Parks & Recreation ❑ Magistrate Court RESOLUTION NO. 2006-27 Air"ow A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING THE PRE-ANNEXATION DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND THE STATE OF ARIZONA. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. That the Pre-Annexation Development Agreement the between the Town of Fountain Hills and the State of Arizona 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, Arizona, May 4, 2006. FOR THE TOWN OF OUNTAIN HILLS: ATTESTED TO: *r.+' W. J. Nic ols, Mayor Bevelyn J. Be r, T n Clerk REVIEW • APPROVED AS TO FORM: Atrk‘.. „ imothy . Pickering, Tow anager Andrew J. McGuire, Town Attorney L 646521.1 EXHIBIT A TO 'ire RESOLUTION NO. 2006-27 [Pre-Annexation Development Agreement] See following page. L 646521.1 bb ATTACHMENT A When recorded,return to: Town Clerk Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills,AZ 85269 PRE-ANNEXATION DEVELOPMENT AGREEMENT THIS RE-ANNEXATION DEVELOPMENT AGREEMENT (this "Agreement") is entered into '4 ,2006 (the "Effective Date"),by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the "Town") acting by and through the Mayor and Council of the Town (the "Council") and the STATE OF ARIZONA (the "Owner"), acting by and through the State Land Commissioner (the "Commissioner"). The Town and Owner are sometimes referred to herein collectively as the"Parties" or individually as a"Party". RECITALS: A. ATuz.REV. STAT. § 9-500.05 authorizes the Town to enter into an agreement with any person or entity having an interest in real property providing for the annexation and development of such property and certain development rights thereon. B. The Owner owns approximately 1,276 acres of real property located adjacent to the Town limits in Maricopa County, Arizona, legally described in Exhibit A and depicted on Exhibit B, both of which are attached hereto and incorporated herein by reference (the "Property"). The Property is land granted to the Owner in trust by the Arizona-New Mexico Enabling Act (the "Enabling Act") and administered by the Commissioner and the State Land Department (the "Department") in the best interest of the State Land Trust (the "Trust") created by Article 28 of the Enabling Act. C. The Owner has initiated the process to sell the Property pursuant to the recently filed Application to Purchase,No. 53-110233, received from Suncor Development Company, an Arizona corporation. The Owner intends to sell the Property at public auction during the 2005- 06 fiscal year. D. The Department's sale process requires that an appraisal be performed on the parcel, and one factor of the appraisal process, among others, is an assessment and analysis of the existing entitlements on the property. E. The Property is currently zoned Rural-43 (which permits one single-family dwelling unit per 43,560 square foot lot) in the unincorporated area of Maricopa County and bears an "Open Space" land use designation under the Town's General Plan (the "General Plan"). The Property is also designated "General Plan Development Area" under the Maricopa 608275.14 County Comprehensive Plan, which requires the County to use the Town's adopted General Plan as a guideline to any proposed rezoning. F. The Owner desires to amend the General Plan in order to prepare the Property for sale at public auction by assisting with the State's appraisal process. By amending the General Plan, the Owner intends to enhance the value of the Property by eliminating the valuation and development uncertainty associated with the Open Space land-use designation on the Property under the General Plan and to prepare the Property for development by the successful bidder after the auction of the Property. G. The Town desires to amend the General Plan in order to prepare the Property for annexation by the Town and to prepare for and facilitate the development of the Property within the Town limits pursuant to Town development standards. H. The Town desires to annex the Property into the corporate limits of the Town, to be developed as an integral part of the Town, to provide for the orderly, controlled and quality growth in the area, to improve and enhance the economic welfare of the residents of the Town, to ensure that the Property is developed to Town standards, and to increase the revenues to the Town, which revenues (i) would not be generated without such annexation and development of the Property and (ii) are necessary to help offset the impact on the Town's infrastructure from development on the Property. I. The Owner has established guidelines for the annexation of Trust Lands. In those Leiguidelines, the Department requests that the municipality identify specific benefits to the Trust that will result from the proposed annexation, including, among other factors, a description of the development and entitlement agreements that would be included in the annexation, the proposed general plan land use designations, density and zoning and a timeline for initiating the zoning upon annexation. J. The specific benefits that the Town has identified that will result to the Trust if the Owner agreed to permit the annexation of the Property into the Town are the Town's agreement to process for the Council's consideration an amendment to the Town's General Plan (the "General Plan Amendment") and an application to rezone the Property to single-family residential land uses of a gross average density of approximately 1.37 units per acre and a maximum of 1,750 residential units (the "Rezoning") and to pursue both the General Plan Amendment and the Rezoning processes in an expedited and good faith manner. The Town further agrees to expedite the Town's development approval processes for Owner's successor in interest. K. In exchange for the Town agreeing to provide the Owner with the foregoing specific benefits, the Owner hereby agrees to accept and process the Town's Request for Annexation with a recommendation for approval to the State Selection Board (the "Selection Board") in such a manner so as to have the matter presented to the Selection Board for its consideration and approval no later than March 31, 2006. Upon receipt of the approval from the Selection Board, the Town will file an annexation petition with Maricopa County and hearings will be scheduled and held in connection with the annexation of the Property into the Town. 608275.14 2 ,i,,, L. The Town has determined that encouraging the development of the Property pursuant to this Agreement will result in significant planning, economic and other public purpose benefits to the Town and its residents by, among other things (i) the construction of public improvements, (ii) the development of the Property in a manner consistent with the Town's amended General Plan, (iii) an increase in revenues and development fees to the Town arising from or relating to the development of the Property and (iv) the creation of new jobs and otherwise enhancing the economic welfare of the residents of the Town. M. The Parties understand and acknowledge that this Agreement is a "Development Agreement" within the meaning of and entered into pursuant to the terms of ARIZ. REV. STAT. § 9-500.05, in order to facilitate the annexation, proper municipal zoning designation and development of the Property by providing for, among other things (i) conditions, terms restrictions and requirements for the annexation of the Property by the Town, (ii) the permitted uses for the Property, (iii) the density and intensity of such uses and (iv) other matters related to the development of the Property. The terms of this Agreement shall constitute covenants running with the Property as more fully described in this Agreement. AGREEMENT NOW THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference, the promises contained in this Agreement and for good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties hereto vim,,.,,- agree as follows: ARTICLE I ANNEXATION AND ZONING 1.1 General Plan Amendment, Annexation, Rezoning and Rescission. a. General Plan Amendment Process. Upon execution of this Agreement by the Commissioner, or as soon thereafter as reasonably possible, the Town shall comply with the provisions of ARIZ. REV. STAT. § 9-461.06 regarding the amendment to the General Plan for the benefit of the Property. The Town shall process the General Plan Amendment for the Council's consideration on the same date the Council considers the Annexation Ordinance. The Town shall not be obligated to execute this Agreement unless and until the Council has approved the General Plan Amendment. Should the Town fail to adopt the General Plan Amendment concurrently with or prior to the adoption of the Annexation Ordinance, (i) this Agreement shall not become effective and neither Party shall have any obligations under this Agreement and (ii) the Council shall not further consider the Annexation Ordinance. Nothing in this Section is intended to limit the discretion of the Town in reviewing, adopting or declining to adopt the General Plan Amendment. b. Annexation Process. Upon the execution of this Agreement by the Commissioner, or as soon thereafter as reasonably possible, the Town shall initiate the process for annexing the Property into the Town. At or near the time the Town initiates the annexation 608275.14 3 process, it shall submit to the Owner a request for annexation of the Property, in a form suitable A,war, to the Owner (the "Request for Annexation"). The Owner hereby agrees to•accept and process the Town's Request for Annexation with a recommendation for approval to the Selection Board in such a manner so as to have the matter presented to the Selection Board for its consideration and approval no later than March 31, 2006. Nothing in this Section is intended to limit the discretion of the Selection Board in reviewing, adopting or declining to adopt the Request for Annexation. If approved,the Commissioner shall deliver to the Town written approval from the Selection Board and the Commissioner for filing pursuant to ARIz. REV. STAT. § 9-471(A)(1). Upon receipt of the approval from the Selection Board and the Commissioner, the Town agrees to comply with the provisions of ARIz. REV. STAT. § 9-471 et seq. regarding the annexation process, including filing an annexation petition with Maricopa County and scheduling hearings and, if determined by the Council to be in the best interest of the Town, adopt the final ordinance annexing the Property into the corporate limits of the Town. The Town shall submit the final annexation ordinance for the Property (the "Annexation Ordinance") to the Council for its consideration on the same date as the Council considers the General Plan Amendment. If the Council approves the General Plan Amendment and approves and causes the Agreement to become effective, the Council may consider the Annexation Ordinance and adopt same if determined by the Council to be in the best interest of the Town. c. Rezoning Process. If the General Plan Amendment and the Annexation Ordinance have been adopted by the Council, the Town agrees to (i) approve or disapprove the Rezoning at the same Council meeting as adoption of the Annexation Ordinance, either at a regularly-scheduled or special meeting of the Council and (ii) ensure that such ordinance is *ftmg,,, "available" (as defined in ARIZ. REV. STAT. § 19-142) on the day following the date of passage. In the event that the Council determines that it is in the best interests of the Town to continue the Rezoning to a date following the date of its approval of the Annexation Ordinance, then the Council shall reconsider the Annexation Ordinance and shall continue it to the same date as the- continued consideration of the Rezoning; provided, however, that the Town shall not continue such consideration of the Rezoning and the Annexation Ordinance beyond the date that is 90 days prior to the date the Property is offered for sale at auction as set forth above. 1. Initial Zoning. As part of the approval of the final Annexation Ordinance annexing the Property into the corporate limits of the Town and pursuant to ARIz. REV. STAT. § 9-471(L), the Town is mandated to adopt zoning classifications which permit densities and uses no greater than those permitted by Maricopa County immediately preceding the annexation. The current zoning of the Property under the Maricopa County zoning ordinance is Rural-43. The Parties agree that as part of the Annexation Ordinance, the Town is mandated to designate the Property as R1-43 under the Town's zoning ordinance. 2. Concurrent Rezoning. The Town shall process for the Council's consideration an application to rezone the Property to single-family residential land uses of a gross average density of approximately 1.37 units per acre and a maximum of 1,750 residential units and shall pursue the Rezoning process in an expedited and good faith manner. The Town shall initiate a separate rezoning process for the Property that shall Cro run concurrently with and be presented to the Council at the same Council hearing as the 608275.14 4 Town's Annexation Ordinance. The Town shall serve as the applicant for the Rezoning wr and there shall be no application and processing fees chargeable to the Owner related to the Rezoning process. The Town's Rezoning shall comply with,all public meeting requirements of ARIz. REV. STAT. § 9-462.04. The Town agrees to hear the Rezoning application immediately after and at the same Council meeting as the Council hears and considers the Annexation Ordinance pursuant to ARIZ.REV. STAT. § 9-471(D). d. Rescission of Annexation Ordinance and Rezoning. If the Rezoning is not approved at the same Council meeting as adoption of the Annexation Ordinance, the Council shall (by Motion for Reconsideration or other appropriate means) repeal the Annexation Ordinance prior to expiration of the 20-day period following the Council's adoption of the Annexation Ordinance and before annexation of the Property is final and effective under applicable law, even if the Council must hold a special meeting to do so. The Annexation Ordinance shall contain provisions (i) requiring repeal of the Annexation Ordinance by the Town if (a) any person, other than a Party, files a verified petition with the Town challenging the validity of the annexation, (b) the Town does not approve the General Plan Amendment (if not previously approved and effective) and the Rezoning, subject only to those conditions on development of the Property acceptable to the Owner, which acceptance shall not be unreasonably withheld, conditioned or delayed, at the same Council hearing as adoption of the Annexation Ordinance, (c) any person, other than a Party, files a verified petition with the Town challenging the Annexation, the General Plan Amendment or the Rezoning for the Property or (d) any person, other than a Party, files a verified petition with the Town challenging the validity of this Agreement and (ii) causing the automatic repeal of the Annexation Ordinance in the event .,.► that the Council fails to repeal the Annexation Ordinance as set forth above. The Parties agree that nothing in this Agreement shall affect the Town's ability to approve or deny the proposed annexation of the Property, the General Plan Amendment or the Rezoning or to impose conditions on development of the Property. 1.2 Alternate Annexation, General Plan Amendment and Rezoning Process. The Town and the Owner agree and understand that development of the Property within the corporate limits of the Town has significant value to both Parties. Therefore, if the Town repeals the Annexation Ordinance or the Rezoning as set forth in subsection 1.1(d) above due to the filing of a verified petition challenging same, the alternative process, as set forth in this Section 1.2, shall apply. If the General Plan Amendment is approved and effective, the Owner may proceed with a rezoning of the Property with Maricopa County in a manner consistent with the General Plan Amendment (the "County Rezoning"). After the County Rezoning is adopted and effective, the Owner shall notify the Town in writing and shall request that the Town begin the process for annexation of the Property into the corporate limits of the Town. Upon receipt of such annexation request, the Town agrees to comply with the provisions of ARIz. REV. STAT. § 9-471 et seq. regarding the annexation process and, if determined by the Council to be in the best interest of the Town, adopt the final ordinance (the "Subsequent Annexation Ordinance") annexing the Property into the corporate limits of the Town. If the Subsequent Annexation Ordinance is adopted, the Town agrees to (i) approve or disapprove a rezoning for the Property consistent with the County Rezoning (the "Subsequent Town Rezoning") at the same Council meeting as adoption of the Subsequent Annexation Ordinance or within ten days thereafter, ,,,, either at a regularly-scheduled or special meeting of the Council and (ii) ensure that such 608275.14 5 ordinance is "available" (as defined in ARIZ.REV. STAT. § 19-142) on the day following the date of passage. If the Subsequent Town anon Ordinance,oning is not approved Council same shall (by Council Motion meeting for as adoption of the Subsequent Annex Reconsideration or other appropriate means) repeal the Subsequent Annexation Ordinance prior to expiration of the 20-day period following the Council's adoption of the Subsequent Annexation Ordinance and before annexation of the Property is fmal and effective under applicable law, even if the Council must hold a special meeting to do so. The Subsequent Annexation Ordinance shall contain provisions requiring repeal of the Subsequent Annexation Ordinance by the Town if(i) the Town does not approve the Subsequent Town Rezoning at the same Council hearing as adoption of the Subsequent Annexation Ordinance or within ten days thereafter or (ii) any person, other than a Party, files a verified petition with the Town challenging the Annexation or the Subsequent affect the Town's g for the Property.ab ability to approve orhdene y the es agree that nothing in this Agreement shall proposed Annexation of the Property, to approve or deny the Subsequent Town Rezoning or to impose conditions on development of the Property. 1.3 State Conceptual Plan. Pursuant to ARIZ. REV. STAT. § 37-331.03, the Commissioner shall conditionally approve the Department's Conceptualand shall adopt the FPnal Conceptuallan prior to e date Plan, the Council adopts the General Plan Amendment which shall be consistent with the General Plan Amendment adopted by the Council. 1.4 Formation of Community Facilities District. Any improvements to be constructed by Owner may be constructed, at Owner's option, through community facilities districts (individually, a"CFD"), and the Town will cooperate in the organization of CFDs. Upon written request of Owner, the Town within Town's reasonable timeframes, shall conduct such procedures as are necessary to consider formation of one or more Community Facilities Districts pursuant to ARIZ. REV. STAT. § 48-701 et seq. for any purpose authorized by applicable law. With respect to any CFD, Owner will be required to enter into a CFD development agreement not inconsistent with this Agreement, pay all applicable fees, and (except to the extent otherwise provided in the applicable CFD development agreement) comply with any adopted district policies and the Town of Fountain Hills Community Facilities District Policy, adopted on March 20, 2003, as may hereafter be amended from time to time. The intent of the Parties is that Owner will use (i) bond funds (in accordance with the District's prevailing policies and practices as provided in the applicable CFD development agreement) obtained pursuant to this Section to offset the costs of Project infrastructure, parks, and landscaping and(ii)tax revenues received for debt service on bonds and operation, administration v and tomaintenance form a CFDe or for the CFD,enses. n f g contained herein shall be construed to compel formed,to finance any infrastructure improvements. 1.5 ted ights. Upon adoption of the Rezoning, the Owner, its successors and assigns, shall have a vested right to develop and use the Property in accordance with this Agreement and the Rezoning. The determinations of the Town in this Agreement and the assurances provided to Owner in this Agreement provided pursuant to and as contemplated by ARIZ.REV. STAT. § 9-500.05 and other applicable law. r 608275.14 6 1.6 Term And Effective Date. The Owner, its successors and assigns, shall have the w•er right to implement development on the Property in accordance with this Agreement for a period of ten years from the date the Council adopts the Rezoning, at which time this Agreement shall automatically terminate as to the Property without the necessity of any notice, agreement, or recording by or between the Parties (the "Term"). This Agreement shall become effective upon approval by the Council. 1.7 Rights Run with the Land. The rights established under this Agreement are attached to and run with the Property. The Owner and its successors are entitled to exercise the rights granted pursuant to this Agreement and the Rezoning. This Agreement shall be interpreted and construed so as to preserve any vested rights respecting the Owner and/or the Property existing under this Agreement, the Rezoning and applicable law. Upon the Owner obtaining and delivering to the Town its successor's written acknowledgment and acceptance of this Agreement and agreement to comply with the obligations contained in this Agreement, the Owner shall be relieved of its obligations hereunder and the Town shall look only to the Owner's successor for performance of the Owner's duties herein. The Owner shall only be liable for performance of the Owner's obligations under this Agreement during the period the Owner owns a portion of the Property. 1.8 Development Regulations. a. Plan Approvals. The Town agrees to cooperate by processing, in a timely manner, applications for approval, review and issuance of plans, specifications, permits, plats or Thome any other required filings which are consistent with this Agreement and the approved Rezoning, subject to the Owner having first (i) complied with the ordinances and regulations applicable thereto and all platting, application, permit requirements and (ii) paid the then-current applicable fees. b. Subsequent Zoning Amendments. In recognition of the valuable considerations being provided by the Owner pursuant to this Agreement and in further recognition that the assurances provided to Owner in this Agreement are intended to be and have been relied upon by Owner to its detriment in undertaking such expenditures, the Town hereby agrees that the Owner shall have the right to develop the Property in accordance with the approved Rezoning and the terms of this Agreement. Town agrees to cooperate by processing, in a timely manner, the approval and issuance of plans, specifications or plats consistent with the approved Rezoning. The issuance and approval of such permits, plans, specifications, or plats is subject to the Owner complying with the ordinances applicable thereto and the Owner paying the then-current applicable fees. Town shall not adopt or change any ordinance, regulation or other control that is not uniform and that discriminates in its application against the Owner or the Property. The Owner and Town agree that after the Rezoning has been approved, any and all subsequent zoning ordinances or requirements, zoning restrictions, addenda and revisions adopted by the Town will not be applied to the Property except as may be required pursuant to subsection 1.8(d) below. Except as may be required pursuant to subsection 1.8(d) below, the Town shall not impose or enact additional conditions, overlays, exactions, requirements, dedications, rules or regulations applicable to or governing the development of the Property, except those that may be mutually agreed to by the Parties. 608275.14 7 411V+rr c. Subsequent Plan Modifications. The Owner anticipates, at this time, completing development over a ten-year term in multiple phases. The time frames and physical boundaries for each of the phases are to be provided to the Town as part of the Rezoning process and shall be subject to modification by the Owner contingent upon market conditions, industry factors, business considerations and matters beyond the control of the Owner. Owner modifications to the time frames and physical boundaries of the phases shall not necessitate an amendment to this Agreement, but shall be provided to the Town Planning Director and retained in the Town's official file for the Property. The Town and the Owner acknowledge and agree that amendments to this Agreement and to the plan of development to be submitted as part of the Rezoning (the "Rezoning Plan")may be necessary from time to time to reflect changes in market conditions and development financing and/or to meet the new requirements of one or more of the potential users or builders of any part of the Property. If and when the Town and Owner find that changes or adjustments are necessary or appropriate, they shall effectuate minor changes or adjustments through administrative amendments approved by the Commissioner, or authorized designee, and the Town Manager, or authorized designee, which, after execution, shall be attached to the Rezoning Plan or this Agreement, as applicable, as an addendum and become a part thereof, and may be further changed and amended from time to time as necessary with the approval of the Town and the Owner. No such minor amendment shall require prior notice or hearing. For purposes of this Agreement, a "minor" amendment shall refer to any change that does not (i) increase the number of approved residential units, (ii) increase the approved density for the Property, (iii) change or relocate an approved land use for the Property or (iv) change the circulation system for the Property. A "major amendment" shall refer to any amendment that is. not a minor amendment. All major changes or amendments shall be reviewed by the Planning and Zoning Commission and approved by the Council. The parties shall cooperate in good faith to agree upon, and use reasonable best efforts to process, any minor or major amendments to the Rezoning Plan or this Agreement. The Owner and the Town agree that any amendment to the Rezoning Plan 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. d. Limitation on Town Amending Existing Approvals and Standards. The Town shall not apply to the Property any legislative or administrative land use regulation or requirement adopted by the Town that would change, alter, impair, prevent, diminish, delay or otherwise impact the development or use of the Property as set forth in the Rezoning approval except (i) as specifically agreed to in writing by the Owner, (ii) future generally applicable ordinances, rules, regulations, and permit requirements of the Town reasonably necessary to alleviate legitimate severe threats to public health and safety, in which any ordinance, rule, regulation, permit requirement or other requirement or official policy imposed in an effort to contain or alleviate such a legitimate severe threat to public health and safety and, except in a bona fide emergency, may be imposed only after public hearing and comment and shall not, in any event, be imposed arbitrarily or in a discriminatory fashion, (iii) adoption and enforcement of zoning ordinance provisions governing nonconforming property or uses, (iv) future land use ordinances, rules, regulations, permit requirements and other requirements and official policies of the Town enacted as necessary to comply with mandatory requirements imposed on the Town by county, state or federal laws and regulations, court decisions and other similar superior 608275.14 8 external authorities beyond the control of the Town; provided, however, that in the event any it lir such mandatory requirement prevents or precludes compliance with this Agreement, if permitted by law, such affected provision of this Agreement shall be modified as may be necessary to achieve the minimum permissible compliance with such mandatory requirements and (v) future updates of, and amendments to, existing building, plumbing, mechanical, electrical, and similar construction and safety related codes adopted by the Town. Nothing set forth herein shall be interpreted as relieving the Owner of any obligation that it may have with respect to laws and regulations enacted by the Federal government or the State of Arizona. Nothing in this Agreement shall alter or diminish the authority of the Town to exercise its eminent domain powers following the Owner's public auction of the Property. 1.9 Development Fees. a. Development Fee Reimbursement. Some of the public infrastructure improvements that the Owner may be required to install or pay for on the Property are or may be included within the infrastructure improvements to be funded by various Town-imposed impact, development, resource, connection, or hookup fees currently in effect or as may be adopted in the future (such fees, however named, shall be referred to collectively as "Development Fees"). The Town expressly agrees that the Owner is entitled to receive reimbursement for any Development Fee paid for the design and construction of such public infrastructure improvements that are components of, and specific to, any particular Development Fee payable by development on the Property. The Owner may receive as part of the reimbursement the value Lie of any real property necessary for the location of the public infrastructure improvements (but only if such h value is included as a component of that particular Development Fee and only for the value used to determine the amount of the particular Development Fee). All public infrastructure improvements that are to be constructed by Owner and dedicated to the Town that are to be reimbursed to the Owner must be publicly bid in conjunction with the Town using the procedures described in Title 34 of the Arizona Revised Statutes in the same manner as if the Town were constructing the improvement. b. Development Fee Credits. As an alternative to reimbursements from Development Fees as set forth in subsection 1.9(a) above,the Owner, at its sole option,may elect to receive credits against any or all of Development Fees payable for the design and construction of such public infrastructure improvements that are components of, and specific to, any particular Development Fee payable by development on the Property. The Owner may receive as part of the credit the value of any real property necessary for the location of the public infrastructure improvements (but only if such value is included as a component of that particular Development Fee and only for the value used to determine the amount of the particular Development Fee). In no event may the credits in each category of Development Fees exceed the Development Fee paid or to be paid by development on the Property. Such public infrastructure improvements that are the subject of credits against Development Fees are not required to be publicly bid. L 608275.14 9 ARTICLE II COOPERATION AND ALTERNATIVE DISPUTE RESOLUTION 2.1 Appointment of Representatives. To further the cooperation of the Parties in implementing this Agreement, the Town and the Owner each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Owner. The initial representative for the Town (the "Town Representative") shall be the Planning and Zoning Administrator and the initial representative for the Owner shall be its project manager, as identified by the Owner from time to time (the "Owner 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. 2.2 Expedited Review. The Town acknowledges and agrees that it is desirable for the Owner to proceed rapidly with the implementation of this Agreement and the Rezoning and that, accordingly, so long as the Owner complies with any legally-required rules and customary administrative procedures related to such processes, the Town agrees to promptly review and process the development plans and infrastructure improvement plans and further agrees that no unusual or extraordinary review requirements will be imposed by the Town and that construction permits, occupancy permits and other permits and approvals required by the Town to develop the Property will not be unreasonably delayed or withheld or conditioned. The Town further agrees, when requested by Owner, to expedite approvals, inspections and permitting processes (i) as much as possible within the limits of the Town's then-existing staff or (ii)by utilizing third-party inspectors and/or third-party plan reviewers through the Town's established process, with the ,, cost of such inspections and plan reviews to be paid by Owner. In the event the Owner gives notice to the Town electing to have the Town implement an expedited development review and/or construction inspection process, and the Town responds in writing stating that it does not have the personnel or resources to provide the expedited review or inspection, then the Owner shall engage at its cost such private independent consultants and advisors as are approved by the Town to assist it in the review and/or inspection process; provided, however, that such consultants and advisors shall take instruction from, be controlled by, and be responsible to the Town rather than the Owner. 2.3 Impasse; Dispute Resolution. The Parties agree that if at any time the Owner reasonably believes an impasse has been reached with the Town staff on any issue affecting the Property, the Owner shall have the right to immediately appeal to the Town Manager for an expedited decision pursuant to this Section. If the issue on which an impasse is reached is an issue where a final decision can be reached by the Town staff, the Town Manager shall give the Owner a final decision within 30 days after the Owner'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, the Town Manager shall schedule a Town Council hearing on the issue within 30 days after Owner's request for an expedited decision; provided, however, that if the issue is appropriate for review by the Town's Planning and Zoning Commission, the matter shall be first submitted to the Planning and Zoning Commission within 30 days, and then to the Town Council. Both the Town and Owner agree to continue to use reasonable good faith efforts to resolve any impasse pending any such expedited decision. 608275.14 10 2.4 Town Facilitation With Other Entities. The Town agrees to use its best efforts to +ow'''r" assist the Owner, to the extent reasonably possible, by cooperation with the Chaparral City Water Company and the Fountain Hills Sanitary District relating to water and sewer infrastructure for the Property. ARTICLE III REPRESENTATIONS AND WARRANTIES 3.1 Town Representations. The Town represents and warrants to the Owner that: a. The Town has the full right, power and authorization to enter into and perform this Agreement and each of Town's obligations and undertakings under this Agreement, and the Town's execution, delivery and performance of this Agreement have been duly authorized and agreed to in compliance with the requirements of the Town Code. b. All consents and approvals necessary to the execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery and performance. c. The Town will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. Low d. As of the date of the Agreement, the Town knows of no litigation, proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of the Town or its officials with respect to this Agreement, which has not been disclosed in writing to the Owner. e. This Agreement (and each undertaking of the Town contained herein), constitutes a valid, binding and enforceable obligation of the Town, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. The Town will use reasonable efforts to defend the validity and enforceability of this Agreement in the event of any proceeding or litigation arising from its terms that names the Town as a party or which challenges the authority of the Town to enter into or perform any of it obligations hereunder. The severability and reformation provisions of Section 5.10 below shall apply in the event of any successful challenge to this Agreement. f. The Town has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 3.2 Owner Representations. The Owner represents and warrants to the Town that: a. The Owner has the full right, power and authorization to enter into and perform this Agreement and each of Owner's obligations and undertakings under this 608275.14 1 1 Agreement, and the Owner's execution, delivery and performance of this Agreement have been '""'"'drag" duly authorized and agreed to in compliance with State Law. b. All consents and approvals necessary to the execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery and performance. c. The Owner will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. d. As of the date of this Agreement, the Owner knows of no litigation, proceeding or investigation pending or threatened against or affecting the Owner, which could have a material adverse effect on the Owner's performance under this Agreement, which has not been disclosed in writing to the Town. e. This Agreement (and each undertaking of the Owner contained herein) constitutes a valid, binding and enforceable obligation of the Owner, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity. The Owner will use reasonable efforts to defend the validity and enforceability of this Agreement in the event of any proceeding or litigation arising from its terms that names the Low Owner as a party or which challenges the authority of the Owner to enter into or perform any of its obligations hereunder. The severability and reformation provisions of Section 5.10 below shall apply in the event of any successful challenge to this Agreement. f. The execution, delivery and performance of this m Agreement instruments, y the On s or er is not prohibited by, and does not conflict with, any other agreements, decrees to which the Owner is a party or to which the Owner is otherwise subject. g. The Owner has not paid or given, and will not pay or give, any third party an any money or other consideration for obtaining this service Agreement such as the other services of ofal costs of architects, conducting business and costs of pro to Ariz. REV. engineers and attorneys, including any reimbursements to the applicant, pursuant STAT. § 37-205, that has prepared any documents or taken any actions on behalf of the Owner or the Property. h. The Owner has been assisted by counsel in connection with the preparation and execution of this Agreement. ARTICLE IV DEFAULT; REMEDIES; TERMINATION 4.1 Default. Failure or unreasonable delay by the Owner or Town to perform or otherwise act in accordance with any term or provision hereof shall constitute a breach of this Agreement and, if the breach is not cured within 45 days after written notice thereof from the 608275.14 12 other Party, shall constitute a default under this Agreement; provided, however, that if the failure low""' is such that more than 45 days would reasonably be required to perform such action or comply with any term or provision hereof, then the Party shall have such additional time as may be necessary to perform or comply so long as the Party commences performance or compliance within said 45-day period and diligently proceeds to complete such performance or fulfill such obligation (the "Cure Period"); provided further, however, that no such cure period shall exceed 90 days. Any notice of a breach shall specify the nature of the alleged breach and the manner in which said breach may be satisfactorily cured, if possible. In the event a breach is not cured within the Cure Period, the non-defaulting Party shall have all rights and remedies which may be available under law or equity, including without limitation the right to specifically enforce any term or provision of this Agreement and/or the right to institute an action for damages. 4.2 Dispute Resolution. In the event that there is a dispute hereunder which the Parties cannot resolve between themselves, the Parties agree that there shall be a 45 day moratorium on litigation during which time the Parties agree to attempt to settle the dispute by non-binding mediation before commencement of litigation. The mediation shall be held under the commercial mediation rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by the Owner and the Town. In the event that the Parties cannot agree upon the selection of a mediator within seven days, then within three days thereafter, the Town and the Owner shall request the presiding judge of the Superior Court in and for the County of Maricopa, State of Arizona, to appoint an independent mediator. The mediator selected shall have at least five years experience in mediating or arbitrating disputes relating to land and property development. The cost of any such mediation shall be divided equally between the Town and the Owner. The results of the mediation shall be non-binding on the Parties, and any Party shall be free to initiate litigation. This Section 4.2 shall not apply to any legal rights of the Owner that must be exercised within a certain number of days that is less than 45. 4.3 No Personal Liability. a. Town to Owner. No member, official, employee or agent of the Town shall be personally liable to the Owner, or any successor or assignee (i) in the event of any default or breach by the Town or (ii) pursuant to any obligation of the Town under the terms of this Agreement. b. Owner to Town. No member, official, employee or agent of the Owner shall be personally liable to the Town (i) in the event of any default or breach by the Owner, (ii) for any amount that may become due to the Town or (iii) pursuant to any obligation of the Owner under the terms of this Agreement. 4.4 Owner's Remedies. In the event that the Town is in breach under this Agreement and the Town thereafter fails to cure any such breach within the time period described in Section 4.1 above, then, in addition to pursuing any and all other legal and equitable remedies which the Owner may have against the Town, the Owner shall have the right to automatically terminate this Agreement immediately upon written notice to the Town; provided, however, that any such 608275.14 13 termination shall not affect any term that is intended to extend beyond the default under this """"vow Agreement. 4.5 Town's Remedies. In the event that the Owner is in breach under this Agreement and the Owner thereafter fails to cure any such breach within the time period described in Section 4.1 above, then, in addition to pursuing any and all other legal and equitable remedies which the Town may have against the Owner, the Town shall have the right to automatically terminate this Agreement immediately upon written notice to the Owner; provided,however, that any such termination shall not affect any term that is intended to extend beyond the default under this Agreement. ARTICLE V GENERAL PROVISIONS 5.1 Cooperation. The Town and the Owner hereby acknowledge and agree that they shall cooperate in good faith with each other and use best efforts to pursue the sale at public auction and development of the Property as contemplated by this Agreement. 5.2 Time of Essence. Time is of the essence with respect to each and every provision of this Agreement and the performance required by each Party hereto. 5.3 Conflict of Interest. Pursuant to Arizona law, rules and regulations, no member, Low official or employee of the Town shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. This Agreement is subject to cancellation pursuant to ARIz. REV. STAT. § 38-511. 5.4 Notices. All notices, approvals, and other communications provided for herein or given in connection herewith shall be validly given, made, delivered or served, and delivered personally or sent by nationally recognized courier (e.g., Federal Express, Airborne, UPS), or by United States mail, certified with return receipt requested,to: If to the Town: Town of Fountain Hills 16705 E. Avenue of the Fountains Fountain Hills, Arizona 85268 Facsimile: 480-837-3145 Attn: Timothy G. Pickering, Town Manager With a copy to: GUST ROSENFELD P.L.C. 201 E. Washington, Suite 800 Phoenix, Arizona 85004-2327 Facsimile: 602-340-1538 Attn: Andrew J. McGuire,Esq. 608275.14 14 If to Owner: Arizona State Land Department Apv vow 1616 West Adams Phoenix, Arizona 85007 Attn: Mark Winkleman, Commissioner With a copy to: Arizona Attorney General's Office Natural Resources Section Agency Counsel Division 1275 West Washington Phoenix, Arizona 85007 Attn: Patricia J. Boland, Assistant Attorney General or to such other addresses as any Party hereto may from time to time designate in writing and deliver in a like manner. Notices, approvals and other communications provided for herein shall be deemed delivered upon personal delivery, within 24 hours following deposit with a nationally recognized overnight courier, or within 48 hours following deposit with the United States mail, certified with return receipt requested, as hereinabove provided, prepaid and addressed as set forth above. 5.5 Estoppel Certificate. Either Party may request of the other Party, and the requested Party shall, within 21 calendar days, respond and certify by written instrument of the requesting Party that (i) this Agreement and any approvals contemplated herein are unmodified and in full force and effect, or if there have been modifications, that such are in full force and effect as modified, stating the nature and date of such modification, (ii) the existence of a default and the scope and nature of the default, (iii) the existence of any counterclaims which the requested Party has against the other Party and (iv) any other matters that may reasonably be requested in connection with the development of land, development of the Property or any material aspect of the zoning,plat or other approval. 5.6 Governing Law. This Agreement an shall be dispute interpreted and shall governed Maricopa County, laws of the State of Arizona. The venueY P Arizona, and the Parties hereby irrevocably waive any right to object to such venue. 5.7 Successors and Assigns inuregreement shall run with the to the benefit of and be binding upon the nd and all of the covenants and conditions set forth herein shall successors and assigns of the Parties hereto. 5.8 Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver by either Party of any breach of any of the terms, covenants or conditions of this Agreement shall be construed or held or to condition herein ycon succeeding or preceding breach of the same for any other term, covenant ained. 5.9 Attorneys' Fees. In the event of any actual litigation between the Parties in connection with this Agreement, the Party prevailing in such action shall be entitled to recover from the other Party all of its costs and fees, including reasonable attorneys' fees, which shall be determined by the court and not by the jury. 608275.14 15 5.10 Limited Severability. The Town and the Owner each believe that this Agreement iivir IMP" was executed, delivered and performed in compliance with all applicable laws. However, in the unlikely event that any phrase, clause, sentence, paragraph, section, article or other portion of this Agreement is declared void or unenforceable by a court of competent jurisdiction (or is construed as requiring the Town to do any act in violation of any applicable laws, constitutional provision, law, regulation or Town Code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic or otherwise)to the Parties as if such severance and reformation were not all amendments,The nstruments and consents agree, necessary circumstances, to do all acts and to execute to accomplish and to give effect to the purposes of this Agreement, as reformed. 5.11 Schedules and Exhibits. All schedules and exhibits attached hereto are incorporated herein by this reference as though fully set forth herein. 5.12 Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties hereto, oral or written, are hereby superseded by and merged into this Agreement. 5.13 Recordation of Agreement. This Agreement shall be recorded in the Official Records of Maricopa County, Arizona, within ten days after its approval and execution by the Town. 5.14 Future Effect. The provisions of this Agreement are binding upon and shall inure to the benefit of the Parties, and all of their successors in interest and assigns; provided,however, that the Owner may assign its respective rights and obligations hereunder, in whole or in part, to a person or entity that has acquired title to the Property or a portion thereof, but only by a written instrument recorded in the Official Records of Maricopa County, Arizona, expressly assigning such rights and obligations. In the event of a complete assignment, the assigning Party shall be relieved of any further liability written noti e of the assignment to ten the Town,after which noticeg shall ent hereunder, Owner shall provide include the name and address of the assignee. 5.15 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 agreement between the Owner and the Town. No s or provision of this entity not a Party heretoAand no nt such is intended to, or shall, be for the benefit of any person or other person or entity shall have any right or cause of action hereunder. all such 5.16 Additional Acts and Donuments.exe uteEach and deliver such hereto agrees otherodocument wand ngs and take all such actions, and to instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of 608275.14 16 this Agreement. If any action or approval is required of any Party in furtherance of the rights under this Agreement, such approval shall not be unreasonably withheld. 5.17 Completion of Construction. The rights granted to Owner hereunder shall extend for the initial Term and any extension thereof. If any permit has been issued before the date of termination of the Term, the rights shall remain valid until the permit expires, but in no event longer than one year thereafter. 5.18 Lot Sale. It is the intention of the Parties that although recorded, this Agreement shall not create conditions or exceptions to title or covenants running with any individual lots into which the Property is subdivided. Any title insurer can rely on this section when issuing any commitment to insure title to any individual lot or when issuing a title insurance policy for any individual lot. So long as not prohibited by law, this Agreement shall automatically terminate as to any individual lot (and not in bulk), without the necessity of any notice, agreement or recording by or between the Parties, upon conveyance of the lot to a homebuyer by a recorded deed. For this section, "lot" shall be any lot upon which a home has been completely constructed that is contained in a recorded subdivision plat that has been approved by the Town. 5.19 Headings., Counterparts. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of any provision of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. Lev 5.20 Town Services. Town shall provide all Town services to the Property to the same extent and upon the same terms and conditions as those services are provided to other real properties in the Town, except as otherwise provided herein. 5.21 Force Majeure. The performance of either Party and the duration of this Agreement shall be extended by any causes that are extraordinary and beyond the control of the Party required to perform, such as, but not limited to, extreme changes in market conditions, a significant weather or geological event or other act of God, civil or military disturbance, labor or material shortage, or acts of terrorism. 5.22 Fair Interpretation. All Parties have been represented by counsel in the negotiation and drafting of this Agreement, and this Agreement shall be construed according to the fair meaning of its language. The rule of construction that ambiguities shall be resolved against the Party who drafted a provision shall not be employed in interpreting this Agreement. 5.23 Computation of Time. In computing any period of time under this Agreement the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so completed shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday or legal holiday. The time for performance of any obligation or taking any action under this Agreement shall be deemed to expire at 5:00 p.m. (Phoenix time) on the last day of the applicable time period provided herein. 608275.14 17 5.24 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 `tir vow Agreement, such amendment shall be recorded in the Official Records of Maricopa County. 5.25 Non-Discrimination. The Town shall comply with Executive Order 99-4 which mandates that all persons, regardless of race, color, religion, sex, age, national origin or political affiliation, shall have equal access to employment opportunities, and all other applicable State and Federal employment laws, rules, and regulations, including the Americans with Disabilities Act. 5.26 Arbitration. The parties agree to use arbitration to the extent required by ARIz. REV. STAT. § 12-1518. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. "Owner" "Town" STATE OF ARIZONA, by and through TOWN OF FOUNTAIN HIL an Arizona the Arizona Sta e L d Co i r municipal corporation Low By• : ark Winkleman W. J.Ni ols, Mayo State Land Commissioner ATTEST: evelyn J. B der own Clerk L 608275.14 18 (ACKNOWLEDGMENTS) vw STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) The foregoing instrument was acknowledged before me a 1 , 2006, by Mark Winkleman, Arizona State Land Commissioner, who knowledg that he signed the al-x-f-4-4- foregoing instrument on behalf of the State of Arizona. � _ej., Notary Public in and for the Stat of Arizona My commission expires: ►,,„ OFFICIAL SEAL tom,'. CAROL A. EWING '- ' ''`1 NOTARY PUBLIC-State of Arizona `i,�J�� �,r4• MARICOPA COUNTY My Comm.Expires Jan.28,2009 STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) The foregoing instrument was acknowledged before me 11 , 2006, by W. J. Nichols, Mayor of the TOWN OF FOUNTAIN HILLS wh acknowledged that he signed the foregoing instrument on behalf of the Town. /1 1( / ,. . . // ,,, ,.,., Notary Public in and for the State of Arizona My commission expires: ! f OFFICIAL SEAL '" + JANE E. ROBINSON i! Notary Public-Stat*of Arizona ‘' w td• MARICOPA COUNTY it `t,.,_ My oomrrl..tplrma Jan.28,2009 qc L 608275.14 19 EXHIBIT A ,.,.. TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Property Legal Description] See following pages. L L z co C4 2 .It2117, -_i O N Q C O. CO �♦1'� mV ENE 0 m y� „..2.9.5 te, Pe N fir• `�� u m f0 _ ' aP. m£�' . g, /�•rr}} ,(� �'{ " x I` rod ,�>.t Q N h,tt -�'%. ,a g 3'g.f __ ... w xcio-. CC j a s b 2 v, :t: � ...�.2„:,.„.,<,,,,,,„7.„,_::i,z, �•v m m`2.1 EC r1:5 ? w O ro m m , inempeet • O W - 4�� I I I S / a Q 6 7 g �ro� Ecap , t-' 3 ca , Z W o =\ o : M ;w: r r 1 J � _ ,r ( _ • - t�^ ''' a '- , E 3 lf�.; I} r fs* _1 S - i s Yf .c :I` - - J - i f 1 f s - - ` � f f3✓'_ � � fir • � r _ t = z r sit .T- a ;?` ,y, - ' r C{ a k L r ri i N I r ;-•i s r �it + � � , �. �r; � � �� T ••‘. < - ,--.. '•:' . - :.--,...-:; -"--.-..,F7-'-'.P-'?4',.:,::,,,V, 7. ,= .- St Yam/ nRS c �xi3K �° a k `K<: • -..J r- •- - . \ _ V'�"'.:d !`+'Sy '�' * -,12a� �'e 22; • '0 + gyp, ; a� % j �o r / ! -§0 ` i. s. 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Y '� ;n .s "'f F . �CO an►oar EXHIBIT B TO PRE-ANNEXATION DEVELOPMENT AGREEMENT [Map of Property] See following pages. og fliorme ATTACHMENT A Abe Town of Fountain Hills All State Trust land lying within the following described area: Section 1, T3N, R6E: Lots 9 through 11: 41.80 acres; Section 2, T3N, R6E: Lots 1 through 4, S2N2, S2: 637.52 acres; Section 3, T3N, R6E: Lots 1 through 4, S2N2, S2: 633.36 acres, Maricopa County; Total acreage: 1312.68 acres.