HomeMy WebLinkAboutRes 2012-09RESOLUTION NO. 2012-09
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN
HILLS AND AVENUE OF THE FOUNTAIN, LLC.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. The First Amendment to Development Agreement between the Town of
Fountain 1-1111s and Avenue of the Fountain, LLC, is hereby approved in the form attached hereto
as Exhibit A.
SECTION `'. 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,
April 5, 2012.
FOR THE TOWN OF FOUNTAIN HILLS:
e . Schlum, Mayor
. I�A�.O-aut
Kenneth W. I3ttchanan, Town Manager
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ATTESTED TO:
djj-
Bevelyn J. Be er, T wn Clerk
l
Andrew J. McGuire, Town Attorney
EXHIBIT A
TO
RESOLUTION NO. 2012-09
(First Amendment to Development Agreement)
See following pages.
1693872.1
0
When Recorded Return To:
Town Clerk
Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
FIRST AMENDMENT
TO
DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this "First
Amendment ") is entered into April 5, 2012, by and between the TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation (the "Town ") and AVENUE OF THE FOUNTAIN, LLC, an
Arizona limited liability company (the "Developer ").
RECITALS
A. The Town and the Developer entered into that certain Development Agreement
dated February 2, 2012, recorded at Document Number 2012 - 0144723 in the Official Records of
the Maricopa County Recorder's Office (the "Agreement "), relating to development of
approximately 4.76 acres of real property located at the southwest corner of Avenue of the
Fountains and Verde River Drive, Fountain Hills, Arizona (the "Property"). Unless otherwise
defined herein, all capitalized terms used in this First Amendment shall have the meanings set
forth in the Agreement.
B. The Agreement required that the Developer develop the Project on the Property in
accordance with the Schedule of Performance attached thereto as Exhibit E. The Developer has
requested, and the Town has agreed to grant, an amendment to the Agreement to extend the dates
for Developer's performance of several Project - related activities.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, the following mutual covenants and conditions, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and the
Developer hereby agree as follows:
1. Exhibit Replaced. The Agreement is hereby amended by deleting Exhibit E
thereto in its entirety and replacing it with a new Schedule of Performance in the form attached
hereto and incorporated herein by reference, which shall be inserted into the Agreement as
Exhibit E -1.
2. Consistency: Modification. Except as modified by this First Amendment, all of
the terms and conditions of the Agreement shall remain in full force and effect. This First
Amendment and the Agreement shall not be further modified in any manner other than by a
1693468.1
written amendment executed by the Town and the Developer or its successors or assigns. If any
clause, sentence or other portion of this First Amendment shall become illegal, null or void for
any reason, or shall be held by any court of competent jurisdiction to be so, the remaining
portions thereof shall remain in full force and effect.
3. Non - Default. By executing this First Amendment, Developer affirmatively
asserts that (i) the Town is not currently in default, nor has been in default at any time prior to
this First Amendment, under any of the terns or conditions of the Agreement and (ii) any and all
claims, known and unknown, relating to the Agreement and existing on or before the date of this
First Amendment are forever waived.
4. Successors and Assigns. This First Amendment shall be binding upon and inure
to the benefit of the successors and assigns of the respective parties.
5. Conflict of Interest. This First Amendment is subject to the provisions of ARIZ.
REV. STAT. § 38-511. The Town may cancel this First Amendment without penalty or further
obligations by the Town or any of its departments or agencies if any person significantly
involved in initiating, negotiating, securing, drafting or creating this agreement on behalf of the
Town or any of its departments or agencies is, at any time while the agreement or any extension
of the agreement is in effect, an employee of any other party to the agreement in any capacity or
a consultant to any other party of the agreement with respect to the subject matter of the
agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date
first set forth above.
"Town"
TOWN OF FOUNTAIN [-TILLS
an Arizona municipal corporation
By
av T chlum, iwlavor
ATTEST:
t �
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(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on 9 . 2012.
by Jay T. Sch1LCCT1, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal
corporation. on behalf of the Town of Fountain Hills.
JANiCE E BAXTER
I: No Public in the State of Arizona
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
1093.765 1
"Developer"
AVENUE OF THE FOUNTAIN, LLC
an Arizona limited liability company
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on 7 >za-t /_, -2 f 2012, by
George Kasnoff, Manager of AVENUE OF THE FOUNTAIN, LLC, an Arizona limited liability
company, on behalf of such limited liability company.
, BEVELYN J. BENDER
' state of kwo
WRICOPACOUM
(affix notary seal here)
1693468.1
Notary Pub in t State of Arizona
EXHIBIT E -1
TO
DEVELOPMENT AGREEMENT FOR THE AVENUE:
A TOWN CENTER PROJECT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
AVENUE OF THE FOUNTAIN, LLC
SCHEDULE OF PERFORMANCE
Deadline to Perform Task
From Effective Date of Agreement Task/Obligation
6 Months
Complete Acquisition of the Property
8 Months
Developer to have submitted Construction
Documents for Phase la Improvements,
including Public Improvements.
10 Months
Developer to have begun construction of Phase
I a Improvements.
18 Months
Developer to have completed construction of
Phase la Improvements. Developer to have
completed Public Improvements for Phase la.
18 Months
Developer to have submitted Construction
Documents for Phase I b Improvements,
including Public Improvements.
24 Months
Developer to have begun construction of Phase
1 b Improvements.
48 Months
Developer to have completed construction of
Phase lb Improvements. Developer to have
completed Public Improvements for Phase I b.
1693168.1