HomeMy WebLinkAboutRes 2010-27RESOLUTION NO. 2010 -27
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING AN AMENDMENT TO
VILLAGE BAZAAR SHARED PARKING AGREEMENT.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION I. The First Amendment to Village Bazaar Shared Parking Agreement by and
among by Pinciero, LLC, Plaza Waterfront Condominium Owners' Association, Inc., Plaza
Waterfront Condominium Sales, LLC, The Velma Shepherd Revocable Trust Dated March 10,
1994 and the Town of Fountain Hills (the "Amendment ") is hereby approved in the form
attached hereto as Exhibit A and incorporated herein by reference.
SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to cause the execution of the Amendment 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,
August 19, 2010.
FOR THE TOWN OF FOUNTAIN HILLS:
roc—
. Schlum, Mayor
REVIEWED BY:
2L4)0
Richard L. Davis, Town Manager
1324342.1
ATTESTED TO:
APPROVED AS TO FORM:
olgkuly
Andrew J. McGuire, Town Attorney
EXHIBIT A
TO
RESOLUTION NO. 2010-27
[First Amendment to Village Bazaar Shared Parking Agreement]
See following pages.
1324342.1
WHEN RECORDED, RETURN TO:
Bevelyn J. Bender, Town Clerk
Town of Fountain Hills
16705 E. Avenue of the Fountains
Fountain Hills, Arizona 85269
FIRST AMENDMENT TO
VILLAGE BAZAAR SHARED PARKING AGREEMENT
This FIRST AMENDMENT TO VILLAGE BAZAAR SHARED PARKING
AGREEMENT (this "First Amendment ") is entered into August 1 d'4- , 2010 (the
"Effective Date "), by and among PINCIERO, LLC, an Arizona limited liability company
( "Pinciero "), PLAZA WATERFRONT CONDOMINIUM OWNERS' ASSOCIATION, INC.,
an Arizona non - profit corporation ( "PWCOA "), PLAZA WATERFRONT CONDOMINIUM
SALES, LLC, an Arizona limited liability company ( "PWCS ") and THE VELMA SHEPHERD
REVOCABLE TRUST Dated March 10, 1994 ( "Shepherd ") (each of Pinciero, PWCOA, PWCS
and Shepherd shall also be collectively referred to as the "Developers ") and the TOWN OF
FOUNTAIN HILLS, an Arizona municipal corporation (the "Town ").
RECITALS
A. The Town and Victoria Properties, Inc., an Arizona corporation ( "Victoria ")
entered into that certain agreement entitled Village Bazaar Shared Parking Agreement, dated
April 6, 2000 (the "Original Agreement "), recorded as Document No. 2000 - 0414682 in the
Official Records of Maricopa County, for the purpose of establishing alternative parking
requirements for the commercial and residential development (the "Project ") located at the
northeast corner of Saguaro Boulevard and El Lago Boulevard in Fountain Hills, Arizona,
comprised of Lots 1 and 3 of the Plaza Fountainside subdivision and the Plaza Waterfront
Condominiums (the "Property ").
B. The Developers are the successors in interest, or the representatives of the
successors in interest, to Victoria.
C. Pinciero and Shepherd own Lots I and 3, respectively, of the Plaza Fountainside
subdivision portion of the Property.
D. PWCOA is the "Association" formed pursuant to the Condominium Declaration
for Plaza Waterfront Condominiums dated as of June 1, 2005, and recorded as Document No.
1322557.5
2005 - 1418392 in the Official Records of Maricopa County (the "Declaration ") and PWCS, doing
business under the trade name "Plaza Waterfront Condominium Development ", is the successor
"Declarant" of the Declaration and pursuant to the terms of the Declaration, PWCOA and PWCS
have the duty and authority to manage, on behalf of Plaza Fountainside Limited Partnership,
certain "Common Elements" that are subject to the Original Agreement.
E. Pursuant to Subsection 1.5 of the Original Agreement, the limitations set forth
therein related to the maximum amount of usable floor area for restaurant usage (6,000 square
feet) could be renegotiated between the Town and the Developer if, after the Project and adjacent
improvements to Fountain Park were completed, it could be shown that excess unutilized parking
existed.
F. The Project and the adjacent improvements to Fountain Park are now complete
and the Developer has submitted to the Town a parking study prepared by Carl Walker, Inc.,
dated June 2, 2010 (the "Parking Study ") which shows that excess parking exists.
G. The Town and Developer now wish to amend the Agreement to increase allowed
restaurant usage using existing excess parking identified in the Parking Study and to reflect the
completed nature of the Project and adjacent Fountain Park improvements.
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 are hereby acknowledged, the Town and the
Developers hereby agree to amend the Original Agreement as follows:
1. Expansion of Allowable Restaurant Space. Section 1.5 of the Agreement is
hereby deleted in its entirety and replaced with the following:
1.5 Commercial Space Usage and Parking. Notwithstanding any other
language or exhibits contained in this Agreement, the permitted distribution of
commercial uses in the Project shall not require more than 266 parking spaces, to
be calculated as follows: (A) the required number of parking spaces for office
and retail uses shall be one parking space per 250 square feet of gross leasable
space; and (B) the required number of parking spaces for restaurant uses shall be
one parking space per 50 square feet of usable floor area. Utilizing such
standards, the Project shall be entitled to calculate the parking requirements using
the shared parking model provided in Chapter 18 of the Town of Fountain Hills
Zoning Ordinance. Based on such shared parking calculation model, there shall
not be more than 9,000 square feet of "usable floor area" for restaurant use within
the Project, including the usable floor area of any patios actually established and
set aside for restaurant use.
2. Map Exhibits. Prior to issuance of a building permit for any proposed additional
restaurant improvements on the Property, Developers shall submit to the Town a map, in a form
1322557.5
2
acceptable to the Town, showing the areas allocated to existing retail and restaurant use and the
proposed additional restaurant use on the Property, including a calculation of the square footage
for each such space individually, and additionally in the aggregate with respect to the areas to be
devoted to restaurant uses.
3. Re- Establishment of Loading Zone. Developers shall, not later than 30 days after
the Effective Date and in any event prior to submittal of plans for restaurant expansion within the
Property, submit dimensioned plans to the Town with sufficient detail to clearly demonstrate the
steps Developers will take to make the necessary alterations to the pavement, curbs and
landscaping to re- establish the loading zone as depicted on Exhibit 1, attached hereto and
incorporated herein by reference (the "Loading Zone Improvements "). Additionally, Developers
shall provide the Town with sufficient evidence to ensure that the re- established loading zone
does not infringe upon the required fire lane for the Property. Developers shall commence
construction of the Loading Zone Improvements not later than 30 days after receipt of approval
to proceed from the Town Engineer or authorized designee, which Loading Zone Improvements
shall be completed according to the approved plans not later than 45 days after commencement.
4. Revised Notice Provisions. Section 4 of the Original Agreement, Notices and
Filings, is hereby deleted in its entirety and replaced with the following:
4. NOTICES AND FILINGS
4.1 Manner of Service. 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 or (C) given to a recognized and reputable overnight delivery service, to
the address set forth below:
To Developer: Pinciero, LLC
Attn: Dan Brink
10220 East Desert Cove Avenue
Scottsdale, AZ 85260
Plaza Waterfront Condominium Owners'
Association, Inc.
Attn: Arcadia Management Group, Inc.
P.O. Box 10
Scottsdale, AZ 85282
Plaza Waterfront Condominium Sales, LLC
c/o Arcadia Management Group, Inc.
Attn: Gary Shaw
P.O. Box 10
Scottsdale, AZ 85282
1322557.5
3
Velma Shepherd Revocable Trust
Attn: William Travis, Co- Trustee
5628 West Walnut Avenue
Visalia, CA 93277
To the Town: Town of Fountain Hills
Attn: Town Clerk
16705 E. Avenue of the Fountains
Fountain Hills, AZ 85268
With a Copy to: Andrew McGuire, Town Attorney
Gust Rosenfeld, P.L.C.
One East Washington, Suite 1600
Phoenix, Arizona 85004
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.
4.2 Mailing/Delivea Effective. Notices shall be deemed received (A)
when delivered to the party, (B) three business days after being placed in the U.S. Mail,
properly addressed, with sufficient postage or (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. 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. Effect of Amendment. In all other respects, the Original Agreement is hereby
affirmed and ratified and, except as expressly modified herein, all terms and conditions of the
Original Agreement shall remain in full force and effect.
6. Non - Default. By executing this First Amendment, the Developers affirmatively
assert that the Town is not currently in default, nor has been in default at any time prior to this
First Amendment, under any of the terms or conditions of the Original Agreement.
8. Conflict of Interest. This First Amendment may be cancelled by the Town
pursuant to ARiz. REV. STAT. § 38 -511.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
1 322557.5
4
IN WITNESS WHEREOF, the parties have executed this First Amendment as of the day
and year first written above.
TOWN:
TOWN OF FOUNTAIN HILLS,
an Arizona mumel I corporation
By:
Richard L. Davis, Town Manager
STATE OF ARIZONA )
) ss.
County of Maricopa )
ATTEST:
This instrument was acknowledged before me on 'Z $ , 2010,
by Richard L. Davis, the Town Manager of the TOWN OF�FOUNTAIN HILLS, an Arizona
municipal corporation, on behalf of the Town of Fountain Hills.
My Commission Expires:
JANICE E. BA7(TER
Novxv nueuc.eNacNn
rux¢oro ca°V,.0 s,mi2
we WEv
132255].5
�%
DEVELOPER: PINgEA,O, LLC, an Arizona limited liability
By:
Name:u' (•���
Title:
STATE OF ARIZONA )
ss.
County of Maricopa )
This' ent w cknowle d e me on , 20 t 0,
by O of
PIN CI O, LLC, an Arizona limited liability pany, by on behalf of a limi ed liability
company. v 7^
Notary
My Commission Expires:
NON- EXPIRING
COMMISSION Jane M. BOX eau
3009
SALMON ARM, Mo. V1E4R8
NOTARY PUSUC
PHONE (250) 832 -9319
192255'7.5
C
DEVELOPER: PLAZA WATERFRONT CONDOMINIUM
OWNERS' ASSOCIATION, INC., an
Arizona non-pp t� rat
it
r---
Na e: ours
itle:
PLAZA WATERFRONT CONDOMINIUM
SALES, LLC, an Arizona limited liability
company
By: --
_ Na !J dt�r -t c
Ti e•
ss.
TLhWj instrum nt was acknowledged before me on d , 2010,
by , the of PLAZA
WATE FRONT ,06NDOM4NIUM OWNERS' ASSOCIATION, INC., an Arizona non - profit
corporation, by and on behalf of the corporation.
Notary P c
My Commiss• n- Expire
John D. Jenkins
jjl./lr..• -' OF ) Banister. Solicitor & Notary Public
) ss. *2W 9906 -102 St.. Ft. Sask.. AB
ICJ (78019
rat: 91 -4200
�Cei+nt�•ef � 4" � �5
Thi 'nstrument was acknowledged before me on Ll� 4-*7 jj a 2010,
by t/l'I the Y%%T4 ss_ of PLAZA
WATEAFA614T NDOMP41UM SALES, LLC, an Arizona lim ted liability company, by
and on behalf of the limited liability company.
My CWmtsslo xptres:
_4
1322557.5
Notary P toc I
John D. Jenkins
Barrister. Solicitor & Notary Public
*200.9906.102 St.. Ft. Sask. AB
TK ICJ (790) 998.4200
DEVELOPER: VELMA SHEPHERD REVOCABLE TRUST
u/t/a Dated M ch J 0, 1994
By:l
William Travis, Co- Trustee
STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged before me on 2010,
by WILLIAM TRAVIS, the CO- TRUSTEE of THE VELMA SHEPHERD REVOCABLE
TRUST Dated March 10, 1994, by and on behalf of the trust.
Notary Public
My Commission Expires:
1322557.5
8
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of �� _� ('lip�� l% h
On c l before me, &tt C =W �N �U cj C)(J_)!se , Notary Public,
Date IIere Insen Name ofOfrrcer - I
Personally appeared
Namelsl of Sgnnlsl
Who proved to me on the basis of satisfactory evidence to
be the persons) -Whose name(s).As /arc subscribed to the
within instrument and acknowledged to me that he /sheftimy
executed the same in his /herhhutr authorized capacity(i")).
MICHELLE JEAN MOORE and that by his/hen4h6r signatur*) on the instrument the
vl, Commission # 1708478 persor�); or the entity upon behalf of which the person(s)-
a �`��
s Notary Public • California
_ " ^�acted, executed the instrument.
San Luis Obispo County
MV Comm. Qcac: 4, 2Q! Q
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature_ —z "
Nary P
I'bce Nry Sal Al.,c Signswe or Notary' Nbllt
OPTIONAL
Though the infomtation below is not required by lain, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another 4ocument.
Description of Attached Document
Title or Type of Document:
Document Date:
Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's name:
0 Individual
0 Corporate Officer —Tit le(s):
0 Partner— 0 Limited 0 General
0 Attorney in fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer is Representing:
Number of Pages:
Signer's name:
0 Individual
0 Corporate Officer — Title(s): _
0 Partner — 0 Limited 0 General
0 Attorney in fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer is Representing:
EXHIBIT 1
TO
FIRST AMENDMENT TO
VILLAGE BAZAAR SHARED PARKING AGREEMENT
[Loading Zone Depiction]
See following pages.
1332557.5
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PROPOSED LOADING ZONE
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