HomeMy WebLinkAboutRes 2008-38RESOLUTION NO. 2008-38
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING A DEVELOPMENT
AGREEMENT RELATING TO A MIXED -USE DEVELOPMENT OF
APPROXIMATELY 12.66 ACRES OF LAND GENERALLY LOCATED AT
THE INTERSECTION OF AVENUE OF THE FOUNTAINS AND VERDE
RIVER DRIVE.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. That the Development Agreement between the Town of Fountain Hills
and Fountain Hills Town Square, L.L.C., relating to the development of ± 12.66 acres of real
property, generally located at the intersection of Avenue of the Fountains and Verde River Drive
(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,
October 1, 2008.
C, FOR THE TOWN OF FOUNTAIN HILLS:
Jay chlum, Mayor
119 Dili I RIA D1 1
2 -04441e2
Richard L. Davis, Town Manager
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ATTESTED TO:
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AS TO FORM:
Town Attorney
EXHD31 T A
TO
RESOLUTION NO. 2008-38
[Agreement]
See following pages.
904331.1
WHEN RECORDED RETURN TO:
Town of Fountain Hills
Attn: Town Clerk
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
DEVELOPMENT AGREEMENT
FOR
FOUNTAIN HILLS TOWN SQUARE
A
TOWN CENTER PROJECT
TOWN OF FOUNTAIN HILLS, ARIZONA,
an Arizona municipal corporation
AND
FOUNTAIN HILLS TOWN SQUARE, LLC,
an Arizona limited liability company
October 2, 2008
806129.7
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE LLC
(Fountain Hills Town Square Downtown Project)
THIS DEVELOPMENT AGREEMENT (this "Agreement ") dated October 2, 2008, (the
"Effective Date ") is made and entered into by and between the TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation (the "Town ") and FOUNTAIN HILLS TOWN SQUARE
LLC, an Arizona limited liability company (the "Developer "). The Town and Developer are
sometimes referred to herein collectively as the "Parties," or individually as a "Party."
RECITALS
A. Developer has a real estate purchase contract for the acquisition of approximately
12.66 acres of that certain real property located at the southwest and southeast corners of Avenue
of the Fountains and Verde River Drive, Fountain Hills, Arizona, as more particularly described
and depicted on Exhibit A attached hereto and incorporated herein by this reference (the
"Property").
B. It is the Developer's intention to develop the Property as a horizontally and
vertically integrated mixed -use retail, commercial and residential project, including but not
limited to retail shopping areas, restaurants, offices, condominiums, theaters and related uses (the
"Project ").
C. The Town desires that the Property be developed as an integral part of the Town
Center area of Fountain Hills. 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 General Plan, (iii) an increase in sales tax revenues 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.
D. The Parties understand and acknowledge that the ultimate development of the
Project on the Property is a project of such magnitude that the Developer requires assurances
from the Town that the Developer will have the ability to complete the development of the
Project as contemplated by this Agreement. The Parties further understand and acknowledge
that the Town seeks assurances from the Developer that the Developer will complete the
acquisition of the Property and thereafter develop the Project on the Property in accordance with
the Land Use Plan attached hereto as Exhibit B and incorporated herein by reference (the "Land
Use Plan ") and in accordance with a Concept Plan to be prepared by the Developer consistent
with the Land Use Plan and submitted for approval by the Town's Planning and Zoning
Commission (the "Commission ") and the Mayor and Town Council of the Town of Fountain
Hills (the "Town Council "), as hereinafter provided in this Agreement.
806129.7
E. 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 proper development of the Property by providing for, among
other things (i) conditions, terms, restrictions and requirements for 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.
F. The Parties acknowledge that the Town, in furtherance of the Project and to
enable Developer to have sufficient assurance to expend the resources necessary to prepare and
submit for Town approval the Concept Plan in a form that meets the Town's Concept Plan
requirements, as set forth in the Zoning Ordinance, has undertaken and completed the processes
of amending the Town Center Commercial District ( "TCCD ") provisions of the Zoning
Ordinance and the rezoning of the Property to the TCCD designation.
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
agree as follows:
1. Incorporation of Recitals. The foregoing recitals are true and correct and
incorporated by this reference as if fully set forth herein.
2. Term and Effective Date. The Developer, its successors and assigns, shall have
the right to implement development on the Property in accordance with this Agreement for a
period of ten (10) years from the date this Agreement is approved by the Town Council, 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 "); provided, however, that
provisions of this Agreement that specifically survive the termination of this Agreement shall
remain in full force and effect, subject only to the termination provisions herein specifically
related thereto; provided further, however, that if Developer fails to completely fulfill any
portion of its obligations as set forth in Section 7 below by the deadline for performance
associated with each such obligation, this Agreement, and the Parking Easement (as defined
below) shall immediately terminate upon expiration of the applicable cure period without further
act by the Town Council. This Agreement shall become effective only upon approval by the
Town Council
3. Land Use Plan. Developer has previously submitted to the Town the Land Use
Plan attached hereto as Exhibit B. Developer acknowledges and agrees that such Land Use Plan
is not a "Concept Plan" as defined in the Town of Fountain Hills Zoning Ordinance (the "Zoning
Ordinance "), and not withstanding the Town Council's Approval of this Agreement, Developer
will be required to submit to the Commission for its approval a completed application for
approval of a Concept Plan prepared in accordance with the Concept Plan requirements set forth
in the Zoning Ordinance. The Concept Plan shall set forth the development standards, density,
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mix of uses and phasing for the Project that are consistent with the TCCD zoning category
provisions in the Zoning Ordinance and the Town's General Plan designations for the Property
(such completed application being hereinafter referred to as the "Concept Plan Application" and
the proposed Concept Plan contained therein being hereinafter referred to as the "Concept
Plan "), which Concept Plan Application may be approved or denied by the Commission in its
sole discretion. Developer further agrees that, due to the nature of this Project, the Concept Plan
shall be subject to additional review by the Town Council, which may approve or deny the
Concept Plan Application in its sole discretion. The Developer agrees and understands that it is
proceeding to prepare the documents necessary for the Concept Plan Application at its own risk,
and that the Developer may not rely upon this Agreement as any guarantee that the Commission
or the Town Council will approve the Concept Plan Application.
4. Town's Public Improvements. Subject to the limitations set forth below, the
Town agrees, at its sole cost, to reimburse the Developer the Public Improvement Costs (as
hereinafter defined) incurred by the Developer associated with the design, installation and
construction of those portions of the Town's planned improvements adjacent to the Property
located within the right -of -way of the Avenue of the Fountains (the "Town's Public
Improvements "). The Town's Public Improvements shall be consistent with and be an extension
of the streetscape improvements along the Avenue of the Fountains previously constructed by
the Town and shall generally consist of street, sidewalk, landscape, pedestrian lighting
improvements. The Town's Public Improvements shall also include those improvements to the
pedestrian connection lying on the southernmost portion of the Town's property between the
existing Community Center and the existing street edge of Paul Nordin Parkway as requested by
the Town in conjunction with Developer's construction of the adjacent parking area.
Developer's construction of the Town's Public Improvements may be in phases in accordance
with the Concept Plan as approved by the Town Council. For the purposes of this Agreement
"Public Improvement Costs" means all of the following, collectively: (i) all costs, expenses, fees
and charges actually incurred and paid by or on behalf of Developer to contractors, architects,
engineers, surveyors, governmental agencies and other third parties for materials, labor, design,
engineering, surveying, site excavation and preparation, governmental permits, payment and
performance bonds and (ii) and all other hard and soft costs and expenses actually incurred and
paid by or on behalf of Developer that are reasonably necessary for the design, construction and
installation of the Town's Public Improvements. The term "Public Improvement Costs" shall not
include any profit or mark -up by Developer or any affiliate of Developer, any losses whether or
not covered by insurance proceeds, any costs or expenses resulting from Developer's failure to
perform any of its obligations under this Agreement, or any other costs or expenses that are not
reasonably necessary for the design, construction and installation of the Town's Public
Improvements. It is further understood and agreed that the Town's obligation to reimburse the
Developer for the Public Improvement Costs is conditioned on the following:
a. Cost Estimate: Change Orders. Developer shall submit, at the time of
submittal for any infrastructure plans for work to be completed adjacent to the Town's Public
Improvements, complete plans and cost estimates for that portion of the Town's Public
Improvements to be completed concurrently therewith, including final construction quantities
and materials. After Town's approval of the plans and construction estimate, the Developer shall
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not cause or permit any change orders for the approved work in an amount greater than 10% of
the approved amount without the prior, written consent of the Town.
b. Dedication and Acceptance. Developer shall complete and dedicate the
Town's Public Improvements to the Town (or a particular phase thereof, as applicable in
accordance with the Town's procedures as outlined in subsection 7(K) of this Agreement.
C. Reimbursement by the Town. The Public Improvement Costs shall be
paid by the Town on a phase by phase basis. Within thirty (30) days after the Town's acceptance
of each phase of the Town's Public Improvements, Developer shall submit a claim to the Town
for the Public Improvement Costs associated with that phase. Such claim shall be due and
payable by the Town within thirty (30) days after the Town's receipt of such claim. Developer
agrees and understands that the Town may, pursuant to AR1z. REV. STAT. § 9- 500.11, appropriate
and spend public funds for and in connection with economic development activities and that the
Town's commitment to reimburse the Developer for the construction of the Town's Public
Improvements in this Section 4 is made in furtherance of economic development activities
associated with development of the Property. The Parties further agree that the Town shall pay
the Public Improvement Costs associated with the Town's Public Improvements up to the first
one million dollars ($1,000,000) thereof. The Developer shall be solely responsible for any
Public Improvement Costs after the first one million dollars ($1,000,000).
5. Use of Town Property.
a. Rights -of -way. If, in the sole discretion of the Town Council, and subject
to existing state and local laws and ordinances, the Town determines that it is necessary to
further economic development to make available for use by the Developer certain Town property
in conjunction with the Parking Easement (defined below) at no cost. Town also agrees to
provide, in favor of the Developer at no cost, all construction easements or approvals necessary
to construct public parking and other public improvements on other Town -owned property in
accordance with this Agreement; provided, however, that any public parking lot or public
improvements constructed thereon shall become the property of the Town upon acceptance
thereof as set forth below.
b. Parking. The Town hereby agrees to allow Developer to use certain
portions of the Town's open public parking located at the Civic Center on a no -fee, non-
exclusive, shared -use basis to provide additional parking for the theater multiplex planned as part
of Phase 1 of the Project, subject to and in accordance with the terms and conditions of the
reciprocal parking easement agreement attached hereto as Exhibit C and incorporated herein by
reference (the "Parking Easement "). The Parking Easement shall be executed and recorded by
the Parties concurrently with the execution and recordation of this Agreement. Except as
specifically set forth in Section 2 above, the Parking Easement shall survive the expiration of the
term of this Agreement, and shall thereafter be terminable only in accordance with the terms of
the Parking Easement. The Parties acknowledge and agree that, pursuant to Section 18.11 of the
Zoning Ordinance, the Walker Parking — ULI based, Shared Parking Model, developed by
Walker Parking (the Town parking consultant), will be utilized to determine the shared parking
806129.7
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demand for the Project and that the first three peer review fees associated with the use of this
alternate Shared Parking Model are not applicable to the Project.
6. Conditions to Town's Obligations. Without limiting the specific conditions to the
Town's obligations with respect to the Town's Public Improvements as set forth in Section 4
above, the Town shall not be required to take any action contemplated by this Agreement until
Developer has fully performed its obligations as set forth in subsections 7(a) - (h) below.
7. Developer's Obligations. Developer shall perform all of its duties as set forth in
this Section and according to the "Schedule of Performance" attached hereto as Exhibit D and
incorporated herein by reference. Developer's failure to timely perform its obligations as set forth below
shall constitute a breach of this Agreement and shall cause the immediate termination thereof as set forth
in Section 2 above.
a. Zoning Adherence and Performance. Developer agrees to develop the
Project in accordance with the TCCD zoning district and the Concept Plan, as reviewed and
approved or denied by the Commission in its sole discretion and then approved or denied by the
Town Council in its sole legislative discretion. Developer agrees to submit the completed
Concept Plan Application to the Town staff in sufficient time to ensure that the Town staff can
submit it to the Commission for its review and approval or denial not later than six (6) months
after the Effective Date.
b. Acquisition of the Property. Developer agrees to complete the acquisition
of the Property (close escrow and confirm ownership) for development of the Project not later
than six (6) months after the Effective Date.
C. Construction Documents. Developer shall prepare and submit to the
Town for the Town's review and approval, the construction documents for Phase 1 of the Project
(as shown on Exhibit B) in accordance with the Schedule of Performance and the Town Codes
and Ordinances.
d. Construction on Property. Developer shall submit complete Construction
Documents for Phase 1 of the Project, receive building permits for vertical construction on the
Property according to such construction documents and commence construction on the Property
of such vertical components of the Project not later than eighteen (18) months after the Effective
Date. For the purposes of this subsection, (i) "vertical construction" shall mean construction of
exterior walls of restaurant, retail, entertainment and office buildings on the Property and shall
also include adjacent horizontal hardscape, surface stabilization and all related activities and (ii)
"commencement of construction" shall mean the mobilization of sufficient construction
resources to the Property to complete Phase 1 of the Project according to the Schedule of
Performance and the Town's Codes and ordinances. Developer further agrees and acknowledges
that it shall not be permitted to begin physical construction on the Property until, and if, the
Town Council approves the Concept Plan Application.
e. Theater. Not later than thirty (30) days after the Effective Date, Developer
shall submit to the Town a fully executed, binding lease for a movie theater multiplex complex
containing not less than eight (8) theaters with a minimum lease period of ten (10) years and
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occupancy commencing not later than two (2) years from the Effective Date. Thereafter,
Developer shall construct, or cause to be constructed, the Theater as a portion of Phase 1 of the
Project, in accordance with the Schedule of Performance.
f. Developer's Art Walk. The Developer shall, at its sole cost and expense,
create a private art walk area on its property within the area on Developer's eastern-most parcel
called out as "Open Space" on the Land Use Plan. The Developer shall be solely responsible for
constructing the art walk in a manner that allows for spaces to display various artworks
throughout the Project. The Developer shall be responsible for purchasing artwork to be
displayed in the "Open Space" as set forth in the Zoning Ordinance. The Developer's art walk
area shall be open to public access and use during all times when businesses in the Project area
are open for business.
g. Building Permits. Developer shall secure all grading, building and
construction permits, which may be required by the Town and any other governmental agency
prior to starting any site grading or construction activities on the Property. Developer further
agrees and understands that no such permits will be issued prior to Town Council approval of the
Concept Plan Application.
h. Developer Public Improvements. Developer shall design, construct and
dedicate to the Town all public improvements associated with the Project (the "Developer's
Public Improvements ") and the Town's Public Improvements, subject to the reimbursement
provisions of Section 4 related to the Developer's construction of the Town's Public
Improvements. Developer's Public Improvements may be constructed in phases in accordance
with the Concept Plan as approved by the Town Council. The Parties further acknowledge that
the phasing and construction of Developer's Public Improvements will be in accordance with the
Schedule of Performance.
i. Phased Development. The Town acknowledges that Developer plans to
develop the Property in the phases generally set forth in Exhibit B, as more particularly described
in the Concept Plan as approved by the Town Council. The Town will review and approve the
public infrastructure needs of each phase (the "Infrastructure Improvements ") as part of its
approval of the construction documents of each phase. The Developer shall construct or cause to
be constructed and installed any and all portions of the Infrastructure Improvements including
the Town's Public Improvements, subject to the reimbursement provisions of Section 4. The
Town Engineer may require that the Developer construct portions of the Infrastructure
Improvements not directly related to the phase being constructed by the Developer if, in the
Town Engineer's sole discretion, he determines that the construction sequence requested by the
Developer will be detrimental to the Town or to the public.
j. Infrastructure Assurance. Prior to the commencement of construction of
any Infrastructure Improvements, the Developer shall provide appropriate assurances in such
form and amount as required by the Town Engineer to assure that the installation of
Infrastructure Improvements within the Property or other Infrastructure Improvements directly
related to such building permit or permits will be completed (the "Infrastructure Assurance ").
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k. Dedication and Acceptance. Upon completion by Developer of any
Infrastructure Improvements (including, but not limited to, the Town's Public Improvements) the
Developer shall promptly (i) notify the Town in writing of the presumptive completion of such
Infrastructure Improvements and (ii) dedicate to the Town, at no cost to the Town, such
Infrastructure Improvements free and clear of all liens and encumbrances and in accordance with
Town standards applicable to such dedication and acceptance. So long as such Infrastructure
Improvements are constructed in accordance with Town standards, as verified by the inspection
of the completed Infrastructure Improvements by the Town Engineer, all punch list items have
been completed and the Infrastructure Improvements are free of any liens and encumbrances, the
Town shall accept the Infrastructure Improvements. The Town shall notify the Developer, in
writing, of the Town's acceptance of the Infrastructure Improvements. Acceptance of any
Infrastructure Improvement is expressly conditioned upon Developer providing a warranty for
such Infrastructure Improvement consistent with Town standards and as provided in subsection
7(1) below. After acceptance of any Infrastructure Improvements (including, but not limited to,
the Town's Infrastructure Improvements), the Town thereafter shall maintain, repair and operate
such Infrastructure Improvements at its own cost, which obligation shall survive any termination
of this Agreement. Developer, at no cost to Town, shall dedicate, convey or obtain, as applicable
all rights -of -way, rights of entry, easements and/or other use rights, wherever located, as useful
or necessary for the operation and maintenance of the Infrastructure Improvements as required
by the Town.
1. Warranty. Developer or its assignee shall give to the Town a one -year
warranty for all Infrastructure Improvements or other such warranty as required by the Town
Engineer, which warranty shall begin on the date that the Town accepts the Infrastructure
Improvements as provided in this Section. Any material deficiencies in material or workmanship
identified by Town staff during the one -year warranty period shall be brought to the attention of
the Developer or its assignee that provided the warranty, which shall promptly remedy or cause
to be remedied such deficiencies to the reasonable satisfaction of the Town Engineer.
Continuing material deficiencies in a particular portion of the Infrastructure Improvements shall
be sufficient grounds for the Town to require (i) an extension of the warranty for an additional
one -year period and (ii) the proper repair of or the removal and reinstallation of, that portion of
the Infrastructure Improvements that is subject to such continuing deficiencies. Regardless of
whether the applicable warranty period has expired, the Developer agrees to repair any damage
to the Infrastructure Improvements caused by Developer's construction activities on the
Property. Nothing contained herein shall prevent the Town or Developer from seeking recourse
against any other third party for damage to the Infrastructure Improvements caused by such third
party.
m. Open Space. Developer shall include in its Concept Plan the central open
space on the Developer's Property as conceptually shown on the Land Use Plan (the "Open
Space "). As part of its development of the Project, Developer shall construct the Open Space as
an unfenced, ungated common area for the Project that is linked to the Town's pedestrian open
space and path system. The Open Space shall be made available for use by the public for
purposes of (i) pedestrian ingress and egress through the Town's open space and path system,
and (ii) such other private and public functions (including, but not limited to, events and social
functions) as may be invited and approved by the Developer. Such use by the public shall be in
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common with the use of Open Space by the owners, tenants, guests and invitees of the Project.
Notwithstanding any contrary provisions hereof, Developer shall have the right, in its sole
discretion, to create, impose and enforce regulations and rules of conduct for the use of the Open
Space by the public and/or by the owners, tenants, guests and invitees of the Project.
8. Development Fee Limitations. The Parties agree that the Developer shall pay all
Town review, permit and development fees associated with the residential development of the
Project. The Parties further agree that the Developer shall pay review, permit and development
fees associated with the commercial portions of the Project up to one million dollars
($1,000,000); the responsibility for any commercial review, permit and development fees in
excess of one million dollars ($1,000,000) shall be borne by the Town; provided, however, that
the one million dollar cap on such fees shall only extend for a period of five (5) years from the
Effective Date (such date is referred to herein as the "Cap Termination Date ") whether or not
Developer has reached one million dollars ($1,000,000) in aggregate fees for the commercial
portion of the Project. After the Cap Termination Date, the Developer shall pay the then -
applicable review, permit and development fees, without discount or cap.
9. Default. If either Party fails to perform any obligation, and such Party fails to
cure its nonperformance within thirty (30) days after notice of nonperformance is given by the
non - defaulting Party, such Party will be in default. In the event of such default, the non -
defaulting Party may terminate this Agreement and will have all remedies that are available to it
at law or in equity including, without limitation, the remedy of specific performance. If the
nature of the defaulting Party's nonperformance is such that it cannot reasonably be cured within
thirty (30) days, then the defaulting Party will have such additional periods of time as may be
reasonably necessary under the circumstances, provided the defaulting Party immediately
commences to cure its nonperformance and thereafter diligently continues to completion the cure
of its nonperformance. In no event shall any such cure period exceed sixty (60) days.
10. General.
a. 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. (i) delivered to the Party at the addresses set forth below; (ii) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below; (iii) given to
a recognized and reputable overnight delivery service, to the address set forth below: or (iv)
delivered by facsimile transmission to the number set forth below:
If to Town: Town of Fountain Hills
16705 East Avenue of the Fountains.
Fountain Hills, Arizona 85268
Facsimile: 480 - 837 -3145
Attn: Town Manager
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With a copy to: GUST ROSENFELD, P.L.C.
201 East Washington, Suite 800
Phoenix, Arizona 85004 -2327
Facsimile: 602 - 340 -1538
Attn: Andrew J. McGuire, Esq.
If to Developer: Kasnoff Realty & Investments
13014 North Saguaro Boulevard, Suite 204
Fountain Hills, Arizona 85268
Facsimile: 480 - 816 -3206
Attn: George Kasnoff
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: (i) when delivered to the Party; (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage; (iii) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day; or
(iv) when received by facsimile transmission during the normal business hours of the recipient.
If a copy of a notice is also given to a Party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a Party shall mean and
refer to the date on which the Party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
b. Amendment. No amendment or waiver of any provision in this
Agreement will be binding (i) on the Town unless and until it has been approved by the Town
Council and has become effective or (ii) on Developer unless and until it has been executed by
an authorized representative.
C. Headings. The headings herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope or intent of this
document nor in any way affect the terms and provisions hereof.
d. Time of the Essence. Time is of the essence with regard to performance
under the terms and provisions of this Agreement, and any amendment, modification or revision
thereof, with respect to the actions and obligations of each person bound by the terms hereof.
e. Attorney's Fees. If either Party commences an action against the other to
interpret or enforce any of the terms of this Agreement or because of the breach by the other
Party of any of the terms hereof, the losing Party shall pay to the prevailing Party reasonable
attorney's fees, costs and expenses, including expert witness fees, incurred in connection with
the prosecution or defense of such action. For the purpose of this Agreement, the terms
"attorney's fees, costs and expenses" shall mean the fees and expenses of counsel to the Parties
hereto, which may include printing, duplicating and other expenses, air freight charges, and fees
billed for law clerks, paralegals, librarians and others not admitted to the bar but performing
services under the supervision of an attorney. The term "attorneys' fees, costs and expenses"
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shall also include, without limitation, all such fees and expenses incurred with respect to appeals,
arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought
with respect to the matter for which said fees and expenses were incurred.
f. Recordation. This Agreement shall be recorded in its entirety in the
Maricopa County Recorder's Office not later than ten (10) days after it is fully executed by the
Developer and the Town.
g. Choice of Law, Venue and Attorneys' Fees. The laws of the State of
Arizona shall govern any dispute, controversy, claim or cause of action arising out of or related
to this Agreement. The venue for any such dispute shall be Maricopa County, Arizona, and each
Party waives the right to object to venue in Maricopa County for any reason. Neither Party shall
be entitled to recover any of its attorneys' fees or other costs from the other Party incurred in any
such dispute, controversy, claim, or cause of action, but each Party shall bear its own attorneys'
fees and costs, whether the same is resolved through arbitration, litigation in a court, or
otherwise.
h. Good Standing, Authority. Each Party represents and warrants that it is
duly formed and validly existing under the laws of the State of Arizona with respect to
Developer, or a municipal corporation within Arizona with respect to the Town and that the
individuals executing this Agreement on behalf of their respective Party are authorized and
empowered to bind the Party on whose behalf each such individual is signing.
i. Assignment. 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.
j. Third Parties. No term or provision of this Agreement is intended to, or
shall be for the benefit of any person or entity not a Party hereto, and no such other person or
entity shall have any right or cause of action hereunder.
k. No Partnership. None of the terms or provisions of this Agreement shall
be deemed to create a partnership between or among the Parties hereto in their respective
businesses or otherwise, nor shall it cause them to be considered joint ventures or members of
any joint enterprise. Each Party hereto shall be considered a separate owner, and no Party hereto
shall have the right to act as an agent for another Party hereto, unless expressly authorized to do
so herein or by separate written instrument signed by the Party to be charged.
1. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver of any breach shall be construed as a waiver of any preceding or
succeeding breach of the same or any other covenant, or condition of this Agreement. No waiver
shall be effective unless it is in writing and is signed by the Party asserted to have granted such
waiver.
M. Further Documentation. The Parties agree in good faith to execute such
further or additional instruments and documents and to take such further acts as may be
necessary or appropriate to fully carry out the intent and purpose of this Agreement.
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n. Fair Interpretation. The 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.
o. Headings: References. 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.
Any references in this Agreement to a "section" or a "subsection" shall include all subsections
and paragraphs thereof.
P. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original but all of which shall constitute one and the same instrument.
q. 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 date 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.
r. Conflict of Interest. Pursuant to AKiz. REV. STAT. § 38 -503 and § 38 -511,
no member, 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 the terms of ARiz. REV. STAT. § 38 -511.
S. Severability. Every provision of this Agreement is and will be construed
to be a separate and independent covenant. If any provision in this Agreement or the application
of the same is, to any extent, found to be invalid or unenforceable, the remainder of this
Agreement or the application of that provision to circumstances other than those to which it is
invalid or unenforceable will not be affected by that invalidity or unenforceability. Each
provision in this Agreement will be valid and will be enforced to the extent permitted by law and
the Parties will negotiate in good faith for such amendments of this Agreement as may be
necessary to achieve its intent, notwithstanding such invalidity or unenforceability.
t. Covenant of Good Faith. In exercising their rights and in performing their
obligations pursuant to this Agreement, the Parties will cooperate with one another in good faith
to ensure the intent of this Agreement can be attained.
U. Estoppel Certificate. Upon Developer's written request, the Town will
execute, acknowledge and deliver to Developer and all parties identified by Developer, including
without limitation assignees, transferees, tenants, purchasers, investors, lenders, and mortgagees,
a written statement certifying (i) that this Agreement is unmodified and in full force and effect
806129.7
(or, if there have been modifications , that this Agreement is in full force and effect, as modified,
and stating modifications) and (ii) whether there are any existing breaches or defaults by
Developer then known to the Town under this Agreement, and if so, specifying the same. The
Town will deliver the statement to Developer or such requesting party within fifteen (15) days
after request. The Town acknowledges that any such assignee, transferee, tenant, purchaser,
investor, lender, or mortgagee may rely upon such statement as true and correct.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
"Developer"
FOUNTAIN HILLS TOWN SQUARE, LLC
an Arizona limited liability company
806129.7
12
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Jay T. Schlum, Mayor
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENTS)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on 16 , 2008, by
George Kasnoff, Manager of FOUNTAIN HILLS TOWN SQUARE, LLC, an Arizona limited
liability company, on behalf of such limited liability company.
is in the State of Arizona
My Commission Expires: — OFFICIALSWY- ER
JANICE E. BA TE
Naary pubrC
AMRICOPA COUNTY
my Comm. oVim ow. 5.2009
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 2008, by Jay T.
Schlum, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on
behalf of the Town of Fountain Hills.
Notary Public in the State of Arizona
My Commission Expires:
806129.7
13
EXHIBIT A
TO
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE LLC
(Fountain Hills Town Square Downtown Project)
[Legal Description of Property]
See following pages.
806129.7
EXHIBIT "A"
TO
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE, LLC
Property Legal Description
Parcel No. 1:
Lots 1, 2,3 and 5, A FINAL REPLAT OF BLOCK 7, PLAT NO. 208, FOUNTAIN
HILLS, ARIZONA, according to Book 615 of Maps, page 49, records of Maricopa
County, Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
Except all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals,
fossils and fertilizers of every name and description, together with all uranium, thorium,
or other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
Parcel No. 2:
Lots 1, A FINAL REPLAT OF BLOCK 2, PLAT NO. 208, FOUNTAIN HILLS,
ARIZONA, according to Book 615 of Maps, page 48, records of Maricopa County,
Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
Except all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals,
fossils and fertilizers of every name and description, together with all uranium, thorium,
or other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
EXHIBIT B
TO
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE LLC
(Fountain Hills Town Square Downtown Project)
[Land Use Plan]
See following pages.
806129.7
Exhibit "B"
LAND USE PLAN - 9.17.08
Development Agreement Between the Town of Fountain Hills and Fountain Hill Town Square, LLC
_ Fountain Hills Town: Square. - Conce . t -aL Master
Development Plan
Sheriffs Office
Total
Restaurant
3,008
Community
31,115
Project
Retail
Total
86,016
BUILDING & PLANNED USE
S . Ft.
Entertainment
Residential
Office
; ..459,603
206,571145%
211
21
315
212
213
100
469
.199,422143%
1541
53,610
120A
ase
9,301
41
0
901931_1.XLS
15,106
B - Ground Floor Retail, Two Levels of Office Above
C - Ground Floor Retail, Two Levels of Office or Condos Above
M - Ground Floor Retail
18,741
4,750
3,000
25,778
N - Ground Floor Retail
4,750
Q -12 Plex of Theaters Spaces
45,000
Phase 1 Parking 425
Phase 1 Totals 126,426
82,542
65%
3,000
2%
40,884
32%
Phase 2
6,645
10,328
F - Ground Floor Retail, Two Levels of Condos Above
R - Ground Floor Retail, One Level of Office Above
6,726
6,726
G - Ground Floor Retail / Restaurant, One Level of Office Above
6,000
6,000
H - Ground Floor Restaurant, One Level of Nightclub Above
8,500
U -169 Underground parking spaces for Buildings F,R,G & H Spaces
Phase 2 Parkin 187
Phase 2 Totals 50,925
27,871
55%
10,328
20%
12,726
25%
P ase 3
9,000
D - Two Story Restaurant
E - Ground Floor Retail, Two Levels of Condos Above
29.126
31,632
K - Ground Floor Retail, Two Levels of Condos Above
23,642
28,284
0
L - Ground Floor Retail, Two Levels of Condos Above
18,290
23,756
U -191 Undergound parking spaces for Buildings D,E,K & L S aces
Phase 3 Parkingi 191
Phase 3 Tatalsi 163,730
80,058
49%
83,672
51%
0
0%
Phase
11,400
30,404
A - Ground Floor Retail (partial), Two Levels of Condos Above
J - Ground Floor Retail (partial), Two Levels of Condos Above
4,700
72,018
0
U -109 Undergound parking spaces for Buildings A & J Spaces
Phase 4 Parking 191
Phase 4 Totals 118,522
16,100
14%
102,422
86%
0
0%
All Phases Totals
459,603
206,571
45%
199,422
43%
53,610
12 %e
Town Hall
26,823
Sheriffs Office
4,475
Court Offices
3,008
Community
31,115
Library
20,595
Total
86,016
Units 127
Avg.SF. 1,570
Density -DU /Ac 10.0
FOUNTAIN HILLS PARKING REQUIREMENTS
WALKER
PARKING
Unadjusted Demand (Fountain Hills Standard Ordinance)
Unadjusted Demand (Walker - ULI Model)
Total Shared Parking Recommended by Walker - ULI Model
Percentage Reduction from Unadjusted Demand
Daytime
Spaces
Nighttime
Spaces
2235
2162
2248
a--37%
528
32%
PROJECT PARKING PROVIDED
Existing Adjacent Street Parking (Town Square Project
Existing Adjacent Street Parking (Parallel south side of Paul Norton Dr.
Existing Adjacent Town Hall Parkin
New Surface Parking Adjacent to Theatre (Project Constructed on Project Land)
New Surface Parking Adjacent to Theatre (Project Constructed on Town Land)
New Surface Parking Adjacent to and below buildings A & J (Project Constructed)
Now Under Ground Parking Structure (Under bldgs. A, E, J. K & L )
Total Parking Provided
211
21
315
212
213
100
469
211
21
315
212
213
100
469
1541
1541
Excess (shortage) Shared Parking Recommended by Walker - ULI Model
91 .
13'
Excess (shortage) Shared Puking Recommended by Walker - ULI Model using Fountain Hies Ordtnanco Re
41
-55
901931_1.XLS
Page 1
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NORTH SCALE
EXHIBIT C
TO
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE LLC
(Fountain Hills Town Square Downtown Project)
[Reciprocal Parking Agreement]
See following pages.
806129.7
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Town of Fountain Hills
16705 E. Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Town Clerk
RECIPROCAL PARKING EASEMENT AGREEMENT
THIS RECIPROCAL PARKING EASEMENT AGREEMENT (this "Agreement ") is
entered into , 2008, by and between FOUNTAIN HILLS TOWN SQUARE,
LLC., an Arizona limited liability company ( "Developer ") and the TOWN OF FOUNTAIN
HILLS, an Arizona municipal corporation (the "Town "). The Town and Developer are
sometimes referred to herein collectively as the "Parties," or individually as a "Party."
RECITALS
A. Developer is under contract to purchase approximately 12.66 acres of that certain
real property located at the intersection of Avenue of the Fountains and Verde River Drive in
Fountain Hills, Arizona, as more particularly described in Exhibit 1 attached hereto and
incorporated herein by reference (the "Developer Parcels "). Developer intends to construct a
mixed -use development project (the "Project "), including the construction of a multiplex movie
theater complex (the "Theater Complex ") and a retail and office complex (the "Retail
Complex "), on the Developer Parcels in substantially the form as set forth on the Land Use Plan
attached as Exhibit B (the "Land Use Plan ") to that certain Development Agreement of equal
date hereof between the Town and Developer (the "Development Agreement ").
B. Town is the owner of that certain real property located at the southeast corner of
Avenue of the Fountains and La Montana Drive in Fountain Hills, Arizona, more particularly
described in Exhibit 2 attached hereto and incorporated herein by reference (the "Town
Parcels "). A portion of the Town Parcels are currently utilized for surface parking (the "Town's
Parking Use ") as shown on the Town's site plan (the "Town Site Plan ") attached hereto as
Exhibit 3 and incorporated herein by reference.
C. The Developer Parcels and the Town Parcels are contiguous to one another, and
are hereinafter sometimes collectively referred to as the "Parcels" or individually as a "Parcel."
D. Developer desires to grant to Town and its successors and assigns a nonexclusive
easement for ingress, egress, parking and pedestrian access on, over and across the area of land
within the Developer Parcels shown on Exhibit 4, attached hereto and incorporated herein by
reference (the "Developer Parking Easement Area "), which at all times shall contain parking
available to the general public, except for 63 reserved spaces for commercial business in the
Project and 254 reserved spaces in the underground parking garage for owners of residential
units in the Project.
401416.1
E. Town desires to grant to Developer and its successors and assigns a nonexclusive
easement for ingress, egress, parking and pedestrian access on, over and across the area of land
within the Town Parcels shown on Exhibit 5, attached hereto and incorporated herein by
reference, which shall at all times contain at least 528 parking spaces therein (the "Town Parking
Easement Area "), except for 83 spaces reserved for Town use. The Town agrees to grant to
Developer a temporary construction easement over, on and across that portion of the Town
Parking Easement Area that the Town Public Works Director deems, in his sole discretion, to be
necessary for the purpose of constructing the Developer Improvements (as defined below). Prior
to utilizing the Town Parking Easement Area, Developer shall, at its sole cost and expense,
design and construct paved parking facilities on the currently unpaved portion of the Town
Parking Easement Area and the currently unpaved portions of the Developer Parking Easement
Area (i) in accordance with Town codes, ordinances and regulations and (ii) consistent with the
quality of the parking facilities existing on the Town Civic Center. The aforementioned parking
facilities are collectively hereinafter referred to as the "Developer Improvements."
F. The Developer Parking Easement Area and the Town Parking Easement Area are
hereinafter sometimes individually referred to as an "Easement Area" and collectively as the
"Easement Areas." Each party acknowledges that the Easement Areas may be relocated
pursuant to Section 3 of this Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein,
the parties agree as follows.
1. Covenants. Developer and Town hereby declare and agree that the Developer
Parcels and the Town Parcels are, or will be, upon closing of the Developer's purchase of the
Developer Parcels, owned, held, conveyed, transferred, divided, sold, leased, rented,
encumbered, developed, improved, occupied and used subject to the easements established in
this Agreement, each and all of which are imposed upon and against the Parcels as mutual
beneficial and equitable servitudes in favor of the mutual use and benefit of the Parcels,
Developer, Town, their successors and assigns and all subsequent owners and lessees of the
Parcels, and any portions thereof, and their respective heirs, successors, representatives and
assigns, and are hereby expressly declared to be binding upon the Parcels, and any portions
thereof, and shall run with the land and each and every part thereof, inure to the benefit of and be
a burden upon the Parcels, and any portions thereof, and shall bind the respective heirs,
successors and assigns of the Parcels, or any portions thereof.
2. Reciprocal Easements. Each Party ( "Granting Party") hereto expressly grants to
the other (the "Benefited Party ") and to its successors and assigns, for the benefit of the
Benefited Party's Parcel, a non - exclusive and perpetual right and easement for ingress, egress,
parking and pedestrian access on, over and across the Easement Area on the Granting Party's
Parcel (each referred to herein as an "Easement "). Notwithstanding anything in this Agreement
to the contrary, Developer hereby agrees that the Town shall have the right to temporary
exclusive use of that portion of the Town Parking Easement Area located between the Town Hall
and the Town Community Center for certain Town events (i.e. paper shredding event) and
private events in the area of Town Hall (i.e. The Great Fair) to ensure that the Town may carry
out its governmental functions.
401446.1
2
3. Relocation of Easements. The Town may relocate the Town Parking Easement
Area and Developer may relocate the Developer Parking Easement Area only as set forth, and
subject to the conditions of, this Section 3, but in no event shall Developer be permitted to
relocate the Developer Parking Easement Area at any time while the Theater Complex is in
operation as a movie theater. In the event that either Granting Party desires or finds it necessary
from time to time to voluntary or involuntarily relocate its respective Easement Area, such
relocated Easement Area (a) must not be located more than six hundred (600) feet from the
boundary of the Benefited Party's Parcel, (b) must provide an amount of parking greater than or
equal to the existing Easement Area that is being relocated and (c) must not be in a configuration
or location that will materially interfere with the Benefited Party's use of the respective
Easement Area. The Granting Party must provide at least sixty (60) days prior, written notice of
such relocation. If such relocation is reasonably anticipated to materially interfere with the
Benefited Party's use of the Easement Area for its intended purpose, the Benefited Party will
have the right to require the Granting Party to provide, at its sole cost and expense, a reasonably
acceptable alternative facility for the Benefited Party's interim use, prior to the commencement
and completion of any such relocation. The failure of the Benefited Party to require such
alternate facility within such sixty (60) day period shall be deemed the Benefited Party's
approval of the relocation of the Easement Area.
4. Effective Date: Termination of the Agreement.
a. Effective Date. Notwithstanding any other provisions of this Agreement
to the contrary, the Easements granted pursuant to this Agreement shall become effective only
upon (i) Developer's (or its assignee's) close of escrow and confirmation of ownership of the
Developer Parcels by no later than six (6) months after the date first set forth above, (ii) the
Developer's submittal of a completed Concept Plan Application (as defined in the Development
Agreement) to the Town staff in sufficient time to allow for review and modifications such that
the Concept Plan may be reviewed and approved or denied by the Town's Planning and Zoning
Commission (the "Commission ") and transmitted to the Mayor and Town Council of the Town
of Fountain Hills (the "Town Council ") for its approval or denial no later than six (6) months
after the date first set forth above, (iii) the completion of construction of (as evidenced by a
certificate of occupancy issued by the Town) and the opening for business of the Theater
Complex as set forth on the approved Concept Plan and (iv) the completion of Phase 1 of the
Developer Improvements, dedication of the Phase 1 of the Developer Improvements to the Town
and acceptance of Phase 1 of the Developer Improvements by the Town.
b. Town Obligation to Accept Developer Improvements. The Town will be
obligated to accept the Developer Improvements and the dedication thereof in accordance with
the Development Agreement.
C. Termination of the Agreement. In addition to termination pursuant to
Section 2 of the Development Agreement, this Agreement shall be null and void, both Parties
obligations hereunder shall be extinguished, and this Agreement shall terminate without further
action of either Party if Developer fails to satisfy any of the following conditions, and thereafter
fails to cure such failure within thirty (30) days after notice of nonperformance is given by the
Town: (i) Developer shall have commenced construction of the Developer Improvements related
to Phase I of the Project (shown on Exhibit B to the Development Agreement), and Developer
401446.1
3
shall have commenced construction of the Theater Complex as depicted on the Concept Plan
approved by the Town Council pursuant to the Concept Plan Application, by the date that is one
(1) year from the date first set forth above or (ii) Developer shall have completed construction
(as evidenced by a certificate of occupancy issued by the Town) of the Theater Complex within
two (2) years from the date first set forth above and (iii) Developer shall have completed
construction of the Developer Improvements related to Phase I of the Project (shown on Exhibit
B to the Development Agreement) and the Developer Improvements related to Phase I of the
Project shall have dedicated to and accepted by the Town within two (2) years from the date first
set forth above; provided, however, that all deadlines set forth in the preceding items, (i), (ii) and
(iii) each such deadline being hereinafter referred to as a "Developer Performance Deadline"
shall be subject to extension due to "Force Majeure." The term "Force Majeure" means strikes,
lockouts, labor disputes, acts of God, inclement weather, inability to obtain labor or materials or
reasonable substitutes therefore, governmental restrictions, regulations, controls or delays,
enemy or hostile government action, general emergency condition, civil commotion, fire or other
casualty or any other cause beyond the reasonable control of Developer. If a Force Majeure
event directly impacts Developer's ability to commence or complete construction of the
Developer Improvements or the Theater Complex prior to the applicable Developer Performance
Deadline as set forth above in subsection 4 (c), then the Developer Performance Deadlines
impacted by such Force Majeure event shall be extended only for such additional time as the
Force Majeure event is directly impacting the commencement and completion of the Developer
Improvements (and/or the Theater Complex, as applicable); provided, however, that no such
time extensions shall be allowed unless Developer notifies the Town of any Force Majeure
events not later than seven (7) days after Developer knew, or should have known, of the
existence of such Force Majeure event.
5. Termination of the Easements. Notwithstanding any other provisions of this
Agreement to the contrary, the Parties hereto agree that the Easements granted herein shall
terminate, in whole or in part as set forth below in this Section 5, at such time as the Theater
Complex use ceases on the Developer Parcels for a period in excess of one hundred eighty (180)
consecutive days. The Easements shall fully terminate and neither Party shall have any further
rights or obligations herein if Developer fails to do any of the following: (a) if the Theater
Complex is damaged to an extent that causes it to be closed to the general public for business,
Developer shall (i) give notice to the Town, not later than thirty (30) days from the last date the
Theater Complex was utilized as a movie theater (the "Theater Closing Date "), of its intent to
repair the Theater Complex and reopen it to the general public for business within two hundred
seventy (270) consecutive days from the Theater Closing Date and (ii) complete all necessary
repairs to the Theater Complex and reopen it to the general public for business within two
hundred seventy (270) consecutive days from the Theater Closing Date; or (b) if the Theater
Complex is closed to the general public for business for any reason not involving damage to the
Theater Complex, Developer shall (i) give notice to the Town not later than sixty (60)
consecutive days from the Theater Closing Date of its intentions to retrofit the Theater Complex
for use as retail commercial space, (ii) cause such alterations and improvements to the Theater
Complex as necessary for its reuse as retail commercial space within three hundred sixty-five
(365) consecutive days of the Theater Closing Date and (iii) execute leases for the occupancy of
not less than 75% of the former Theater Complex space to "Retail Commercial Users" (such
Retail Commercial Users being defined herein as businesses which, by their nature, generate
transaction privilege taxes to the Town), with leases commencing not later than three hundred
sixty-five (365) consecutive days from the Theater Closing Date. In the event that Developer
901446.1
4
meets all of the terms and conditions set forth in clauses (a) (i) — (ii) above in this Section 5, this
Agreement shall remain in full force and effect. In the event that Developer meets all of the
terms and conditions set forth in clauses (b) (i) — (iii) above in this Section 5, this Agreement
shall remain in full force and effect, except that the Town Easement Area shall be modified to
that area necessary to provide parking for the Retail Commercial Users in accordance with the
shared parking model approved in conjunction with the Concept Plan. If the Easements granted
herein terminate for any reason set forth in this Agreement, the Parties agree to execute all
necessary documents to remove the encumbrance of this Agreement from the title to the Parcels.
6. Maintenance. Each of the Parties hereto agrees to repair and maintain the
Easement Area located on its respective Parcel, including lighting, pavement, striping and
planters, in good condition and repair for the benefit of itself and the Benefited Party. In no
event will either Party or their respective tenants, guests or invitees be charged for parking on an
Easement Area on either Parcel; as further clarification and in no way limiting the broad rights of
access by the public to use of the Easement Areas granted in this Agreement, the Developer
Parking Easement Area shall at all times be available for free public parking as well as free
public use during all special events such as the Great Fair.
7. Taxes. Each of the Parties hereto agree to pay or cause to be paid, prior to
delinquency, directly to the appropriate taxing jurisdiction all real property taxes and
assessments which are levied against the Easement Area located within their respective Parcels.
8. Indemnification. Each of the Parties hereto, and their successors and assigns,
shall, to the extent permitted by law, indemnify, defend and hold the other Party harmless for,
from and against any and all liability, damage, expense, causes of action, suits, claims or
judgments including attorney's fees and costs, arising from personal injury, death or property
damage and occurring on its own Parcel, unless caused by the willful misconduct or gross
negligence of the Party indemnified hereby. The provisions of this Section will survive for a
period of one (1) year following the termination of this Agreement.
9. Insurance. Each of the Parties shall, at their sole cost and expense, carry
commercial general liability insurance, naming the other Party as additional insured, covering
injury, death, disability or illness of any person, or damage to property, occurring in, on or about
its Parcel, with liability limits not less than Two Million Dollars ($2,000,000). The policies of
insurance provided herein shall be issued by insurance companies qualified to do business in the
State of Arizona and reasonably acceptable to the Parties. Each such insurance company shall
have a rating of at least A, Class IX in Best's Key Rating Guide. Copies of the insurance
policies that each Party if required to carry hereunder, shall be delivered to the other Party within
five (5) days after the date on which this Agreement is recorded. The policies of insurance must
contain a provision that the company writing said policy will give to the other Party thirty (30)
days' notice in writing of any modification, cancellation or lapse of effective date of any
reduction in the amount of insurance. Not more frequently than every five (5) years, if, in the
opinion of either Party the amount of the commercial general liability insurance coverage at that
time is not adequate, the Parties shall meet and discuss additional insurance as may be reasonable
for comparable facilities in the greater metropolitan Phoenix area.
901 346.1
5
10. Mutual Release/Waiver of Subrogation. Each of the Parties hereby release the
other from any and all liability or responsibility for any loss, injury or damage to their respective
Parcels, caused by any fire or other casualty or accident during the term of this Agreement.
Inasmuch as the above mutual waivers will preclude the assignment of any aforesaid claim by
way of subrogation (or otherwise) to an insurance company (or any other person), each Party
hereto hereby agrees if required by said policies to give to each insurance company which has
issued to it policies of insurance written notice of the terms of said mutual waivers, and to have
said insurance policies properly endorsed, if necessary, to prevent the invalidation of said
insurance coverage by reason of said waivers.
11. Eminent Domain.
a. Owner's Right to Award. Nothing herein shall be construed to give any
Party hereto any interest in any award or payment made to the other Party hereto in connection
with any exercise of eminent domain or transfer in lieu thereof affecting said other Party's Parcel
or giving the public or any government any rights in said Parcel. In the event of any exercise of
eminent domain or transfer in lieu thereof of any part of an Easement Area, the award
attributable to the land and improvements of such portion of the Easement Areas shall be payable
only to the owner of the Parcel on which that portion of the Easement Area is located, and no
claim thereon shall be made by the owners of any other portion of the Easement Areas.
b. Collateral Claims. Each of the Parties hereto may file collateral claims
with the condemning authority for their losses which are separate and apart from the value of the
land area and improvements taken from the other owner.
C. Restoration. The owner of any portion of the Easement Areas lost as a
result of condemnation shall promptly repair and restore the remaining portion of the Easement
Areas as nearly as practicable to the condition of the same immediately prior to such
condemnation or transfer, to the extent that the proceeds of such award are sufficient to pay the
cost of such restoration and repair and without contribution from any other owner.
12. 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, even if such delivery is refused
by the Party, (b) given to a recognized and reputable overnight delivery service, to the address
set forth below or (c) delivered by facsimile transmission to the number set forth below:
If to Developer: Fountain Hills Town Square, LLC
13014 North Saguaro Boulevard, Suite 204
Fountain Hills, Arizona 85268
Facsimile: 480 - 816 -3206
Attn: George Kasnoff
If to Town: Town of Fountain Hills
16705 East Avenue of the Fountains.
Fountain Hills, Arizona 85268
Facsimile: 480 - 837 -3145
Attn: Town Manager
401416.1
6
With copy to: GUST ROSENFELD, P.L.C.
201 East Washington, Suite 800
Phoenix, Arizona 85004 -2327
Facsimile: 602 - 340 -1538
Attn: Andrew J. McGuire, Esq.
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, or when such delivery is refused by the Party, (b) 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 (c) when delivered by verified 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 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. If the Developer or Town sell their respective real property interests, all
future notices shall be sent to the address for the then - current owner of the Parcel as listed in the
Maricopa County Assessor's Office.
13. Remedies.
a. Iniunctive Relief. The Parties hereto acknowledge and agree that they
have bargained for specific performance of the covenants, conditions, rights, easements, and
rights -of -way contained in this Agreement, and all other provisions hereof, and that each Party
entitled to enforcement of the terms hereof shall be entitled to injunctive relief, including, but not
limited to, temporary restraining orders, preliminary injunctions and permanent injunctions, both
mandatory and prohibitory. Subject to the limitations contained in this Agreement, the Parties
hereto shall have all remedies, at law or in equity, in order to enforce the terms of this
Agreement.
b. Self -Help. In addition to all other remedies available at law or in equity,
upon the failure of a defaulting Party to cure a breach of this Agreement within thirty (30) days
following written notice thereof by the non - defaulting Party (unless, with respect to any such
breach the nature of which cannot reasonably be cured within such thirty (30) day period, the
defaulting Party commences such cure within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion, which completion must occur not later than sixty
(60) days from the notice), the non - defaulting Party shall have the right to perform such
obligation contained in this Agreement on behalf of such defaulting Party and be reimbursed by
such defaulting Party upon demand for the reasonable costs thereof together with interest at the
prime rate charged from time to time by Bank of America (its successors or assigns), plus two
percent (2 %) (not to exceed the maximum rate of interest allowed by law). Notwithstanding the
foregoing, in the event of (i) an emergency, (ii) blockage or material impairment of the Easement
rights, and/or (iii) the unauthorized parking of vehicles on a Parcel, the non - defaulting Party may
immediately cure the same and be reimbursed by the defaulting Party upon demand for the
reasonable cost thereof together with interest as above described.
901446.1
7
14. Duration. Unless otherwise cancelled or terminated as set forth herein, all the
Easements granted in this Agreement shall continue in perpetuity.
15. Document Execution. Modification and Cancellation. This Agreement (including
exhibits) may be modified or cancelled only by the unanimous agreement by the owners of both
of the Parcels; provided, however that if the Developer Parcels are owned by more than one
person or entity, only the consent of such owners holding a real property interest in the
Developer Easement Area shall be required to sign on behalf of Developer.
16. Headings. The headings herein are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope or intent of this document nor in
any way affect the terms and provisions hereof.
17. Time of the Essence. Time is of the essence with regard to performance under the
terms and provisions of this Agreement, and any amendment, modification or revision thereof,
with respect to the actions and obligations of each person bound by the terms hereof. In
accepting an interest in a Parcel, each owner, tenant, lessee, user, and mortgagee, and trust deed
beneficiary shall be deemed to take its interest knowingly and willingly subject to this time is of
the essence clause.
18. Recitals. The foregoing recitals are true and correct and incorporated by this
reference.
19. Severability. Invalidation of any of the provisions contained in this Agreement,
or of the application thereof to any person by judgment or court order shall in no way affect any
of the other provisions hereof or the application thereof to any person and the same shall remain
in full force and effect.
20. Attorney's Fees. If either Party commences an action against the other to
interpret or enforce any of the terms of this Agreement or because of the breach by the other
Party of any of the terms hereof, the losing Party shall pay to the prevailing Party reasonable
attorney's fees, costs and expenses, including expert witness fees, incurred in connection with
the prosecution or defense of such action. For the purpose of this Agreement, the terms
"attorney's fees, costs and expenses" shall mean the fees and expenses of counsel to the Parties
hereto, which may include printing, duplicating and other expenses, air freight charges, and fees
billed for law clerks, paralegals, librarians and others not admitted to the bar but performing
services under the supervision of an attorney. The term "attorneys' fees, costs and expenses"
shall also include, without limitation, all such fees and expenses incurred with respect to appeals,
arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought
with respect to the matter for which said fees and expenses were incurred.
21. Negation of Partnership. None of the terms or provisions of this Agreement shall
be deemed to create a partnership between or among the Parties hereto in their respective
businesses or otherwise, nor shall it cause them to be considered joint ventures or members of
any joint enterprise. Each Party hereto shall be considered a separate owner, and no Party hereto
shall have the right to act as an agent for another Party hereto, unless expressly authorized to do
so herein or by separate written instrument signed by the Party to be charged.
401446.1
8
22. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any Parcel or any portion of any Parcel to the general public, or for any public use
or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities
of any Party hereto shall inure to the benefit of any third party person, nor shall any third party
person be deemed to be a beneficiary or any of the provisions contained herein.
23. Enforcement. All of the provisions of this Agreement shall be enforceable as
equitable servitudes constituting covenants running with the land pursuant to applicable law. It
is expressly agreed that each covenant to do or refrain from doing some act on a parcel owned by
the covenantor (a) is for the benefit of the land of the covenantees, (b) runs with both the land
owned by the covenantor and the land owned by the covenantees, and (c) shall benefit and be
binding upon each successive owner during his ownership of any portion of the land affected
hereby and each person having any interest herein derived through any owner of the land
affected hereby.
24. Remedies Cumulative. This Agreement shall create privity of contract with an
estate with and among all grantees of all or any part of the Parcels that contains a real property
interest in either Developer Parking Easement Area or the Town Parking Easement Area, and
their respective heirs, executors, administrators, successors and assigns. In the event of a breach
or an attempted or threatened breach of any part of this Agreement by any Party hereto, the other
Party shall be entitled forthwith to full and adequate relief by injunction and all other available
legal and equitable remedies.
25. Estoppel Certificate. Upon Developer's written request, the Town will execute,
acknowledge and deliver to Developer and all parties identified by Developer, including without
limitation assignees, transferees, tenants, purchasers, investors, lenders and mortgagees, a written
statement certifying (a) that this Agreement is unmodified and in full force and effect (or, if there
have been any modifications, that this Agreement is in full force and effect, as modified, and
stating the modifications) and (b) whether there are any then existing breaches or defaults by
Developer then known to the Town under this Agreement, and, if so, specifying the same. The
Town will deliver the statement to Developer or such requesting Party within fifteen (15) days
after request. The Town acknowledges that any such assignee, transferee, tenant, purchaser,
investor, lender or mortgagee may rely upon such statement as true and correct.
[SIGNATURES ON FOLLOWING PAGE]
901446.1
9
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
"Developer"
FOUNTAIN HILLS TOWN SQUARE, LLC
an Arizona limited liability company
901416.1
10
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
By:
Jay T. Schlum, Mayor
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENTS)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on 257 2008, by
George Kasnoff, Manager of FOUNTAIN HILLS TOWN SQUARE, LLC, an Arizona limited
liability company, on behalf of such limited liability company.
My Commission Expires:
STATE OF ARIZONA }
) ss.
COUNTY OF MARICOPA )
OFFICIAgq �,�{1 P lic in the State of Arizona.
JANICE E. BAXTER
katary Pub[ie • 8tato of Adz=
MARICOPA COUNTY
My comm. oxp[ma Doe. 5.2008
This instrument was acknowledged before me on , 2008 by Jay T.
Schlum, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on
behalf of the Town of Fountain Hills.
Notary Public in the State of Arizona
My Commission Expires:
401446.1
EXHIBIT 1
TO
RECIPROCAL PARKING EASEMENT AGREEMENT
[Legal Description of Developer Parcels]
See following pages.
901446.1
EXHIBIT "1"
TO
RECIPROCAL PARKING AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE, LLC
Legal Description of Developer's Parcels
Parcel No. 1:
Lots 1, 2,3 and 5, A FINAL REPLAT OF BLOCK 7, PLAT NO. 208, FOUNTAIN
HILLS, ARIZONA, according to Book 615 of Maps, page 49, records of Maricopa
County, Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
Except all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals,
fossils and fertilizers of every name and description, together with all uranium, thorium,
or other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
Parcel No. 2:
Lots 1, A FINAL REPLAT OF BLOCK 2, PLAT NO. 208, FOUNTAIN HILLS,
ARIZONA, according to Book 615 of Maps, page 48, records of Maricopa County,
Arizona:
Except all minerals as reserved unto the United States of America in Patent of said land
recorded February 28, 1956 in Docket 1839, page 426, records of Maricopa County,
Arizona; and
Except all oil, gases and other hydrocarbon substances, coal, stone, metals, minerals,
fossils and fertilizers of every name and description, together with all uranium, thorium,
or other material which or may be determined to be peculiarly essential to the production
of fissionable materials, whether or not of commercial value; and
Except all underground water in, under or flowing through said land, and water rights
appurtenant thereto.
EXHIBIT 2
TO
RECIPROCAL PARKING EASEMENT AGREEMENT
[Legal Description of Town Parcels]
See following pages.
901416.1
FAA
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DATE: 9 -11 -08
TOWN OF FOUNTAIN HILLS
TOWN PROPERTY
EXHIBIT "2"
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Exhibit "2" Parcel 1
TOWN OF FOUNTAIN HILLS
PLAT 208 BLOCK 1 & 2
Town Civic Center Property
A parcel of land being a portion of FOUNTAIN HILLS ARIZONA, FINAL
PLAT NO. 208 as recorded on November 30, 1971 in Book 144 of Maps,
Page 4 of the records of Maricopa County, Arizona and as shown in
the Affidavits of Correction recorded October 19, 1972 in
Docket 9768, Page 659 and recorded May 30, 1974 in Docket 10676,
Page 710, and situated in Section 15, Township 3 North, Range 6
East of the Gila and Salt River Base and Meridian and including
Lots 11 through 29, part of Lot 10, the Northwest 1.00 foot of Lot
30, and part of Parcel "A'l all in Block 1 of said Plat 208; and
Lots 8 through 29, part of Lots 30 through 33, the Northwest 1.00
foot of Lot 7, and a part of Parcel "B" all in Block 2 of said Plat
208; together with a portion of Stewart Vista Drive (formerly
Cascade Avenue) as shown on said Plat 208, said parcel being more
particularly'described as follows:
COMMENCING at the intersection of E1 Lago Boulevard and La Montana
Drive as shown on said Plat, thence North 20 degrees 38 minutes 08
seconds East along the centerline of La Montana Drive, a distance
of 72.00 feet;
thence South 69 degrees 21 minutes 52 seconds East a distance of
42.00 feet to the Easterly right of way line of said La Montana
Drive, the POINT OF BEGINNING;
thence North 20 degrees 38 minutes 06 seconds East along the said
J Easterly right of way line a distance of 1092.00 feet to the
beginning of a tangent curve concave Southerly and having a radius
of 30.00 feet;
thence departing La Montana Drive around the arc of said curve
through a central angle of 90 degrees 00 minutes 00 seconds an arc
length of 47.12 feet to the Southerly.. right of way of Avenue of The
Fountains;
thence South 69 degrees 21 minutes 52 seconds East along said-
Avenue, a distance of 481.00 feet;
thence departing Avenue Of The Fountains, South 20 degrees 38
minutes 08 seconds West a distance of 1152.00 feet to the Northerly
right of way of E1 Lago Boulevard;
thence North 69 degrees 21 minutes 52 seconds West along said
Boulevard, a distance of 481.00 feet to the beginning of a tangent
curve concave Easterly and having a radius of 30.00 feet;
thence departing El Lago Boulevard along the arc of said curve
through a central angle of 90 degrees 00 minutes 00 seconds an arc
length of 47.12 feet to the POINT OF BEGINNING;
EXCEPT all minerals as reserved unto the United States of America
in Patent of said land recorded February 28, 1956 in Docket 1839,
page 426, records of Maricopa County, Arizona.
- 2 -
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No: (211- 007 - 1041661)
EXCEPT all oil, gases and other hydrocarbon substances, coal,
stone, metals, minerals, fossils and fertilizers of every name and
description, together with all uranium, thorium, or any other
material which is or may be determined to be peculiarly essential
to the production of fissionable materials, whether or not of
commercial value.
EXCEPT all underground water, in, under or flowing through said
land and water rights appurtenant thereto.
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Exhibit t12" Parcel 2
TOWN OF FOUNTAIN HILLS
PLAT 208 BLOCK 1
Town Parcel
CONII MCING at a boat spike, being the intersection of the centerlines of Avenue of the Fountains and
Verde River Drive;
Thence, along the centerline of Verde River Drive, South 20 degrees 38 minutes 08 seconds West a
distance of 666.00 feet to the intersection of Verde River Drive and Stewart Vista Avenue, (formerly
Cascade Avenue);
Thence, continuing, South 20 degrees 38 minutes 08 seconds West a distance of 60.00 feet to a point on the
proposed Right of Way;
Thence, departing'said line, South 65 degrees 38 minutes 08 seconds West a distance of 59.40 feet to the
POINT OF BEGINNING;
Thence, continuing, South 65 degrees 38 minutes 08 seconds West a distance of 78.63 feet;
Thence North 69 degrees 21 minutes 52 seconds West a distance of 333.40 feet;
Thence North 20 degrees 38 minutes 08 seconds East a distance of 115.60 feet to a point on the south Right
of way of Stewart Vista Avenue;
Thence, along said Right of Way, South 69 degrees 2I minutes 52 seconds Fast a distance of 359.00 feet to
the beginning of a curve, concave to the southwest, with a radius of 36.00 feet;
Thence, along said curve, an are length of 47.12 feet to a point on the west Right of Way of Verde River
Drive;
Thence, along said Right of Way, South 20 degrees 38 minutes 08 seconds West a distance of 30.00 feet to
the POINT OF BEGINNING
Containing an area of 43,229 square feet more or less
IAROi_G• E:
SEASOU T
PARCEL TO BE CONVEYED
TO THE TOWN OF FOUNTAIN HILLS
i I V/
V F69. _ C
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3 44;_ e N,L '-= 33.29•
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�1 Engineers Surveyors
Landscape Architects Nb v
1s / POINT BEGINNING
Hansen Thorp Pellinen Olson Inc. / /
13229 E. Verde River Drive Suite 300 /
Fountain Hills, AZ 85268
(480) 836 -0535 PAGE 2 OF 2
/
Exhibit "2" Parcel 3
TOWN OF FOUNTAIN HILLS
PLAT 208 BLOCK 1 PAUL NORDIN PARKWAY
RIGHT-OF-WAY PARCEL
That portion of Fountain Hills Final Plat 208 Block 1, Book 144, Page 4 of the Records of Maricopa
County, Arizona and situated in the southwest quarter of Section 15, Township 3 North Range 6
East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, said parcel being
more particularly described as follows:
Commencing at the boat spike, being the intersection of the centerline of Verde River Drive and
the centerline of Fountain Hills Boulevard, south 20 degrees 38 minutes 08 seconds west a
distance of 666.00 feet to the intersection of the centerline of Verde River Drive and the centerline
of Paul Nordin Parkway (formerly Stewart Vista Avenue);
Thence, continuing, south 20 degrees 38 minutes 08 seconds west a distance of 60.00 feet to a
point on the southerly Right of Way of Paul Nordin Parkway, the TRUE POINT OF BEGINNING;
Thence departing said southerly Right of Way of Paul Nordin Parkway south 65 degrees 38
minutes 08 seconds west, a distance of 59.40 feet;
Thence north 20 degrees 38 minutes 08 seconds east, a distance of 30.00 feet to a tangent curve
being concave northwesterly and having a radius of 30.00 feet;
Thence along the are of said curve through a central angle of 90.00 degrees 00 minutes 00
seconds, an arc length of 47.12 feet;
Thence north 69 degrees 21 minutes 52 seconds west, a distance of 359.00 feet;
Thence north 20 degrees 38 minutes 09 seconds east, a distance of 84.00 feet;
Thence south 69 degrees 21 minutes 52 seconds east, a distance of 359.00 feet to a tangent curve
being concave northeasterly and having a radius of 30.00 feet;
Thence along the arc of said curve through a central angle of 90.00 degrees 00 minutes 00
seconds, an arc length of 47.12 feet;
Thence south 20 degrees 38 minutes 08 seconds west, a distance of 8.79 feet to a tangent curve
being concave southwesterly and having a radius of 60.00 feet;
Thence along the arc of said curve through a central angle of 32 degrees 00 minutes 00 seconds,
an arc length of 33.29 to a tangent curve being concave southeasterly and having a radius of
60.00 feet;
Thence along the arc of said curve through a central angle of 122 degrees 00 minutes 00 seconds,
an arc length of 127.54 feet the TRUE POINT OF BEGINNING.
This parcel contains an area of 33068.22 square feet or 0.76 acres more or less
Page 1 of 1
Exhibit "2" Parcel 3
TOWN OF FOUNTAIN HILLS
PLAT 208 BLOCK 1 PAUL NORDIN PARKWAY
RIGHT -OF -WAY PARCEL
A FINAL REPLAT OF BLOCK 2,
O
PLAT 208, FOUNTAIN HILLS, AZ
v BOOK 615, PAGE 48
=2 co 041`1-' 6g2r, l
2UO° N 35.02 "F i
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4 J2 rn
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Op 03,O�SCGS p Q �pAU4
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,L= 32'00'00" N 20'38'08" E
O1 R = 60.00 30.00'
N L = 33.29' S 6538'08" W
A= 122'00 "00 59.40' c0 LAND
/�ly�\ E, R = 60.00' it CA
W T SOa
�"%y- L = 127.54 W uAe 16545f Leo
L- 90'00'00" RANDY L z
,5' O3 R = 30.00' HARREL
0 46 eo' L = 47.12' THE VILLAGE AT TOWNE CENTER $,
A= 90'00'00"
BOOK 680, PAGE 32
S0 ' 1• - 80' ® R = 30.00'
DATE. 9 -11-08 L = 47.12'
EXHIBIT 3
TO
RECIPROCAL PARKING EASEMENT AGREEMENT
[Town Site PIan]
See following pages.
901446.1
=-E AVENUE OF THE FOUNTAINS ❑ o ❑
❑d ❑ c� c,
� M
I
1 i
RCS P 100A R 200 C H I T E c T s EXHIBIT 3- TOWN'S SITE PLAN
0
NORTH SCALE RECIPROCAL PARKING EASEMENT AGREEMENT
EXHIBIT 4
TO
RECIPROCAL PARKING EASEMENT AGREEMENT
[Developer Parking Easement Area]
See following pages.
901446.1
o ❑ ❑ AVENUE OF THE FOUNTAINS ❑ o ❑
o o 0
OR S P A R C H I T E C T S EXHIBIT 4- DEVELOPER PARKING EASEMENT AREA
o 100 zoo am
NORTH SCALE RECIPROCAL PARKING EASEMENT AGREEMENT
EXHIBIT 5
TO
RECIPROCAL PARKING EASEMENT AGREEMENT
[Town Parking Easement Area]
See following pages.
901446.1
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R S P ARCHITECTS EXHIBIT 5 - TOWN PARKING EASEMENT AREA
o 100 200 cx
NORTH SCALE RECIPROCAL PARKING EASEMENT AGREEMENT
EXHIBIT D
TO
DEVELOPMENT AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND FOUNTAIN HILLS TOWN SQUARE LLC
(Fountain Hills Town Square Downtown Project)
[Schedule]
See following pages.
846139.7
SCHEDULE OF PERFORMANCE
Deadline to Perform Task
From Effective Date of Agreement Task/Obligation
6 Months
Complete Acquisition of the Property
6 Months
Developer to have submitted all complete
documents necessary for Concept Plan
approval in sufficient time to allow for
approval by the 6 -month deadline.
12 Months
Developer to have submitted Construction
Documents for Phase I Improvements,
including Public Improvements.
18 Months
Developer to have begun construction of Phase
I Improvements.
30 Months
Developer to have completed construction of
Phase I Improvements. Developer to have
completed Public Improvements for Phase I.
36 Months
Developer to have submitted Construction
Documents for Phase II Improvements,
including Public Improvements.
40 Months
Developer to have begun construction of Phase
II Improvements.
60 Months
Developer to have completed construction of
Phase II Improvements. Developer to have
completed Public Improvements for Phase II.
66 Months
Developer to have submitted Construction
Documents for Phase III Improvements,
including Public Improvements.
70 Months
Developer to have begun construction of Phase
III Improvements.
90 Months
Developer to have completed construction of
Phase III Improvements. Developer to have
completed Public Improvements for Phase III.
96 Months
Developer to have submitted Construction
Documents for Phase IV Improvements,
including Public Improvements.
806129.7
100 months
Developer to have begun construction of Phase
IV Improvements.
120 Months
Developer to have completed construction of
Phase IV Improvements. Developer to have
completed Public Improvements for Phase IV.
806139.7