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HomeMy WebLinkAboutRes 2018-12RESOLUTION 2018-12 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING A SECOND AMENDMENT TO THE AMENDED AND RESTATED FINAL SETTLEMENT AGREEMENT BETWEEN THE TOWN AND MCO PROPERTIES INC., ET AL. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The Second Amendment to the Amended and Restated Final Settlement Agreement between the Town of Fountain Hills and MCO Properties Inc., et al., is hereby approved in substantially the form and substance 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 execute all documents and take all steps necessary to carry out the purpose and intent of this Resolution. SECTION 3. The Town Manager is hereby further authorized to approve and make such minor, non -material, administrative or clerical revisions to Exhibit A prior to its execution, as the Town Manager may reasonably determine to be required. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, February 6, 2018. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: 'nda M. Ka nagh, Ma or , Town Clerk 11,IKy11 OUTA 01111 Grady E. M' ler, wn Manager PHOENIX 77018-3 423015v2 Fredda J. man, Town Attorney EXHIBIT A TO RESOLUTION 2018-12 [Second Amendment To The Amended And Restated Final Settlement Agreement] See following pages. PHOENIX 77018-3 423015v2 A SECOND AMENDMENT TO "FINAL SETTLEMENT AGREEMENT Amended and Restated May 1, 2014" This Second Amendment to "Final Settlement Agreement (the "Amendment") is made to be effective as of February 6, 2018 (the "Effective Date"), between and among the Town of Fountain Hills, an Arizona municipal corporation (the "Town"), MCO Properties Inc., a Delaware corporation, successor -in -interest to MCO Properties L.P. d/b/a MCO Properties Limited Partnership, a Delaware limited partnership doing business in the State of Arizona ("MCO"), EN LLC d/b/a EN at Fountain Hills LLC, a Delaware limited liability company ("Eagles Nest"), Adero Canyon LLC, a Delaware limited liability company ("Adero") and Adero Canyon II LLC, a Delaware limited liability company ("Adero II"). The Town, MCO, Eagles Nest, Adero and Adero II are each referred to individually as a "Par ," and collectively as the "Parties." MCO, Eagles Nest, Adero and Adero II may be referred to in this Amendment collectively as the "Developer Parties." RVC` ITAI A A. Town and Developer Parties are parties to a Final Settlement Agreement Amended and Restated on May 1, 2014, recorded at 2014-0314508 in the Official Records of the Maricopa County Recorder's Office ("Official Records"), that was amended by a First Amendment to Final Settlement Agreement dated September 15, 2016, and recorded at 2016-0644980 in the Official Records, which added Adero II as a party (collectively, the "Settlement Agreement") governing the development of property defined in the Settlement Agreement as the Eagles Nest Property and the Adero Canyon Property (collectively, "Pro ert "). B. Adero II is the sole owner of a portion of the Property described in Exhibit A to this Amendment (the "Removed Property"). The Developer Parties now agree to cause the Removed Property to be removed from the Settlement Agreement. Accordingly, the purpose of this Amendment is to document the removal of the Removed Property from the Settlement Agreement, and to extinguish the Developer Parties' obligations with respect to the Removed Property. 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 Developer Parties hereby agree as follows: 1. Incorporation of Recitals. The foregoing recitals are true and correct and incorporated by this reference as if fully set forth in this Amendment. 2. Removal of Removed Property from Operation of the Settlement Agreement. As of the Effective Date, and subject to provisions of Section 5 of this Amendment, the Removed Property is removed from the Settlement Agreement, and all obligations of Developer Parties arising solely in connection with or with respect to the Removed Property are deemed PHOENIX 77418-3 413654v4 0 extinguished, including but not limited to, the obligation to complete the Emergency/Utility Access as defined in the Settlement Agreement. 3. Satisfaction of Certain Provisions of the Agreement. Upon execution of this Amendment, the Town shall issue a letter to the Developer Parties for the benefit of the Developer Parties acknowledging that certain requirements of the Settlement Agreement have been satisfied or complied with and accepted and approved by the Town, thus relieving the Developer Parties from any further obligations to satisfy those conditions and requirements. 4. Standards. In the event that Section 5.04 ("Hillside Disturbance") of the Town's current Subdivision Ordinance and Section 5.10 ("Canyon -side Lot Regulations") of the Town's current Zoning Ordinance (collectively, the "Current Ordinances") establish standards for the development of property within the Town that are less restrictive than the standards governing the development of the Property set forth in the Agreement, the less restrictive provisions of the Current Ordinances will govern the development of the Property. 5. Contingency. The effectiveness of this Amendment is contingent upon the execution by Adero II of a "Development Agreement" with the Town in a form satisfactory to the Town in its sole discretion ("Development Agreement") and concurrently with the execution by the Parties of this Amendment, by which Adero II assumes all development obligations with respect to the development of the Removed Property, as more fully set forth in the Development Agreement. Notwithstanding the forgoing, in the event that Adero II (i) fails to enter into a Development Agreement or (ii) in accordance with the express terms of the Development Agreement, elects to terminate the Development Agreement at its sole option upon giving written notice to the Town of such election (or is deemed to have terminated the Development Agreement), then this Amendment will be automatically withdrawn and of no force and effect, and the Removed Property (and the obligations of the applicable Developer Parties under the Settlement Agreement with respect to the Removed Property) will be fully restored and reinstated into the Settlement Agreement, as though this Amendment had never been executed. 6. No Boycott of Israel. Developer Parties certify pursuant to A.R.S. §35-393.01(A) that they are not currently engaged in, and for the Term of the Settlement Agreement will not engage in, a boycott of Israel. 7. Waiver of Claim under A.R.S. §12-1134. As an inducement to Town to approve and enter into this Amendment, Developer Parties agree to and do knowingly waive any and all rights to compensation for diminution in value of the Property pursuant to A.R.S. § 12-1134 that may now or in the future exist as a result of Town's entering into this Amendment, or the Town's approval or performance of, any condition, term and/or agreement contained in this Amendment, including (but not limited to) any acts undertaken by Town at the request of Buyer with respect to the Removed Property, any zoning (including but not limited to any approval of a PAD or amendment to such PAD), any amendment to Town's General Plan, and all similar actions of Town authorized or contemplated by or taken or performed in furtherance of this Amendment, or taken or performed in furtherance of this Agreement, or the restoration or reinstatement of the Removed Property into the Agreement following a failure of the contingency described in Section 3 of this Amendment (collectively, "Waiver"). This Waiver is effective from and after the Effective Date of this Amendment; supersedes any prior agreements PHOENIX 77018-3 413654v4 or understandings between Developer Parties and Town concerning the Property; and may not be modified or amended except by properly executed and recorded written agreement of Developer Parties and Town. This waiver runs with the land and is binding upon all present and future owners of the Property. Developer Parties agree to indemnify, defend, pay and hold Town (including its employees and elected officials) harmless for, from and against any and all claims made, asserted or alleged by any other person or entity who has claims and interest in the Property as of this date. 8. Assignment. Developer Parties may not assign their rights under the Settlement Agreement apart from a conveyance of the Property (or applicable portion of the Property being conveyed), and Developer Parties must assign all of their right, title and interest in, and obligations under, the Settlement Agreement to a transferee in connection with a conveyance of the Property (or applicable portion of the Property being conveyed) to such transferee. 0 Full Force and Effect. Except as expressly modified by this Amendment, the Agreement remains in full force and effect. [SIGNATURES ON FOLLOWING FOUR (4) PAGES] PHOENIX 77018-3 413654v4 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year first set forth above. "TOWN" TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Grady Mille , To Manager ATTEST: o r, Town Clerk STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On —1JqLVu 11 Zb before me,`C.LO.� UCAJ , a notary public in and for the State'd Arizona, personally appeared GRAD MILLER, who proved to me on the basis of satisfactory evidence to be the person (s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public My Commission Expires: EOOFFICIAL SEASEAL - - PATRICIA JO TOAL Commission #521340 Notary Public • State of Arizona MARICOPA COUNTY My comm, expires Dec. 8, 2020 PHOENIX 77018-3 413654v4 ,. MCO" MCO Properties Inc., a Delaware corporation By: Name: M . L=ry, , Iv Mca& sd �- Its: 7R -LC,, STATE OF TL X R S ) ss. COUNTY OF-��RFZx=s ) O-QI dol g , before me, ArtFO .:.NC— T7 -C- o i , a notary public in and for the 61tate of —F- -y cl , personally appeared tA, C,A, . y "j; Soh who proved to me on the basis of satisfactory evidence to be the person (s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offici Notary Public My Commission Expires: ANTOINETTE FONTENOT �� Notary Public, State of Texas ;!^1. . e� Comm. Expires 07 11 2020 0��.°� Notary ID 5779008 PHOENIX 77018-3 413654v4 „ EAGLES NEST,, EN LLC, a Delaware limited liability company By: C stn Name: H, L -"m', ty Its: -IRP -CA SU 2eR STATE OF -TEX� ) ss. COUNTY OF S ) On g , a,ani , before me, Ar1t-o;tx-Q�_ PnA�->-n4" , a notary public in and for the -State o Iff eXfAS , personally appeared M. C -M. w KW, sow; who proved to me on the basis of satisfactory evidence to be the person (s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offici - -}-- Notary Public My Commission Expires: -1-. ti,- QCUa,o ANTOINETTE FONTENOT Notary Public, State of Texas Comm. Expires 07-11-2020 Notary ID 5779008 PHOENIX 77018-3 413654v4 • 11991TIM Adero Canyon LLC, a Delaware limited liability company By: Name: M , Cm', C so ,--> Its: DRQ c 5 a KR'. STATE 0F7 &kr-i S ) ss. COUNTY OF AR R :cs ) On�o�nuc>�•1 aa,,before me, �+11-c�'� n�}-t� �an���lo7' , a notary public in and for the (3tate ofTay,n�s , personally appeared MoE_m', I X /n,,ds9 who proved to me on the basis of satisfactory evidence to be the person (s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offic' al. Notary Public My Commission Expires: �-rJ-ao�b ANTOINETTE FONTENOT :-�IP�Y P�!i :=o: • 4� Notary Public, State of Texas Comm. Expires 07-11-2020 Notary ID 5779008 �nnn+ PHOENIX 77018-3 413654v4 ,, ADERO IV, Adero Canyon II LLC, a Delaware limited liability company By: WV e-,, Name: ISv Its: TRP–ctSue,,zLFZ STATE OF T— ) ss. COUNTY OF j- IARR-x s ) before me, Y 1rw01 tLQ--"��pr��� , a notary public in and for the tate of eX (A5 , personally appeared t4.G n', I v f(V,4,so t who proved to me on the basis of satisfactory evidence to be the person (s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offci g 1. Notary Public My Commission Expires: EM OINETTE FONTENOTy Public,State of Texasm. Expires 07-11-2020Notary ID 5779008 PHOENIX 77018-3 413654v4 EXHIBIT A TO AMENDMENT Legal Description of Removed Property PHOENIX 77018-3 413654v4 Exhibit A Exhibit "A" PROPERTY DESCRIPTION PARCELS 2, 3, 4, 55 69 95 10 AND 10A OF ADERO CANYON, ACCORDING TO THE REPLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, IN BOOK 1220 OF MAPS, PAGE 28. 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 MATERIALS, WHETHER OR NOT OF COMMERCIAL VALUE, IN, OR UNDER THE PROPERTY, AS RESERVED ON DEED RECORDED DECEMBER 30, I993 AS 93-09213409 OF OFFICIAL RECORDS. EXCEPT ALL UNDERGROUND WATER IN, UNDER OR FLOWING THROUGH SAID PROPERTY AND WATER RIGHTS APPURTENANT THERETO, AS RESERVED ON DEED RECORDED DECEMBER 30, 1993 AS 93-0921340, OF OFFICIAL RECORDS. [TO BE REVISED TO EXCEPT THE VERIZON PARCEL]