HomeMy WebLinkAboutRes 2018-38RESOLUTION NO. 2018-38
A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF FOUNTAIN
HILLS, MARICOPA COUNTY, ARIZONA, ADOPTING A PARKING
EASEMENT AGREEMENT WITH RCS — PARK PLACE 1, LLC.
WHEREAS, the Mayor and Town Council of the Town of Fountain Hills (the "Town")
desire to adopt a parking easement in the vicinity of the Park Place development pursuant to that
certain Development Agreement between the Town and N -Shea Group and Park Place
Properties, LLC, recorded in the Official Records of the Maricopa County Recorder at
Instrument No. 2016-0478461.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND TOWN
COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. A Parking Easement Agreement is hereby adopted with RCS — Park Place 1, LLC
located through, over, under and across certain real property more specifically
described therein, 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 cause the execution of the Parking Easement
Agreement and to take all steps necessary to carry out the purpose and intent of
this Resolution.
[Signatures on following page]
PHOENIX 77018-1 4626120
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
Maricopa County, Arizona, this 5h day of June, 2018.
FOR THE TOWN OF FOUNTAIN HILLS:
L-Kda' M. agh, May6r
REVIEWED BY:
d
Grady E. Miller
o n Manager
PHOENIX 77018-1 462612v1
ATTESTED TO:
R- NP PC
er,,►•wn Clerk
APPROVED AS TO FORM:
Mi el, Interim Town Attorney
c �sonight PLLC
EXHIBIT A
TO
RESOLUTION NO. 2018-38
[PARKING EASEMENT AGREEMENT]
See following pages.
PHOENIX 77018-1 462612v1
WHEN RECORDED RETURN TO:
Town of Fountain Hills
Attn: Town Clerk
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
This Agreement is exempt from the real estate
transfer fee and Affidavit of Property Value
pursuant to A.R.S. §11-1134(A)(2)
PARKING EASEMENT AGREEMENT
THIS PARKING EASEMENT AGREEMENT (this "Easement Agreement") is entered
into on June 5, 20181 by and between the Town of Fountain Hills, an Arizona municipal
corporation ("Grantor" or the "Town"), and RCS — Park Place 1, LLC, a Colorado limited liability
company ("Grantee"). Grantor and Grantee are sometimes referred to herein collectively as the
"Parties," or individually as a "Party."
RF.C`:TTAT .R
A. Grantor owns that certain real property located east of the southeast corner of
Avenue of the Fountains and La Montana Drive in Fountain Hills, Arizona, more particularly
described in Exhibit P-1 and depicted in Exhibit P-3, attached hereto and incorporated herein by
reference (the "Town Parcel").
B. Grantee owns that certain real property located at the intersection of Verde River
Drive and Avenue of the Fountains in the Town of Fountain Hills, Arizona, as more particularly
described in Exhibit P-2 and as partially depicted in Exhibit P-3 (the "Developer Property").
Grantee intends to construct a multifamily and retail project, including but not limited to retail
shopping areas, restaurants, offices, and related uses (the "Project"), on the Developer Property.
Grantee requires use of the Town Parcel for parking related to the Project.
C. Grantor desires to grant to Grantee and its successors and assigns a permanent
nonexclusive easement for ingress, egress, parking and pedestrian access on, over and across the
Town Parcel (the "Easement Area") for use in connection with the Project.
D. The Parties acknowledge and agree that Grantee must design and construct the
AOTF Parking Lot (as defined in the Development Agreement (defined below)) on the Easement
Area in accordance with the requirements of that certain Development Agreement by and among
the Town of Fountain Hills, N -Shea Group, LLC ("N -Shea"), and Park Place Properties, LLC,
dated June 17, 2016, recorded on July 7, 2016 in the Official Records of Maricopa County
Recorder as Instrument No. 20160478461, as assigned by N -Shea to Grantee (with respect to the
"Phase 1" rights and obligations only) pursuant to that certain Assignment and Assumption of
Development Agreement (Phase 1), dated September 7, 2016, recorded on September 9, 2016 in
the Official Records of Maricopa County Recorder as Instrument No. 20160655029 (as so
assigned, the "Development Agreement").
PHOENIX 77018-1 4671180
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference and the mutual covenants set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows:
1. Grant of Easement. Grantor hereby expressly grants to Grantee and to its
successors and assigns, for the benefit of the Developer Property, the following easement through,
on, over, under, upon, in, across and along the Easement Area, subject to termination as set forth
in Section 2 below:
1.1 Parking and Maintenance Easement. Grantor hereby grants a non-exclusive
and perpetual right and easement (the "Easement") for the purpose of (i) ingress, egress, parking
and pedestrian access, and on-going maintenance activities related to the AOTF Parking Lot, and
(ii) ingress, egress, pedestrian access, and on-going maintenance activities related to the Pocket
Park..
1.2 Reserved.
2. Termination of the Easement. The Easement granted herein shall terminate
(i) immediately upon termination of the Development Agreement with respect to Phase 1 caused
by a breach of such agreement by the Developer (as such term is defined in the Development
Agreement) with respect to Phase 1, (ii) at such time as Phase 1 has been abandoned for a period
in excess of 180 consecutive days, or (iii) after completion of the AOTF Parking Lot, the failure
of Grantee to maintain the Easement Area as set forth in Section 3 below following the notice and
cure process set forth in Section 7.2 below. Upon occurrence of any terminating event as set forth
above, this Easement Agreement shall fully terminate and neither Party shall have any further
rights or obligations herein.
3. Operation and Maintenance.
3.1 AOTF Parking Lot. Grantee shall be solely responsible for the
(A) perpetual maintenance and repair of all pavement, markings, signage, dust control,
landscaping, irrigation, electrical and lighting located within the Easement Area, and (B) payment
of any electrical or water costs associated with the parking facilities located within the Easement
Area. Such maintenance and repair shall be conducted at the same intervals and standards as
Grantee's parking areas.
3.2 Reserved.
4. Indemnification. Grantee shall indemnify, defend and hold harmless Grantor and
each council member, officer, employee, contractor or agent thereof (Grantee and any such person
being herein called an "Indemnified Party"), for, from and against any and all losses, claims,
damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees,
court costs and the costs of appellate proceedings) to which any such Indemnified Party may
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PHOENIX 77018-1 4671180
become subject, under any theory of liability whatsoever ("Claims"), insofar as such Claims (or
actions in respect thereof) relate to, arise out of, or are caused by or based upon (i) the negligent
design and construction of the Parking Lot and the Pocket Park on the Easement Area, or (ii) failure
to properly maintain the Easement Area by Grantee, its employees, agents or any tier of
subcontractor acting on Grantee's behalf. The provisions of this Section will survive for a period
of one year following the termination of this Easement Agreement.
5. Insurance. Each of the Parties shall, at its 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 real property,
with liability limits not less than $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 certificates evidencing the insurance policies that each
Party is required to carry hereunder, shall be delivered to the other Party within five days after the
date on which this Easement Agreement is recorded. The policies of insurance must contain a
provision or endorsement that the company writing said policy will give to the other Party 30 days'
notice in writing of any modification, cancellation or lapse of effective date or any reduction in
the amount of insurance. Not more frequently than every five years, if, in the reasonable 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.
6. Notices and Requests. Any notice or other communication required or permitted
to be given under this Easement 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; or (iii) given
to a recognized and reputable overnight delivery service, to the address set forth below:
If to Grantor: Town of Fountain Hills
16705 East Avenue of the Fountains.
Fountain Hills, Arizona 85268
Attn: Town Manager
With a copy to: Town of Fountain Hills
16705 East Avenue of the Fountains.
Fountain Hills, Arizona 85268
Attn: Town Attorney
If to Grantee: RCS — Park Place 1, LLC
371 Centennial Parkway, Suite 200
Louisville, CO 80027Attn: Bruce Hazzard
3
PHOENIX 77018-1 4671180
With a copy to: Real Capital Solutions, Inc.
371 Centennial Parkway, Suite 200
Louisville, CO 80027
Attn: Senior Counsel
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; or (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. 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.
7. 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 Easement Agreement within 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 30 -day period, the defaulting Party
commences such cure within such 30 day period and thereafter diligently prosecutes such cure to
completion, which completion must occur not later than 60 days after the date of the notice), the
non -defaulting Party shall have the right to perform such obligation contained in this Easement
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 2% (not to exceed the maximum rate
of interest allowed by law). Notwithstanding the foregoing, in the event of (A) an emergency, (B)
blockage or material impairment of the Easement rights, or (C) the unauthorized parking of
vehicles on the Town 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.
8. Duration. Unless otherwise cancelled or terminated as set forth herein, the
Easement granted in this Easement Agreement shall continue in perpetuity.
9. Document Execution. Modification and Cancellation. This Easement Agreement
(including exhibits) may be modified or cancelled only by agreement between Grantor and
Grantee.
10. 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.
11. Time of the Essence. Time is of the essence with regard to performance under the
terms and provisions of this Easement Agreement, and any amendment, modification or revision
thereof, with respect to the actions and obligations of each person bound by the terms hereof.
4
PHOENIX 77018-1 4671180
12. Severability. Invalidation of any of the provisions contained in this Easement
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.
13. Attorney's Fees. If either Party commences an action against the other to interpret
or enforce any of the terms of this Easement 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 Easement Agreement, the terms "attorney's
fees, costs and expenses" shall mean the fees and expenses of counsel to the respective Parties,
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.
14. Negation of Partnership. None of the terms or provisions of this Easement
Agreement shall be deemed to create a partnership between or among the Parties 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.
15. No Other Interest. Grantee acknowledges and agrees that except for the Easement,
Grantee claims no right, title or interest in or to any portion of the Town Parcel.
16. Assignment. Neither Grantor nor Grantee shall have the right or authority to assign,
in whole or in part, any of its rights or obligations under this Agreement, or any portion of this
Agreement to any third party without the prior, written consent of the other party, which consent
shall not be unreasonably delayed, conditioned or denied. Notwithstanding the foregoing, the
Parties acknowledge and agree that no such consent shall be required if the underlying property
burdened or benefitted by this Easement Agreement is transferred or conveyed to a third party.
17. Running of Benefits and Burdens. All provisions of this Easement Agreement,
including the benefits and burdens, run with the land and are binding upon and inure to Grantor,
Grantee and their respective successors and assigns.
18. Additional Easements. Nothing contained in this Easement Agreement shall prohibit
Grantor from conveying additional easements for access, drainage, utility or other purposes through,
over, under, upon, in, across and along the Easement Area; provided, however, that no such additional
rights or easements shall impair the use of the Easement. Notwithstanding the forgoing, if Grantor
exercises its rights under this Section, Grantee shall not have any responsibility whatsoever for the
repair or replacement of any damage or destruction to the Town Parcel, or for any damage or
5
PHOENIX 77018-1 4671180
destruction to any improvements installed on the Easement Area by Grantee, caused by any such
activity, and Grantor shall be solely responsible for such repair or replacement.
19. Counterparts. This Easement Agreement may be executed in counterparts, all of
which are identical, each of which shall be deemed an original, and all of which counterparts, when
executed, taken together shall constitute one and the same instrument.
20. Entire Agreement. This instrument contains the entire agreement between the
Parties relating to the subject matter hereof. Any oral representations or modifications concerning
this instrument shall be of no force or effect, excepting a subsequent recorded modification, signed
by Grantor and Grantee or their respective successors or assigns.
21 Applicable Law; Venue. This Easement Agreement shall be governed by the laws
of the State of Arizona and suit pertaining to this Easement Agreement may be brought only in
courts in Maricopa County, Arizona.
[SIGNATURES ON FOLLOWING PAGES]
6
PHOENIX 77018-1 4671180
IN WITNESS WHEREOF, the Parties have executed this Parking Easement Agreement
as of the date first set forth above.
"Grantor"
TOWN OF FOUNTAIN HILLS
an Arizona municipal corporation
�'in�dda..'a agh, Mayo
ATTEST:
Will
Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On June 5, 2018, before me personally appeared Linda M. Kavanagh, the Mayor of the
TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, whose identity was proven to
me on the basis of satisfactory evidence to be the person who she claims to be, and acknowledged
that she signed the above document, on behalf of the Town of Fountain Hills. �,ry
A��2ala
�AL SEAL
PATRICiA 4 TUAL Notary Public
Commission ;1521340
(Affi 8� SWO of Arizona
C. FA COUNTY
MY comm. expires F)sc. 8, 2020
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
7
PHOENIX 77018-1 4671180
"Grantee"
RCS — PARK PLACE 1, LLC,
a Colorado limited liability company
&LyV-V
By61 �� --
Name: Skate iz, Fst-, trv1G...
Title: Manager
(ACKNOWLEDGMENT)
STATE OF COLORADO }
) ss.
COUNTY OF BOULDER )
On , 2018, before me personally appeared _
sh&nr, "'Fs�U wtti._., as
Manager of RCS — Park Place 1, LLC, a Colorado limited liability company, whose identity was
proven to me on the basis of satisfactory evidence to be the person who he/she claims to be, and
acknowledged that he/she signed the above document on behalf of RCS - Park Place 1, LLC, a
Colorado limited liability company. �..�
My Commissions Expires:
Not ublic
(Affix notary seal here)
ANDREA T R00S
Natary Public - State of Colorado
Notary ID 20054049193
My Commission Expires Dec 16, 2021
8
PHOENIX 77018-14671180
Exhibit P-1
PARKING EASEMENT AGREEMENT
PHASE 1 - TOWN PARCEL - LEGAL DESCRIPTION
A portion of the west half of Section 15, Township 3 North, Range 6 East of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona; being more particularly described in that certain
Special Warranty Deed, recorded in Instrument Number 1997-0300068, records of Maricopa
County, Arizona:
Beginning at the northeast corner of said described Special Warranty Deed, and the northwest
corner of Lot 1A of Final Replat of Block 2, Plat No. 208, Book 1278, Page 31, Maricopa County
Recorder, Maricopa County, Arizona, said corner being on the south right-of-way of Avenue of the
Fountains as shown on said Final Replat No. 208, Block 2;
Thence south 20 degrees 38 minutes 08 seconds west, a distance of 280.36 feet;
Thence leaving said Replat 208, Block 2, north 39 degrees 40 minutes 03 seconds west, a
distance of 170.38 feet;
Thence north 20 degrees 38 minutes 08 seconds east, a distance of 195.95 feet to a point on said
southerly right-of-way of Avenue of the Fountains;
Thence south 69 degrees 21 minutes 52 seconds east along said southerly right-of-way of Avenue
of the Fountains, a distance of 148.00 feet to the POINT OF BEGINNING;
This parking easement contains an area of 0.809 acres, more or less.
Exhibit P-2
PARKING EASEMENT AGREEMENT
PHASE 1 - DEVELOPER PROPERTY - LEGAL DESCRIPTION
Lot 1 A, of the Final Replat of lot 1, of the Final Replat of Block 2, Plat No. 208, Fountain Hills,
Arizona, Book 615 of Maps, Page 48, Maricopa County Records, Recorded June 28, 2016, Book
1278 of Maps, Page 31, Records of Maricopa County, Arizona, a portion of Section 15, Township 3
North, Range 6 East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona.
This parking easement contains an area of 2.58 acres, more or less.
�rr1V
ORA,
EXHIBIT P-3
PARKING EASEMENT AGREEMENT
BETWEEN THE TOWN OF FOUNTAIN HILLS AND RCS -PARK PLACE t, LLC
AVENUE OF THE FOUNTAINS
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----- `-' DATE: 5--23--18