HomeMy WebLinkAboutRes 2005-46 •f{ RESOLUTION NO. 2005-46
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AUTHORIZING THE EXECUTION OF AN
AMENDED AND RESTATED DEVELOPMENT AGREEMENT RELATING
TO LOT 34, BLOCK 1, FINAL PLAT 506C AND THE ABUTTING PARCEL
OF LAND TO THE WEST ENCOMPASSING APPROXIMATELY 27.5
ACRES OF LAND.
WHEREAS, on July 7, 2005, the Mayor and Council of the Town of Fountain Hills
approved a development agreement between the Town of Fountain Hills (the "Town") and High
Nob, L.L.C., ("High Nob") pursuant to ARiz. REV. STAT. § 9-500.05 (the "Agreement"), subject
to modifications regarding the calculations for hillside disturbance associated with the
development of the property; and
WHEREAS, High Nob has completed the necessary modifications to the hillside
disturbance calculations; and
WHEREAS, the Town and High Nob desire to enter into an amended and restated
development agreement, including the amended provisions relating the hillside disturbance
calculations, to replace the Agreement; and
WHEREAS, the amended and restated agreement is consistent with the Town's adopted
General Plan.
�r NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS, as follows:
SECTION 1. That the amended and restated agreement is hereby approved in the form
attached hereto as Exhibit A.
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,
August 4, 2005. ,,)
FOR THE TOWN,OF FOUNTAIN HILLS: ATTESTED TO:
/(/
W. J. Ni ols, ayor Bevelyn J. Ben r, T n Clerk
9196.001\..\2005-42 High Nob.res2.doc
7.29.2005-1
REVIEWED By: APPROVED AS TO FORM:
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Timof y Pickering, Town Man ge Andre J. McGuire, Town Attorney
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WHEN RECORDED,RETURN TO:
ATTENTION: TOWN CLERK
TOWN OF FOUNTAIN HILLS
16705 E.Avenue of the Fountains
Fountain Hills,Arizona 85268
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT(this"Agreement")is entered into August 4,2005,
by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the
"Town''), HIGH NOB, L.L.C., an Arizona limited liability company ("Developer").
RECITALS
A. The Developer is the owner of certain real Property located northwest of the
intersection of Golden Eagle Blvd.and Cerro Alto Drive within the Town of Fountain Hills,Arizona
consisting of approximately 27.5 acres,as more particularly described in Exhibit A,attached hereto
and incorporated herein by reference (the "Property" or the "Project").
B. The Developer and the Town are entering into this Agreement pursuant to the
provisions of ARIz.REV. STAT. § 9-500.05 in order to facilitate the development of the Property by
providing for, among other things, conditions, terms, restrictions and requirements for the
construction and installation of infrastructure improvements, amended subdivision development
regulations and any and all other matters set forth within the body of this Agreement and as more
particularly identified and described on the Preliminary Plat for the Property approved concurrently
herewith,prepared by Montgomery Engineering and Management,L.L.C.(the"Preliminary Plat").
C. The Town acknowledges that the development of the Property pursuant to this
Agreement will result in significant benefits to the Town and its residents by providing off-site
improvements, preservation of rock outcroppings and arroyo, custom lot development, improved
water system to Cerro Alto Drive,a private road maintained by the homeowners,a 30-foot no build
easement along the eastern side of the property and hillside preservation.
AGREEMENT
NOW,THEREFORE,IN CONSIDERATION of the foregoing and the mutual promises and
agreements set forth herein, the parties hereby agree as follows:
1. Development Standards.
1.1 The various exhibits attached hereto and this Agreement collectively
constitute a "Plan of Development" which includes modifications to the Town of Fountain Hills
Subdivision Ordinance (the "Subdivision Ordinance"). It is the intent of the parties that the
development be constructed in accordance with the Preliminary Plat as approved and as further
amended by the terms of this Agreement. This Agreement is limited in scope in that its sole purpose
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is to allow for a limited set of modifications to the Subdivision Ordinance, as set forth herein.
1.2 The parties hereby agree and understand that,subsequent to the execution of
this Agreement, and based upon the Town's review and due consideration, including without
limitation,the conduct of the requisite public hearings,the Town Council shall consider approval of
a final plat for the Property that includes the deviations from the Subdivision Ordinance permitted
herein.
1.3 The approval of the Town of the Preliminary Plat and this Agreement
constitute affirmative representations by the Town,on which the Developer is entitled to rely,that:
a. The Developer shall be entitled to develop the Property in accordance
with the Preliminary Plat and the deviations from the Subdivision Ordinance contained
thereon and in this Agreement.
b. The Town, having exercised its discretion in approving the
Preliminary Plat,agrees to cooperate reasonably in processing such permits,specifications,
and/or other development approvals of or for the Property as may be requested by Developer
in order to implement, and which are consistent with, the Preliminary Plat, provided that
Developer complies with all applicable rules and regulations and pays all applicable permit
and application fees.
2. Density. Developer shall be permitted to develop no more than 11 single-family lots
on the Property.
3. Cerro Alto Drive Improvements. The parties acknowledge that Subdivision
Ordinance § 305 limits the maximum length of cul-de-sac streets and the number of lots served by
such cul-de-sac streets. The Town and the Developer agree that the Developer shall be allowed to
deviate from such provisions to allow for a total cul-de-sac length of 3328 feet(±1670 feet hillside
local and±1250 feet local roadway) and 11 additional lots to the existing Cerro Alto Drive Cul de
Sac.
4. Hillside Disturbance. The Property contains 31,191 sq. ft.of disturbance allowed on
land with slopes between 10%and 20%; 50,643 sq. ft. of disturbance allowed on land with slopes
between 20%and 30%; and 65,803 sq. ft. of disturbance allowed on land with slopes in excess of
30%, for a total of 147,637 sq. ft. of disturbance allowed for all land with a slope of greater than
10% (the "Total Disturbance Allowance"); the remaining area of the Property in excess of 10%
slope must remain undisturbed(the"Nondisturbance Requirement"). The Town and the Developer
agree and acknowledge that the provisions governing hillside disturbance for slopes in excess of
10% as set forth in Subdivision Ordinance § 504 would impair the development of the Property in
accordance with the Preliminary Plat. Therefore,the Town and the Developers agree that the Total
Disturbance Allowance shall be distributed across the Property for areas with slopes in excess of
10% as follows in subsections 4.1 through 4.4 below:
4.1 The portion of the Total Disturbance Allowance to be allocated to each lot
(each a "Disturbance Allowance") shall be calculated by the Developers. The Nondisturbance
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Requirement for the balance of each lot shall be the total area of the lot, less the Disturbance
Allowance calculated by the Developers for such lot,less roadway grading disturbance as required
by the Town Engineer. The Town shall have the right to verify and approve such calculations.
4.2 Developer shall be solely responsible for calculating such Disturbance
Allowance as permits development of each lot, as may be required by Subdivision Ordinance
Section 308 (B). The calculated Disturbance Allowance and estimated Non Disturbance
Requirement acreages for each such lot shall be set forth on the final plat for the Property. The
estimated Nondisturbance Requirement acreage for each such lot shall be credited toward the total
Nondisturbance Requirement for the Property. In the event the parties agree that pockets of
"significant vegetation"or formations of"significant rock outcroppings,"as defined in Subdivision
Ordinance Section 602,Developer shall dedicate to the Town hillside protection easements covering
such pockets of"significant vegetation" or formations of"significant rock outcroppings" within
such lot.Any such dedicated area shall not affect the Disturbance Allowance for such lot,and shall
be credited toward the Nondisturbance Requirement for such lot.
4.3 The Disturbance Allowance within a lot may be located within any reasonable
area of the lot, as established by the site plan approved by the Town in connection with building
permit issuance. The property owner of each lot shall, prior to the issuance of the building permit
for such lot, dedicate to the Town a hillside protection easement covering the Nondisturbance
Requirement for such lot for such portions thereof where the Disturbance Allowance is not located.
4.4 The parties acknowledge that any additional disturbance area required to
accomplish the following shall not be deducted from the Disturbance Allowance for the Property:
a. Rounding the points where cut slopes meet natural grade to blend
undisturbed terrain and avoid a"sharp edge" appearance.
b. Revegetation of disturbed areas of a lot with reasonably similar
intensity and type of plant material as growing within the adjacent undisturbed areas.
c. Offsite disturbance for a waterline extension and any drainage
improvements required at Paradox Drive.
5. Cooperation and Alternative Dispute Resolution.
5.1 Appointment of Representatives.To further the commitment of the parties to
cooperate in the implementation of this Agreement,upon the request of either of the Developers or
the Town,the Town and the Developers each shall designate and appoint a representative to act as a
liaison between the Town and its various departments and the Developers.The initial representative
for the Town (the "Town Representative") shall be the Zoning Administrator, and the initial
representative for the Developers shall be its Project Manager,as identified by the Developers from
time-to-time (the "Developers' Representative"). The representatives shall be available at all
reasonable times to discuss and review the performance of the parties to this Agreement and the
development of the Property pursuant to the Plan of Development.
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5.2 Default. Failure or unreasonable delay by either of the parties to perform or
otherwise act in accordance with any term or provision of this Agreement for a period of 30 days
(the"Cure Period")after written notice thereof from the other party,shall constitute a default under
this Agreement. Said notice shall specify the nature of the alleged default and the manner in which
said default may be satisfactorily cured,if possible.In the event such default is not cured within the
Cure Period,the non-defaulting party shall have all rights and remedies,which may be available at
law or in equity.
6. Notices and Filings. 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 address 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 the Town: Town of Fountain Hills
16838 East Palisades Boulevard
Fountain Hills, Arizona 85268
Facsimile: 480-837-3145
Attn: Timothy G. Pickering, Town Manager
If to Developers: High Nob, LLC
16852 Lunar Lane
Fountain Hills,AZ 85268
Facsimile: 480-816-3849
Attn: Jack McCoy
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,registered
or certified,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 parry'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. General.
7.1 Waiver.No delay in exercising any right or remedy shall constitute a waiver
thereof, and no waiver by the Town or the Developers of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any
other covenant or condition of this Agreement.
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7.2 Headings. The descriptive headings of the paragraphs of this Agreement are
inserted for convenience only and shall not control or affect the meaning or construction of any of
the provisions hereof.
7.3 Exhibits.Any exhibit attached hereto and the documents constituting the Plan
of Development, shall be deemed to have been incorporated herein by this reference with the same
force and effect as if fully set forth in the body hereof.
7.4 Further Acts. Each of the parties hereto shall execute and deliver all such
documents and perform all such acts as reasonably necessary, from time to time, to carry out the
matters contemplated by this Agreement.Without limiting the generality of the foregoing,the Town
shall cooperate in good faith and process promptly any request and applications for final plat or
permits or approvals or revisions relating to the development of the Property by the Developers and
their successors.
7.5 Time of Essence and Successor.Time is of the essence of this Agreement. All
of the provisions hereof shall inure to the benefit of and be binding upon the successors and assigns
of the parties hereof. Developers' rights and obligations hereunder may be assigned by a written
instrument recorded in the official Records of Maricopa County expressly assigning such rights and
obligations.
7.6 Term. The term of this Agreement shall commence on the date first set forth
above and shall remain in full force and effect for a period of five years thereafter.
7.7 Termination Upon Sale to Public. The Town and the Developer hereby
acknowledge and agree that this Agreement is not intended to and shall not create conditions or
exceptions to titles or covenants running with the Property. Therefore, in order to alleviate any
concern as to the effect of this Agreement on the status of title to any of the Property,
notwithstanding anything contained herein to the contrary,this Agreement shall terminate without
the execution or recordation of any further document or instrument as to any lot which has been
finally subdivided and individually (and not in"bulk")leased(for a period of longer than one year)
or sold to the end purchaser or user thereof.
7.8 No Partnership; Third Parties. It is not intended by this Agreement to, and
nothing contained in this Agreement shall,create any partnership,joint venture or other arrangement
between the Developer and the Town. No term or provision of this Agreement is intended to, or
shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no
such other person, firm, organization or corporation shall have any right or cause of action
hereunder.
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7.9 Entire Agreement.This Agreement constitutes the entire agreement between
the parties hereto pertaining to the subject matter hereof.All prior and contemporaneous agreements,
representations and understandings of the parties,oral or written,are hereby superseded and merged
herein.
7.10 Amendment.No change or addition is to be made to this Agreement except by
a written amendment executed by the parties hereto. Within ten days after any amendment to this
Agreement, such amendment shall be recorded in the official Records of Maricopa County.
7.11 Good Standing and Authority. Each of the parties represents and warrants to
the other(i)that it is duly formed and validly existing under the laws of Arizona,duly qualified to
do business in the State of Arizona and in good standing under the applicable state laws and(ii)the
individual(s) executing this Agreement on behalf of the respective parties are authorized and
empowered to bind the party on whose behalf each such individual is signing.
7.12 Severability. If any provision of this Agreement is declared void or
unenforceable, such provision shall be severed from this Agreement,which shall otherwise remain
in full force and effect. If an applicable law or court of competent jurisdiction excuses the Town
from undertaking any contractual commitment to perform an act hereunder, this Agreement shall
remain in full force and effect,but the provisions requiring such action shall be deemed to permit the
Town to take such action at its discretion. If, however, the Town fails to take the action required
• hereunder,the Developer shall be entitled to terminate this Agreement.
7.13 Governing Law. This Agreement is entered into in Arizona and shall be
construed and interpreted under the laws of Arizona.In particular,this Agreement is subject to the
provisions of ARIZ. REV. STAT. §38-511.
7.14 Recordation. This Agreement shall be recorded in the Official Records of
Maricopa County no later than ten days after this Agreement is executed by the Town and the
Developer.
7.15 No Developer Representation. Nothing contained herein or the Plan of
Development shall be deemed to obligate the Developer to commence construction on or complete
any part or all of the development of the Property; provided, however, any development that is
undertaken by the Developer shall be done in accordance with this Agreement and the Plan of
Development.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF,the parties have executed this Agreement the day and year first
above written.
"Town" "Developer"
TOWN OF FOUNTAIN HILLS, HIGH NOB, L.L.C., an
an Arizona municipal corporation Arizona limited liability company
,,,;(' By / 7e A
..W ichols, Mayor fk R. McCoy, Managi g Member
ATTEST:
Bevelyn J. nd , Town Clerk
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ACKNOWLEDGMENTS
STATE OF ARIZONA )
) ss.
County of Maricopa )
SUP!. C� BED AND SWORN to before me thisac"1 day of k 2 05 by WrJ,
Niehel3,the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, by
and on behalf of the Town.
Notary Public
M Commission Expires:
r
r s'-+.�,_ OFFICIAL SEAL
ill "�';"- ,SHAUNNA DAYLE WILLIAMS
1,iy�, ak��F�_ r4,,t.y%bli..•3late of AriLuna
tI`, ,. MARICOPA COUNTY
�� is My Comm.expires June 14,2009
STATE OF ARIZONA )
) ss.
County of Maricopa )
SUBSCRIBED AND SWORN to before me thisi( `d' day of ,2005 by Jack R.
McCoy,the Managing Member of HIGH NOB,L.L.C.,an Arizona limit d liability company,by and
on behalf of the company.
i
Notary ublic
My Commission Expires:
0y ROBERT T. SAVARD
G Notary Public Arizona 0
Maricopo County
My Comm. Expires Jan 25, 2007
01.804/0,
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•
HIGH NOB ACRES
LEGAL DESCRIPTION
PARCEL NO. 1
LOT 34, BLOCK 1, FOUNTAIN HILLS ARIZONA, FINAL PLAT NO. 506-C, ACCORDING
TO BOOK 159 OF MAPS, PAGE 31, RECORDS OF MAICOPA COUNTY, ARIZONA. A
PORTION OF SECTION 5, T-3-N, R-6-E MCR, MARICOPA COUNTY, ARIZONA
APN 176-21-15 0
PARCEL NO. 2
THAT PART OF SECTION 5 TOWNSHIP 3 NORTH, RANGE 6 EAST OF THE GILA AND
SALT RIVER BASE AND MERIDIAN, MARICOPA COUNTY, ARIZONA, DESCRIBED
AS FOLLOWS: •
BEGINNING AT THE MOST NORTHWESTERLY CORNER OF LOT 34, BLOCK 1,
FOUNTAIN HILLS, ARIZONA, FINAL PLAT NO. 506-C, ACCORDING TO BOOK 159 OF
MAPS, PAGE 31, RECORDS OF MARICOPA COUNTY;
THENCE SOUTH AND ALONG THE WEST LINE OF SAID LOT 34 AND ALSO ALONG
THE BOUNDARY OF SAID FINAL PLAT A DISTANCE OF 422.55 FEET;
THENCE NORTH 65 DEGREES 06 MINUTES AND 46 SECONDS WEST A DISTANCE OF
195.05 FEET;
THENCE NORTH 15 DEGREES 09 MINUTES 27 SECONDS EAST A DISTANCE OF
262.00 FEET; •
THENCE NORTH 51 DEGREES 04 MINUTES 20 SECONDS EAST A DISTANCE OF
139.38 FEET TO THE TRUE POINT OF BEGINNING.
APN 176-21-471 C
•
•
4EXHIBIY
EXHIBIT A
TO
RESOLUTION NO. 2005-46
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9196.0011..\2005-42 High Nob.res2.doc
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When recorded, please return to: EA 1111
ice, I OFFICIAL RECORDS OF
I MARICOPA COUNTY RECORDER
Town of Fountain Hills
HELEN PURCELL
P. O. Box 17958 I 2005-1418141 09/26/05 11 :22
Fountain Hills, AZ 85269 I 1 OF 5
I PALUMBOA
Attn: Planning & Zoning I
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CAPTION HEADING:
Resolution No. 2005-47
Granting a Power Distribution Easement to Salt
River Project Agricultural Improvement and
Power District.
This is part of the official document.
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Copies Routed To:
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❑ Administration �.
❑ Engineering
❑ Planning and Zoning
❑ Parks &Recreation
❑ Magistrate Court
❑ Marshals Department
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