HomeMy WebLinkAboutRes 2006-04 When recorded, please return to: I
(rw I OFFICIAL RECORDS OF
Town of Fountain Hills I MARICOPA COUNTY RECORDER
16705 E. Avenue of the Fountains I N E L E N P UR C E L L
FountainI 2006-0272585 02/28/06 15 :50
Hills, AZ 85268
2 OF 4
IPgLUMBOR
Attn: Planning & Zoning I
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CAPTION HEADING:
Amended and Restated Development Agreement
Relating to Lots 68 and 69,
Business Park, Final Plat
This is part of the official document.
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RESOLUTION NO. 2006-04
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF `441)
FOUNTAIN HILLS, ARIZONA, AUTHORIZING THE EXECUTION OF AN
AMENDED AND RESTATED DEVELOPMENT AGREEMENT RELATING
TO LOTS 68 AND 69, BUSINESS PARK, FINAL PLAT.
WHEREAS, on May 17, 2001, the Mayor and Council of the Town of Fountain Hills
approved a development agreement between the Town of Fountain Hills (the "Town") and
Firerock Commerce Park, LLC, ("Firerock") 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, Firerock has completed the necessary modifications to the hillside
disturbance calculations; and
WHEREAS, the Town and Firerock 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.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF ,4110)
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 • 1 ADOPTED by the Mayor and Council of the Town of Fountain Hills,
January 5, 2006.
FOR TH r TO OF FOUNT• N HILLS: ATTESTED TO:
41\
)60-e"
W.-J. Nichol., fry; Bevelyn J. Be er, own Clerk
R �E EW D$Y: APP VE Wq0
FORM:
ivVj jk./-
N441)TImothy G. Picke mg, Tow anager Andrew J. McGuire, Town Attorney
622452.1
EXHIBIT A
TO
RESOLUTION NO. 2006-04
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622452.1
WHEN RECORDED,RETURN TO:
Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills,Arizona 85268
AMENDED AND RESTATED FIREROCK COMMERCE PARK
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
THIS FIREROCK COMMERCE PARK A ERNATIVE HILLSIDE PRESERVATION
AGREEMENT (this "Agreement") is entered int _ 5- , 2006, by and between
TOWN OF FOUNTAIN HILLS, an Arizon municipa corporation (the "Town") and
FIREROCK COMMERCE PARK, LLC, an Arizona limited liability company, and it's
successors and assigns (the "Owner").
RECITALS:
A. The Owner is the owner of certain real property located within the Town of
Fountain Hills, Arizona consisting of approximately 5.39 acres, described as Lots 68 and 69 of
Plat 414 in Fountain Hills, legally described on Exhibit A, attached hereto and incorporated
herein by reference (the"Property").
B. The Town, through its subdivision ordinance regulations, is requiring the Owner
to maintain a portion of the Property as natural open space in order to preserve a portion of the
hillside slopes on the Property (collectively, the "Preservation Requirement").
C. The Owner and the Town are entering into this Agreement pursuant to the
provisions of Arizona Revised Statutes § 9-500.05 in order to facilitate the development of the
Property by providing for an alternative means for the Owner to satisfy the Preservation
Requirement of Section 504 of the subdivision ordinance of the Town of Fountain Hills and to
provide for a dedication of a Hillside Protection Easement (the "HPE"), as legally described on
Exhibit B, attached hereto and incorporated herein by reference, by the Owner to the Town of
Fountain Hills to ensure compliance with the Preservation Requirement through the "Alternative
Preservation Plan," which shall be collectively constituted by (i) the Slope Analysis - Plat 414,
Lots 68 and 69, dated November 21, 2005, prepared by Hansen Thorp Pellinen Olson Inc.,
attached hereto as Exhibit C and incorporated herein by reference and (ii) the document entitled
"Proposed Alternative Hillside Preservation Requirement for Firerock Commerce Park,"
attached hereto as Exhibit D and incorporated herein by reference.
D. The Owner acknowledges that the Alternative Preservation Plan will benefit the
Owner by allowing for the dedication of a contiguous area of land to satisfy the Preservation
Requirement instead of requiring Owner to reserve multiple smaller areas throughout the
Property.
E. The Town acknowledges that the Alternative Preservation Plan will benefit the
Town by (i) reserving a larger area of open space, approximately 25,326 square feet of
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preservation land instead of the approximately 23,907 square feet that is required by the
Preservation Requirement and (ii) providing a buffer between the multi-family zoned
developments to the southeast of Firerock Commerce Park across Saguaro Boulevard and the
future industrial development on the Property. Further,the Town will allow the dedication of the
HPE to the Town, as described in the Alternative Preservation Plan.
AGREEMENT:
NOW, THEREFORE in consideration of the foregoing recitals, which are incorporated
herein by reference, the mutual promises and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Development Plans.
1.1 Plan of Development. The HPE and the Alternative Preservation Plan
collectively constitute a "Plan of Development" for the Property. It is the intent of the parties
that the Preservation Requirement will be satisfied in accordance with the Plan of Development
and as defined herein. To the extent there is conflict between the various documents making up
the Plan of Development and the various ordinances and development guidelines of the Town of
Fountain Hills, such development standards as are required to develop the Property in general
accordance with the Plan of Development shall be applied and shall govern and control.
411sw 1.2 Minor Amendments. The Plan of Development presently describes the
acreage and location of the alternative hillside preservation area. So long as such acreage and
location are not altered,the Owner may apply to the Town Council for minor changes to the Plan
of Development affecting part or parts of the Property. The Town Council shall consider such
applications as administrative amendments to this Agreement.
2. Obligations of Owner.
2.1 Owner's Construction. The Owner shall (i) use reasonable efforts to
prevent disturbing the landscaping and vegetation currently existing within the HPE during the
construction process, (ii) remove the grassy invasive plants remaining in the HPE, (iii) re-
landscape those portions of the HPE disturbed by the Owner pursuant to the non-abutting
landscaping standards contained in the Town's Subdivision Ordinance, (iv) plant ten minimum
24-inch box Chilean Mesquite trees adjacent to proposed buildings and/or site walls within the
HPE and (v) provide and maintain a drip irrigation system for the sole purpose of irrigating the
added trees.
2.2 Dedication of the HPE. Owner shall dedicate the HPE to the Town, by
separate instrument in the form of Exhibit B, at such time as the Town reasonably requires, in
satisfaction of the Preservation Requirement with respect to the Property.
3. Obligations of Town. As long as Owner has met its obligations under this
Agreement and all other applicable Town codes or regulations, the Town shall accept the
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dedication of the HPE to the Town from Owner in satisfaction of the Preservation Requirement
Nod
with respect to the Property. The Owner shall own and maintain the area of the HPE at its sole
cost and expense.
4. Cooperation And Alternative Dispute Resolution.
4.1 Appointment of Representatives. To further the commitment of the
parties to cooperate in the implementation of this Agreement, upon the request of either the
Owner or the Town, the Town and the Owner each shall designate and appoint a representative
to act as a liaison between the Town and its various departments and the Owner. The initial
representative for the Town (the "Town Representative") shall be the Town Manager, and the
initial representative for the Owner shall be its Project Manager, as identified by the Owner from
time-to-time (the "Owner 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. The representatives may
recommend amendments to the Plan of Development or this Agreement that may be agreed upon
by the parties.
4.2 Default. Failure or unreasonable delay by either party to perform or
otherwise act in accordance with any term or provision of this Agreement for a period of thirty
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. If, due to the nature of the
default, more time is required to cure said default, a period of up to ninety days shall be allowed
`,411)
by mutual agreement of the parties that shall then constitute the Cure Period. In the event such
default is not cured within the Cure Period, the non-defaulting party shall have all rights and
remedies that may be available at law or in equity.
5. 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
16705 E. Avenue of the Fountains
Fountain Hills, Arizona 85269
Facsimile: 480-837-3145
Attn: Timothy Pickering,Town Manager
With copy to: GUST ROSENFELD, P.L.C.
201 E. Washington, Suite 800
Phoenix,Arizona 85004-2327
Facsimile: 602-340-1538
Attn: Andrew J. McGuire,Esq.
Ned
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If to Contractor: Firerock Commerce Park,L.L.C.
4110 N. Goldwater Boulevard, Suite 200
Scottsdale, Arizona, 85251
Facsimile:
Attn: William F. Craig
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.
6.. General.
6.1 Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by the Town or the Owner 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.
6.2 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.
6.3 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
6.4 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 plat or
permit approvals or revisions, and other necessary approvals relating to the development of the
Property by the Owner and its successors.
6.5 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.
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6.6 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 Owner 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.
6.7 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.
6.8 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.
6.9 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, (ii) that it is
duly qualified to do business in the State of Arizona and is in good standing under the applicable
state laws, and (iii) that 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.
6.10 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
fulfill its obligations required hereunder, the Owner shall be entitled to terminate this Agreement.
6.11 Governing Law. This Agreement is entered into in Arizona and shall be
construed and interpreted under the laws of Arizona.
6.12 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
Owner.
6.13 No Owner Representation. Nothing contained herein or the Plan of
Development shall be deemed to obligate the Town or the Owner 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 Owner shall be done in accordance with this Agreement
and the Plan of Development, as the Plan of Development may be amended from time to time.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
"Owner" "Town"
FIREROCK COMMERCE PARK, LLC, THE TOWN OF FOUNTA HILLS,
an Arizona limited liability company an Arizona municipal co ration
By: By:
r W. J. Nic Is, Mayor
Name: (�
ATTEST:
Title: Nt Vi,a_ Pc--
Bevelyn J. B yider, Town Clerk
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(ACKNOWLEDGMENTS) li
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
1
This instrument was acknowledged befo e me on sa C-P 2 Z , 2000,
by /A) ///`G rvi F COL., , as Cart G� of FIREROCK
COMMERCE PARK, LLC, an Arizona limited 'ability m�n behalf of the company.
,/,[."
Notary ublic in and for the State of Arizona
My Commission Expires:
OFFICIAL SEAL
JANE E. ROBINSON
i N taty Public-State of Arizona
j / 2 e; MARICOPA COUNTY
/ (//h I My Comm expires Jan,28,2008
CJ -
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA ) J
This instrument was acknowledged before me on / ,200 ,
by W. J. Nichols, the Mayor of the TOWN OF FOUNTA HILLS, a Arizona municipal
corporation, on behalf of the Town of Fountain Hills
Notary Pub c in and for the State of Arizona
My Commission Expires:
/7,2 F 47
622492.1
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EXHIBIT A
TO
AMENDED AND RESTATED FIREROCK COMMERCE PARK
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
[Legal Description]
LOT 1 of Firerock Commerce Park, Fountain Hills, Maricopa County, Arizona, according to the
Plat of Record in the Office of the County Recorder of Maricopa County, Arizona, recorded in
document No. 4006-da�7o2 Sg'
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EXHIBIT B
TO
AMENDED AND RESTATED FIREROCK COMMERCE PARK
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
[HPE]
See following pages.
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EXHIBIT B
HILLSIDE PROTECTION EASEMENT
Area 1:
That part of Lot 69, Fountain Hills Arizona Business Park Plat No. 414, filed in the
Office of the Maricopa County Recorder in Book 287 of Maps, Page 22, being a
portion of Sections 26 and 27, Township 3 North, Range 6 East of the Gila and Salt
River Base and Meridian, Town of Fountain Hills, Maricopa County, Arizona,
described as follows:
Commencing at the intersection of the monument lines of Technology Drive and
Saguaro Boulevard; thence on an assumed bearing of North 50 degrees 48 minutes 03
seconds East along the monument line of Saguaro Boulevard a distance of 234.83 feet;
thence North 39 degrees 11 minutes 57 seconds West a distance of 42.00 feet to a point
on the southeastern line of said Lot 69, said point being the point of beginning; thence
North 39 degrees 11 minutes 57 seconds West a distance of 85.41 feet; thence South
54 degrees 57 minutes 07 seconds West a distance of 26.54 feet; thence South 35
degrees 02 minutes 53 seconds East a distance of 37.96 feet; thence South 54 degrees
57 minutes 07 seconds West a distance of 176.31 feet to the southwestern line of said
Lot 69; thence South 39 degrees 20 minutes 01 seconds East along the southwestern
line of said Lot 69 a distance of 42.32 feet; thence along a tangential curve concave
northerly, having a radius of 20.00 feet, a central angle of 89 degrees 51 minutes 56
seconds and an arc length of 31.37 feet; thence North 50 degrees 48 minutes 03
seconds West along the southeastern line of said Lot 69 a distance of 184.97 feet to the
point of beginning.
Area 2:
That part of Lot 69, Fountain Hills Arizona Business Park Plat No. 414, filed in the
Office of the Maricopa County Recorder in Book 287 of Maps, Page 22, being a
portion of Sections 26 and 27, Township 3 North, Range 6 East of the Gila and Salt
River Base and Meridian, Town of Fountain Hills, Maricopa County, Arizona,
described as follows:
Commencing at the intersection of the monument lines of Technology Drive and
Saguaro Boulevard; thence on an assumed bearing of North 50 degrees 48 minutes 03
seconds East along the monument line of Saguaro Boulevard a distance of 244.83 feet;
thence North 39 degrees 11 minutes 57 seconds West a distance of 42.00 feet to a point
on the southeastern line of said Lot 69, said point being the point of beginning; thence
North 39 degrees 11 minutes 57 seconds West a distance of 85.02 feet; thence North
46 degrees 38 minutes 59 seconds East a distance of 27.63 feet; thence South 43
degrees 21 minutes 01 seconds East a distance of 38.00 feet;thence North 46 degrees
(Exhibit B continued)
38 minutes 59 seconds East a distance of 192.20 feet to the northeastern line of said
Lot 69; thence along the northeastern line of said Lot 69 on a nontangent curve
concave southwesterly, having a radius of 370.00 feet, a central angle of 2 degrees 53
minutes 18 seconds an arc length of 18.65 feet and a chord bearing of South 37 degrees
27 minutes 41 seconds East; thence South 36 degrees 00 minutes 55 seconds East
along the northeastern line of said Lot 69 a distance of 25.58 feet; thence along a
tangential curve concave southwesterly,having a radius of 20.00 feet, a central angle of
89 degrees 48 minutes 58 seconds and an arc length of 30.30 feet; thence South 50
degrees 48 minutes 03 seconds West along the southeastern line of said Lot 69 a
distance of 200.05 feet to the point of beginning.
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EXHIBIT " B ".
HILLSIDE PROTECTION EASEMENT (H.P.E.) EXHIBIT
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EXHIBIT C
TO
AMENDED AND RESTATED FIREROCK COMMERCE PARK
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
[Slope Analysis by HTPO dated 11-21-05]
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EXHIBIT D
TO
AMENDED AND RESTATED FIREROCK COMMERCE PARK
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
[Proposed Alternative Hillside Preservation Plan]
See following pages.
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PROPOSED ALTERNATIVE HILLSIDE PRESERVATION REQUIREMENT FOR
FIREROCK COMMERCE PARK
INTRODUCTIONBACKGROUND INFORMATION
The proposed Firerock Commerce Park consists of the replating of Lots 68 and 69 of Plat 414 in
Fountain Hills, Arizona. The proposed development is approximately 5.39 acres in size and is
located on property bounded by Four Peaks Plaza to the northeast, Technology Drive to the
southwest and Saguaro Boulevard to the southeast. The adjacent land use zoning and/or
development in the area consists of the Four Peaks Plaza (Target) development along the entire
northeast boundary, SU IND-1 Mini Warehouse and RV Storage to the west along Technology
Drive, IUPD IND-2 Mini Storage (U-Haul) development to the southwest along Technology
Drive, and a fire station, sheriffs substation and R-3 Multi-family Residential to the southeast
along Saguaro Boulevard.
PROPOSED METHODOLOGY
One of the key considerations of this proposed alternative method of"Preservation Requirement"
is the R-3 (Multi-family Residential) zoning district southeast of the site. The IUPD IND-2
zoning requirements for this site require a 40-foot building setback along Saguaro Boulevard.
However, site grading and vegetation disturbance could occur up to the property line along
Saguaro Boulevard. If this were to occur there would be virtually no "buffer", natural or
otherwise, between the multi-family zoned properties and this proposed industrial development.
The zoning of the remaining adjacent properties along Technology Drive and Laser Drive are
similar and compatible with the zoning of this development. Therefore, there is much less
concern for providing buffering along Technology Drive frontages of the site.
As a result, the applicant is proposing to create and designate a natural open space area along the
entire boundary of Saguaro Boulevard, including covering and re-vegetating the ends of the
drainage channel constructed in the old Laser Drive alignment. The drainage channel will be
replaced with underground culverts connected to the existing culverts, fill material being placed,
and native plants installed to bridge the planting pallette to the north at the Four Peaks Center to
the natural open space area contemplated herein.
This open space area is proposed to be dedicated as a Hillside Protection Easement. The area
dedicated would serve as the total "Preservation Requirement" for the entire Firerock Commerce
Park Subdivision.
Some of the benefits of this proposed alternative preservation method are as follows:
1. Increase the building setback distance along Saguaro Boulevard.
The current required setback is 40'. The building setback will vary from 50' to
70' (approx.)
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Create a continuous landscape frontage from the Four Peaks Plaza to Technology
Drive.
2. Maintain the set aside area(HPE)in its natural state.
Reasonable efforts to protect the Landscape Easement(HPE) from damage during
construction shall be undertaken.
Salvage on-site native decomposed granite/soils for repairs and backfilling in the
easement(HPE).
Remove grassy invasive plants,trim overgrown plants and trees.
Plant ten relocated or new 24"box trees in groupings adjacent to the eastern most
buildings to repair construction affected areas immediately adjacent to the
buildings and site walls.
Install drip irrigation system for the new trees as needed.
Maintain the easement (HPE) as a "natural maintained desert," i.e. removal of
dead and dying material, selective pruning,removal of non-native species.
This proposed method concentrates all of the preservation area in a large mass along Saguaro
Boulevard, whereas the general Section 504 Hillside Disturbance requirement would create
much smaller and segregated pockets of preservation area throughout the subdivision.
This proposed method provides the maximum buffer area for the residential properties along the
east side of Saguaro Boulevard.
Using the standard preservation requirement, approximately 23,907 square feet of land in total
would be required for preservation. This alternative method would provide approximately 25,326
square feet of preservation land. An additional area of 3,485 square feet of contiguous disturbed
area would be re-vegetated and maintained in the same character as the dedicated easement area
creating a total contiguous area of 28,811 square feet.
CONCLUSION
In conclusion, it is believed that this proposed Alternative Hillside Preservation method will
provide significantly more total preservation area and strategically locate a much larger natural
open space buffer strip along Saguaro Boulevard. This method will have a greater benefit to the
nearby residential zoned properties along Saguaro Boulevard.
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