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HomeMy WebLinkAboutRes 2006-13 RESOLUTION NO. 2006-13 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING A DEVELOPMENT AGREEMENT WITH FIREROCK PLAZA L.L.C., RELATING TO THE DEVELOPMENT OF ± 2.61 ACRES OF REAL PROPERTY, GENERALLY LOCATED ON THE SOUTH SIDE OF SHEA BOULEVARD, NORTHWEST OF THE BEELINE HIGHWAY. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, as follows: SECTION 1. That the Development Agreement between the Town of Fountain Hills and the Firerock Plaza L.L.C., relating to the development of±2.61 acres of real property, generally located on the south side of Shea Boulevard, northwest of the Beeline Highway (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, March 16, 2006. FOR THE TOWN F FOUNTAIN HILLS: ATTESTED TO: 16410' W. J. ichols, M or Bevelyn J. Ben r, To n Clerk REVIEWED BY: APPROVED AS TO FORM: Timot G. Pi ering, Town Manager Andrew J. McGuire, Town Attorney L 636948.1 EXHIBIT A TO RESOLUTION NO. 2006-13 *411) j j 636948.1 03/09/2006 10:23 6028406003 51:1711 N 40 I H 51 F'HX rAut nu n1C WHEN RECORDED,RETURN TO: ATTENTION: TOWN CLERK TOWN OF FOUNTAIN HILLS 16705 E.Avenue of the Fountains Fountain Hills,Arizona 85268 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is entered into March 16, 2006 by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the "Town") and FIREROCK PLAZA L.L.C., an Arizona limited liability company (the "Developer"). RECITALS A. The Developer is the owner of certain real Property located on the south side of Shea Boulevard, north of the Beeline Highway, within the Town of Fountain Hills, Arizona consisting of approximately 2.61 acres, as more particularly described in Exhibit A, attached hereto and incorporated herein by reference (the "Property"). 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 L by providing for among other things, conditions, terms, restrictions and requirements for the construction and installation of certain infrastructure improvement and any and all other matters set forth within the body of this Agreement and as more particularly identified and described on the Site Plan for the Property prepared by DeLorme & Associates, dated February 16, 2006 (the "Site Plan"), attached hereto as Exhibit B and incorporated herein by reference, including any changes thereto as set forth in this Agreement. 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,as set forth herein. 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 hereby agree as follows: 1. Shea Boulevard Improvements. 1.1 The Town and the Developer agree that the ultimate development of the Property will require that the Developer complete certain improvements related to the Property including, but not limited to, paving, grading, landscaping and drainage improvements to the existing Shea Boulevard public right-of-way. 633906.1 03/09/2006 10: 18 6028406003 5070 N 40TH ST PHX PAGE 02/10 including, but not limited to, paving, grading, landscaping and drainage improvements to the ,iti) existing Shea Boulevard public)right-of-way. 1.2 As a condition precedent to the approval of the Site Plan, Developer its successors or assigns shall also be responsible at their sole cost and expense to complete, or cause to be completed, the following: a. The traffic signal to be located on the Property, pursuant to the Grant of Easements for Fountain Hills Plat 412-B, Block 6, Lots 5, 6 & 7, executed by the Developer and the adjacent property owner and apportioning 60% of the cost of such traffic signal to the Developer. b. A meandering sidewalk along the Shea Boulevard frontage from the proposed Firerock Plaza Driveway to the northern edge of subject Property. e. Prior to issuance of a grading permit for the Property, the Developer shall provide the Town with an inventory of the plant varieties and quantities on the portion of the Property to be disturbed, as set forth below. Following construction of the improvements on the Property, the bermed, landscaped areas of the Property shall be revegitated in a manner approved by the Town and consistent with the plant quantity and variety existing on the Property prior to grading. d. Installation of an ADA-approved accessible ramp from Firebrick Drive onto the subject Property, in the location shown on the Site Plan. 2. Hillside Disturbance. 2.1 The Property contains 55,429 SF of disturbance allowed on land with slopes between 0% and 10%; 9,176 SF of disturbance allowed on land with slopes between 10% and 20%; and 4,103 SF of disturbance allowed on land with slopes between 20% and 30%, for a total of 75,871 SF of disturbance allowed (the "Total Disturbance Allowance") as set forth in the Town of Fountain Hills Subdivision Ordinance § 504. To the extent not included in the Total Disturbance Allowance, the remaining area of the Property must remain undisturbed (the "Nondisturbance Requirement"). In order to develop the Property as set forth in the Site Plan, the Developer would disturb 87,505 SF, 11,634 SF more disturbance than permitted by the Total Disturbance Allowance. The Town and the Developer agree and acknowledge that the provisions governing hillside disturbance for slopes in excess of 10% as set forth in the Town of Fountain Hills Subdivision Ordinance § 504 would impair the development of the Property in accordance with the Site Plan. Therefore,the Town and the Developer agree that a portion of the Nondisturbance Requirement may be waived by the Town in exchange for the Developer (a) complying with the terms and conditions of this Agreement and (b) paying $32,924 to the Town prior to issuance of any permit for development on the Property. 2.2 The parties acknowledge that any additional disturbance area required to accomplish the revegetation of disturbed areas of the Property with reasonably similar intensity J 633906.1 2 •03/09/2006 10: 18 6028406003 5070 N 40TH ST PHX PAGE 03/10 • Low and type of plant material as growing within the adjacent undisturbed areas, as set forth in subsection 1.2(c) above, shall not be deducted from the Disturbance Allowance for the Property. 3. Cooperation and Alternative Dispute Resolution. 3.1 Appointment of Representatives. To further the commitment of the parties to cooperate in the implementation of this Agreement, upon the request of the Developer or the Town, the Town and the Developer each shall designate and appoint a representative to act as a liaison between the Town and its various departments and the Developer. The initial representative for the Town(the "Town Representative") shall be the Zoning Administrator, and the initial representative for the Developer shall be its Project Manager, as identified by the Developer from time-to-time (the "Developer's 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 Site Plan. 3.2 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 he available at law or in equity. 4. 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, (b) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below, (c) given to a recognized and reputable overnight delivery service, to the address set forth below or (d) 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: Town Clerk With a copy i:o: Gust Rosenfeld, P.L.C. 201 E. Washington, Suite 800 Phoenix, Arizona 85004 Facsimile: 602-340-15 3 8 Attn: Andrew J. McGuire, Esq. If to Developer: Kama] Ramsumair 10901 West Palm Lane Avondale, Arizona 85323 Facsimile: 523-936-4900 633906.1 3 03/09/2006 10: 18 6028406003 5070 N 40TH ST PHX PAGE 04/.0 j With a copy to: George Namie 5070 N. 40th Street, Suite 140 Phoenix, Arizona.85018 Facsimile: 602-840-6003 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, (b) three business days after being placed in the U.S. Mail, registered or certified, properly addressed, with sufficient postage, (c) 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 (d) 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 5. General. 5.1 Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof and no waiver by the Town or the Developer 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. 5.2 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 5.3 Exhibits. Any exhibit attached hereto and the documents constituting the Site Plan 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. 5.4 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. 5.5 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 Notwithstanding the foregoing, the Developer's rights and obligations hereunder may only be assigned by a written instrument, approved by the Town Council and recorded in the official Records of Maricopa County, expressly assigning such rights and obligations. Tn the event the Town Council approves a complete assignment of the Developer's rights and obligations hereunder, Developer's liability hereunder for acts occurring after the date of the assignment shall terminate effective upon the assumption by Developer's assignee. 8,410 633906.1 4 83/09/200b 10: lb bb'Ld4ubuud N 4Gin =I rnn uwiri 5.6 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 ten years thereafter. 5.7 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. 5.8 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. 5.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof. All prior and contemporaneous (1160, agreements, representations and understandings of the parties, oral or written, are hereby superseded and merged herein. 5.10 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. 5.11 Good Standing and Authority. Each of the parties represents and warrants to the other (a) 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 (b) 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. 5.12 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. Lir 633906.1 5 03/09/2006 10:18 6028406003 5070 N 40TH ST PHX HAUL ebi e MAR-09-2006 06:20 PM 6269100269 P03 MAR 08,2006 19:13 BAMBOO PALACE REST 000-000-00000 Page 2 • UJ/0:;:;00C 1 7:01 f,N','NJ►k 1n,i 4)(I.I I•i 110 rAcir tni w. J 5.13 t,'loyeit',ttn,,,L,, t;. This Agreement is centt:rtal into in Arttrinu snit shall he t.:artst,ruod atnd u tratpratati Under the law$ of Arizona. In pnttieutnr, this Agreement is sahtaet tr+ thn pnwittinna rttARLZ.lt_t':v,SI,>♦T *+3a... 1 1, • 5.74 Reet niatjgp. '1•his Ainrrttn'(trit 4101 be'recorti44.in the Gftfcir►I lteccordet of Mai icoptt County nu Inter than ten d$vt1 after this Agreetnrrtr is MilACIlto i by the Town and the Developer 5,15 ,No I)SNc_I;a rAt,iituplti:stcOtatiun. Nothing rnitt0itvr;d ltorein or the Sirs FlAii shall be deemed to ohlIOAte the Developer to oone ea.cc construction on or ooi ph:L.e any part or all o:t'the Development of the 1'toperty; previdext. however, any dcyelopmruo ihsst is undertaken h'e'the Dcvclu pu'shall lx.donc.in aecordr nc:a with this Agreement end the site 1N WTTNI7,SS W1HE1thO1•', the vin ins hzvc nxorii,M (Tlt•C ARret;lrleni, the tin 7ttc1 yew host nbovr.wrincat • It't'owu" 'vcvolopnr" TOWN 01: Put;NTAI :UT IS.an f-IREROCIC PLAZA. 1.,1...(:., On Ait7,,►rio mu►iitilutl ekir Rolm(loft Arizona litnitt41 liabilityconipaiv r zay fir? / / �(/Ll a^ W. J. Nichols awr _,_._,..._. . --• knm m al R Ft __. (nL. Managing Member A'1'1't':S1'; • Bevelvn t Hcnde , i' 1 Clerk t personally appeared 441144, }v.rsonslly known to me .o be the ncrson name is subscribed to the within instrument :.;•� Acknowledge to me thitt 11= cw cuted the saint in his authorized capacities, and tkutt by his/i.or aignaturc on the instrument the person,or the en:1', upon behalf of which the person silo,l exceuttxl;.hi' instrament. s ray hap nd official suo.l 'NZ" —- t I tEU 'tt ��; Ctlwi 11152E988 %.,.t w+r.r v, ;, „ MoIAAt PvBttCcLIFDRRtM UI Ml'Calla. Mo�DR.20. 6 i MAR Ue,ir006 I M:.40 MAr:I.r1,LAN MAMIE 6020406UU3 b,nge, 2 ACKNOWLEDGMENTS STATE OF ARIZONA ) ) ss. County of Maricopa ) SUBSCRIBED AND SWORN to before me March , 2006 by W. J. Nichols, the Mayor of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, by and on behalf of the Town. 2t/ No ry : blic My Commission Expires: �.�� OFFICIAL SEAL y. JANE E. ROBINSOnN y r.�s..-.. W ti� is Notary Public-State of Arizona STATE OF ARIZONA ) �\` •� MARICOPA COUNTY ' ' My comm.expires Jen.28,2009 ) SS. •s r County of Maricopa ) SUBSCRIBED AND SWORN to before me March A, 2006 by Kamal Ramsumair, the ( Managing Member of FIREROCK PLAZA, L.L.C., an Arizona limited liability company, by and on behalf o f the company. Not My Commission Expires: ANNTZA GODINEZ .G.__.. `:_:;>: NOTARY PUBLIC--ARIZONA S.,�t ;)) MARICOPA COUNTY My Commission Expires February 4,2007 L 633906.1 7 u.» uJI Guuu iu. iu vu�u-ruuuu., . uu I$ tiuin of rnn rHVG G// ICJ EXHIBIT B TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA, L.L.C. [Site Plana. See following pages. J 4339061 .e.l..1/e. /LjGb 1G: lb bt:1Lb4GbUGJ JG f G IY 4G I M 5I rnn rwar. Gb/It) L. a 13..1. //\ d \ ° II /,$,/i.,\, ,., \ I l'?, / r"%i 0.e..... \ , C.,..?.. O_ .,.. 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N = • uJi u� cuuo lu.io VULU tuVVUJ JV!V iv tiui n of me rHt7G 07/ 1C1 EXHIBIT A TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA, L.L.C. [Legal Description] See following pages. J 613006 1 UJF U71 LUUV 1V. lU uVGU UU_4J uV r v ii TV II I rll I 1 II, I 1141... lU, lU EXHIBIT "A" LEGAL DESCRIPTION ORDER NO. 96250034 . Lots 5 and 6, Block 6, FOUNTAIN RILLS ARIZONA, FINAL PLAT NO. 412B, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, recorded in Book 163 of Maps, page 2. EXCEPT all minerals as reserved in Patent from the United States of America: and EXCEPT all gas, coal and minerals whatsoever already found or which may hereafter be found in or under said land, as reserved in instrument recorded in Docket 13772, pages 1142 and 1144; and EXCEPT all underground water in, under or flowing through said land and water rights appurtenant thereto, as reserved in instrument recorded in Docket 13772, pages 1142 and 1144. L J j