Loading...
HomeMy WebLinkAboutRes 2019-52 RESOLUTION NO. 2019-52 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND HILLTOP VISTA PROPERTIES, LLC ENACTMENTS: BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The Development Agreement between the Town of Fountain Hills and Hilltop Vista Properties, LLC is hereby approved in substantially the form and substance attached hereto as Exhibit A and incorporated herein reference. SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to execute all documents 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, this 19th of November, 2019. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Ginnyc Dickey, ayor Elizabeth . urke, Town erk REVIEWED BY: APPROVED AS TO FORM: Z/L -06 Grady E. i(ler, own Manager Aaron D. A on, Town Attorney I DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND HILLTOP VISTA PROPERTIES, LLC This Development Agreement ("Agreement") dated November 19, 2019, ("Effective Date") is between the Town of Fountain Hills, Arizona, an Arizona municipal corporation (the "Town") and Hilltop Vista Properties, LLC, an Arizona limited liability company (the "Developer"), together, the "Parties." RECITALS A. Developer has entered into a real estate purchase contract for the purchase of approximately 59.8 acres of real property located in Fountain Hills, Arizona, more particularly described on Exhibit A, attached and incorporated into this Agreement (the "Property"). B. Developer intends that the Property be developed for multi-family and related uses, including a portion for age-restricted multi-family units (the "Project"), according to the Site Plan that is attached to this Agreement as Exhibit B (the "Site Plan") and the "Daybreak PAD" attached hereto as Exhibit C (the "PAD"), both of which are incorporated into this Agreement. C. The Town desires that the Property be developed and has determined that encouraging the development of the Property pursuant to this Agreement will result in significant planning, economic and other public purpose benefits to the Town and its residents by, among other things (i) the construction of public improvements, (ii) development of the Property in a manner consistent with the Town's General Plan, (iii) an increase in sales tax revenues to the Town arising from or relating to the development of the Property and (iv) the creation of new jobs and otherwise enhancing the economic welfare of the residents of the Town. D. The Parties understand and acknowledge that the ultimate development of the Project on the Property is a project of such magnitude that the Developer requires assurances from the Town that the Project will be developed as contemplated by this Agreement. Developer intends to complete the acquisition of the Property and thereafter it is intended that the Project will be developed on the Property subject to and in accordance with the Site Plan and the PAD. The Parties further understand and acknowledge that the Town seeks assurances from the Developer that the Developer will complete certain Public Improvements necessary for the development of the Property in accordance with the Site Plan and the PAD. E. The Parties understand and acknowledge that this Agreement is a "Development Agreement" within the meaning of and entered into pursuant to the terms of ARIZ. REV. STAT. § 9-500.05, in order to facilitate the proper development of the Property by providing for, among other things (i) conditions, terms, restrictions and requirements for the Property by the Town and (ii) other matters related to the development of the Property. The terms of this Agreement shall constitute covenants running with the Property as more fully described in this Agreement, subject to the Closing Contingency, as defined in Section 7.2. I I AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, the promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties hereto agree as follows: 1. Incorporation of Recitals. The introduction and recitals are true and correct and incorporated by this reference as if fully set forth herein. 2. Term. The Developer, its successors and assigns, shall have the right to implement development on the Property in accordance with this Agreement for a period of 10 years from the Effective Date. If development of at least one phase of the Project is not commenced within this 10 year period, this Agreement shall automatically terminate as to the Property without the necessity of any notice, agreement or recording by or between the Parties (the "Term"); provided, however, that provisions of this Agreement that specifically survive the termination of this Agreement shall remain in full force and effect, subject only to the termination provisions herein specifically related thereto. For purposes of this Section 2, although grading of the Property may occur separately on one or both of the phases of the Project at any time, "development" shall mean the commencement of vertical construction beyond grading and foundation work for which a construction permit is issued. 3. PAD Rezoning. The PAD, which is attached as an exhibit to the Town Council's approved ordinance that adopts the PAD rezoning, including all stipulations, alterations and conditions included as part of its approval is referred to herein as the "PAD Rezoning Ordinance." The Parties agree and understand that all items submitted in the PAD application, and any letters, comments and other materials explaining or discussing that application and PAD Application brochure are of no force and effect, and that Developer and Town shall look solely to Town's regulations, the PAD Rezoning Ordinance, and this Agreement with respect to the zoning regulations for the Property. To the extent any conflict arises as between the PAD Rezoning Ordinance, this Agreement, and the Town's regulations, the PAD Rezoning Ordinance shall control first, then this Development Agreement, and then the Town's regulations, in that order of precedence. 4. Amendment to Plat. The Property has been previously platted by the Fountain Hills Resort Final Plat, recorded in the Maricopa County Recorder's Office, Book 597 of Maps, Page 42 (the "Current Plat"), which includes certain restrictions, dedications, easements and other matters shown on the Current Plat. Pursuant to the Town of Fountain Hills Subdivision Ordinance, Article 2, § 2.07.A for Minor Plats, the owner of the Property shall process a Minor Replat prior to securing a building permit. The Town agrees to process the Minor Plat Amendment creating the new lots. 5. Matters Relating to Development of the Property. 5.1 Plan of Development. The PAD, the Daybreak Final Plat and this Agreement collectively constitute a "Plan of Development" which includes modifications to the Town of Fountain Hills Subdivision Ordinance (the "Subdivision Ordinance") and Town of 2 Fountain Hills Zoning Ordinance (the "Zoning Ordinance"). It is the intent of the Parties that the Project be constructed in accordance with the Subdivision Ordinance and the Zoning Ordinance as amended by the terms of this Agreement (the "Zoning"). This Agreement is limited in scope in that its sole purpose is to allow for the limited set of modifications to the Subdivision Ordinance and Zoning Ordinance set forth herein. 5.2 Zoning. Concurrent with the execution and approval of this Agreement, the Town has approved the PAD Rezoning Ordinance and the PAD. 5.2.1 Timing of Vesting. The Zoning in the Property is hereby vested subject to the satisfaction of the Closing Contingency. 5.2.2 Vesting Defined. "Vested"means that for a period of 10 years after the Effective Date, the Town shall not, without Developer's (or its successor's) written consent, (i) change the Zoning, or (ii) amend a zoning classification or (iii) take any other action in a manner that would apply to the Property, where any such change, amendment, or action would reduce the density, permitted uses, or development standards provided for hereunder or otherwise in effect as of the date hereof. 5.2.3 Allowed Uses. At no time shall allowed uses include a licensed assisted living facility. 5.3 Density. 5.3.1 Maximum Number of Units. Pursuant to the PAD, Developer shall be permitted to develop, and the Town shall approve for development, a final plat and site plans for development of the Property for the number of multi-family units requested by Developer, provided there shall be no more than 400 multi-family units within the Property. 5.4 Subdivision Standards. The Town's Subdivision Ordinance establishes the standards for location and installation of infrastructure within the Property (the "Subdivision Standards"). The Parties agree that certain variations from the Subdivision Standards are appropriate for development within the Property. Accordingly, the Parties hereby agree to the following variations from the Subdivision Standards: 5.4.1 Retaining Walls. The Town hereby approves retaining walls with a height of(a) six feet for cut slopes, without handrails and (b) eight feet for fill slopes, without handrails, unless (i) a sidewalk or pathway is within five feet of a retaining wall or (ii) a site roadway or parking area curb is either within ten feet of a retaining wall or is within 20' of Palisades Boulevard, in which events a handrail shall be required. 5.4.2 Cuts and Fills. The prohibition in Subsection 5.03(D) of the Subdivision Ordinance against cuts in excess of 10 feet in height is hereby waived. The Parties agree that the cut and fill standards shall be modified as provided in the PAD. 5.4.3 Mountain Cut Standards. The Town has concurrently herewith approved the PAD which, where permissible in the reasonable judgment of Developer's independent soils engineer, provides for exposed cut slopes equal to one and one-half foot 3 horizontal for every one foot vertical (1.5:1) (the "Mountain Cut Standards"). Grading standards shall follow the standards approved on the PAD. Notwithstanding the foregoing, un-retained slopes may be up to 2:1 for fill slopes. Un-retained slopes may exceed 10 feet for cut slopes so long as the natural material is stable as determined by Developer's independent geotechnical engineer and Town Engineer. The Town agrees that the Subdivision Standards shall be further modified in conjunction with its approval of the final plat to allow development of the Property in accordance with the Mountain Cut Standards. 5.4.4 Sanitary Sewer. The sanitary sewer system for the Property will be designed to the specifications of the Fountain Hills Sanitary District and subject to approval by the Fountain Hills Sanitary District and review by the Town. 5.4.5 Water. The water systems for the Property shall be designed to specifications established by EPCOR and subject to approval by EPCOR and review by the Town. The Town shall have final approval relating to fire flow design, which shall conform to standard Fountain Hills code practices. 5.5 Zoning Standards. The standards for land use within the Property shall be as provided in the PAD (the "Zoning Standards"), which Zoning Standards are incorporated into and made a part of this Agreement. 5.6 Phasing Plan. The Developer shall use reasonable efforts to conform to the Phasing Plan with respect to the duration of construction as set forth in the PAD. 5.7 Miscellaneous Engineering Matters. The Town hereby approves (i) roadways, parking areas and driveways using CMP pipe to carry street flows; (ii) warranty curb replacement at five-foot intervals; (iii) roadways, parking areas and driveways with drop manholes, and (iv) other minor variations from Town policy, as set forth in this Agreement (the "Miscellaneous Matters"). Facilities for the collection of water shall be designed so as to retain safely and adequately the maximum expected storm water runoff volume equal to the difference between the predevelopment condition and the post development condition for a 100-year storm event. Detention basins shall be sized for specific drainage requirements for the Property. Detention basins need not be oversized, and no land area will be required to be set aside for additional uses. 6. Additional Obligations of the Parties. 6.1 Land Disturbance. Notwithstanding permitted disturbance according to a slope analysis per Article 5 of the Subdivision Ordinance, Developer agrees to increase acreage set aside for non-disturbance from 19 acres to 33 acres, which shall be within the hillside protection easement, as shown on the Daybreak Final Plat, and remain in its natural state. 6.2 Moratorium. The Town may not enact any moratorium, ordinance, resolution or other land-use rule or regulation or limitation on the rate, timing or sequencing of the development of the Property not in effect as of the date hereof, for a period of 10 years. 4 6.3 Utilities. Developer acknowledges that the Town, at the date of execution of this Agreement, provides no municipal utility services (except trash collection); has no control over the provision of services by other entities; and makes no representation with respect to the availability of such services provided by other entities. Notwithstanding the foregoing, the Town agrees that in the event it provides municipal utility services in the future, the Town (i) shall make such services available to the Property on the same terms of availability as are applicable to other similar real property served by the Town, (ii) shall continue to provide such services as reasonably required in connection with development and use of the Property, and (iii) shall not adopt policies and procedures with respect to the provision of such services which would delay development of the Property. 7 Developer's Obligations. Developer shall perform all of its duties as set forth in this Section 7.1 Zoning Adherence and Performance. Developer agrees that the development of the Project shall be in accordance with the PAD. 7.2 Closing Contingency. Developer agrees to use reasonable efforts to complete the acquisition of the Property (close escrow and confirm ownership) for development of the Project not later than 180 days after the Effective Date. The effectiveness of this Agreement is expressly conditioned upon Developer or an affiliate or assignee of Developer acquiring fee title to the Property (the "Closing Contingency"). If Developer or an affiliate or assignee of Developer does not acquire such fee title on or before 180 days after the Effective Date, then this Agreement shall automatically terminate. 7.3 Public Improvements. Developer shall design and construct all public improvements associated with the Project for street, sidewalk, traffic mitigation measures, and landscaping improvements to Palisades Boulevard as set forth in Exhibit C and as described in Exhibit D ("Public Improvements"). Upon completion and acceptance by the Town, Developer shall dedicate all such Public Improvements to the Town. 7.4 Phased Development. The Town acknowledges that Developer plans to develop the Property in up to two phases generally set forth on Exhibit E to this Agreement. 7.5 Security. 7.5.1 Performance Bond for Development. The Developer, at its expense, shall provide the Town with a performance bond in such form as reasonably required by the Town Attorney and Town Engineer in an amount equal to the estimated hard costs of the Public Improvements to ensure that the installation of Public Improvements necessary for development of the Property will be completed (the "Public Improvements Assurances"). The performance bond for any Public Improvements shall be required at the time permits are issued for the first phase of the Project. 7.5.2 Letter of Credit for Traffic Mitigation. The Developer, at its expense, shall provide the Town with a letter of credit in an amount equal to $150,000 (the "Letter of Credit") to secure the obligation of the Developer to contribute to the cost of 5 construction and installation of a traffic signal at the intersection of Valley Vista Drive and the southern entry to the Project (the "Traffic Signal") in accordance with the terms below. The Letter of Credit shall be required at the time the first certificate of occupancy is issued for the final phase of the Project and shall remain in effect for a period of up to three years from the date it is issued. Provided that the Town posts signs lowering the speed limit to 40 MPH on Palisades Boulevard between Shea Boulevard and the entrance to Westridge Village on or before the commencement of grading of the Project, the Developer, at the Town's request, shall commission a traffic study at any time within two years following the issuance of the first certificate of occupancy for the final phase of the Project. If the traffic study concludes that there is a need for the Traffic Signal and the Town substantially completes construction of the Traffic Signal on or before the third anniversary of the issuance of the Letter of Credit, then the Town may draw upon the Letter of Credit to reimburse the Town for costs it expended to construct the Traffic Signal. If the traffic study concludes that there is not a need for the Traffic Signal or under any circumstances construction of the Traffic Signal is not substantially completed on or before the third anniversary of the Letter of Credit, then the Letter of Credit shall automatically terminate and the Developer shall have no further obligation pertaining to the Traffic Signal. 7.6 Third Party Review and Inspection. If expedited review of any plans is requested by Developer, upon receipt of such a request, the Town shall discuss the request with Developer and Town staff to determine who the Town will retain as its outside consultant to complete the expedited review. Once the Parties reasonably agree on (i) the applicable time frame for review, (ii) the applicable outside consultant, and (iii) the consultant's total fees, Developer will be responsible to promptly pay the Town's actual cost related to outsourcing as such costs are billed to the Town. The Town shall complete the review process as outlined above 1 in a timely manner. 7.7 Dedication and Acceptance. Upon completion by Developer of any Public Improvements, the Developer shall promptly (A) notify the Town in writing of the presumptive completion of such Public Improvements and (B) dedicate to the Town, at no cost to the Town, such Public Improvements free and clear of all liens and encumbrances and in accordance with Town standards applicable to such dedication and acceptance. So long as such Public Improvements are constructed in accordance with Town standards, as verified by the inspection of the completed Public Improvements by the Town Engineer, all punch list items have been completed, and the Public Improvements are free of any liens and encumbrances, the Town shall accept the Public Improvements. The Town shall notify the Developer, in writing, of the Town's acceptance of the Public Improvements within 30 days after notification and shall then promptly release the applicable Performance Bond. Subject to the warranty in Section 7.8, after acceptance of any Public Improvements, the Town shall maintain, repair and operate such Public Improvements at its own cost, which obligation shall survive any termination of this Agreement. Developer, at no cost to Town, shall dedicate, convey or obtain, as applicable all rights-of-way, rights of entry, easements and/or other use rights, wherever located, as useful or necessary for the operation and maintenance of the Public Improvements as required by the Town. 7.8 Warranty. Developer or its assignee shall give to the Town a one-year warranty for all Public Improvements, which warranty shall begin on the date that the Town accepts the Public Improvements as provided in Section 6.7. Any material deficiencies in 6 material or workmanship identified by Town staff during the one-year warranty period shall be brought to the attention of the Developer or its assignee that provided the warranty, which shall promptly remedy or cause to be remedied such deficiencies to the reasonable satisfaction of the Town Engineer. Continuing material deficiencies in a particular portion of the Public Improvements shall be sufficient grounds for the Town to require (A) an extension of the warranty as to that portion only for an additional 90 day period and (B) the proper repair of or the removal and reinstallation of, that portion of the Public Improvements that is subject to such continuing deficiencies. Regardless of whether the applicable warranty period has expired, the Developer agrees to repair any damage to the Public Improvements caused by Developer's construction activities on the Property. Nothing contained herein shall prevent the Town or Developer from seeking recourse against any third party for damage to the Public Improvements caused by such third party, but Developer's seeking such recourse shall not be cause for Developer to delay remediating any deficiencies. 7.9 Shuttle Service. Shuttle Service shall be provided for the age restricted portion of the Project. 7.10 Payment of Charges. Developer shall pay to the Town all applicable and lawful charges prior to the issuance of a construction permit, for platting, site plan, rezoning, permit, development, building inspection, and plan review fees imposed by the Town as of the Effective Date. Notwithstanding the foregoing, The Town hereby agrees to waive all fees pertaining to the application, review and approval of the PAD Stipulations, final plat approval and grading permits. 8 Cooperation and Alternative Dispute Resolution. 8.1 Representatives. To further the commitment of the Parties to cooperate in the implementation of this Agreement, upon the request of Developer or the Town, the Town and Developer shall each designate and appoint a representative to act respectively on behalf of the Town and its various departments and Developer, except as otherwise provided in this Agreement or by law. The initial representative for the Town shall be the Town Attorney, and the initial representative for Developer shall be Jeremy Hall or other party as identified by Developer from time to time. The representatives shall be available at all reasonable times to discuss and review the performance of the Parties to this Agreement and shall cooperate in order to facilitate any third-party action needed to complete the actions contemplated by this Agreement. 8.2 Impasse Procedure. If an impasse or dispute arises out of or relates to this Agreement, or the breach thereof, including without limitation the submittal, its interpretation or intent, or processing and approval of the final plat, the Parties agree to first try in good faith to settle the dispute by negotiation. In the event of any such negotiation, the Parties shall personally meet in an effort to resolve such dispute within 20 days of written request to do so by either the Town or Developer. 8.3 Default Cure. Upon a failure or unreasonable delay by any Party to perform or otherwise act in accordance with any term or provision of this Agreement, and failure of the procedures set forth in Sections 8.1 and 8.2 above, the other Party may give written notice 7 of default specifying the nature of the failure or delay and the manner in which it may be satisfactorily cured, if possible. In the event such failure or delay is not cured within 30 days after notice of nonperformance is given by the non-defaulting Party, such Party will be in default. In the event of such default, the non-defaulting Party may seek as its remedy, either the damages reasonably related to the breach or specific performance. If the nature of the defaulting Party's nonperformance is such that it cannot reasonably be cured within 30 days, then the defaulting Party will have such additional periods of time as may be reasonably necessary under the circumstances, provided the defaulting Party promptly (i) provides written notice to the non- defaulting Party and (ii) commences to cure its nonperformance and thereafter diligently continues to completion the cure of its nonperformance. In no event shall any such cure period exceed 90 days. 9 General. 9.1 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 addresses set forth below; (B) deposited in the U.S. Mail, registered or certified, return receipt requested, to the address set forth below; or (C) to a recognized and reputable overnight delivery service, to the address set forth below: If to Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Attn: Grady Miller, Town Manager With a copy to: Pierce Coleman PLLC 4711 East Falcon Drive, Suite 111 Mesa, Arizona 85215 Attn: Aaron D. Arnson, Town Attorney If to Developer: Hilltop Vista Properties, LLC c/o Jeremy Hall 14550 N. Frank Lloyd Wright Boulevard Scottsdale, AZ 85260 j gh@phxinterests.com With a copy to: David V. Suson, Esq. 109 Cherrywood Bellaire, TX 77401 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, properly addressed, with sufficient postage; or (C) the following business day after being given to a recognized overnight delivery service, with the person giving the notice paying all 8 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. 9.2 Amendment. No amendment or waiver of any provision in this Agreement will be binding (A) on the Town unless and until it has been approved by the Town Council and has become effective or (B) on Developer unless and until it has been executed by an authorized representative of Developer. 9.3 Headings; References. The headings herein are inserted only as a matter of convenience and for reference and in no way define, limit or describe the meaning of any provision or the scope or intent of this Agreement nor in any way affect the terms and provisions hereof. 9.4 Time of the Essence. Time is of the essence with regard to performance under the terms and provisions of this Agreement, and any amendment, modification or revision thereof, with respect to the actions and obligations of each person bound by the terms hereof. 9.5 Attorneys' Fees. If either Party commences an action against the other to interpret or enforce any of the terms of this 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 Agreement, the terms "attorney's fees, costs and expenses" shall mean the fees and expenses of counsel to the Parties hereto, which may include printing, duplicating and other expenses, air freight charges, and 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" also include, without limitation, all such fees and expenses incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred. 9.6 Recordation. This Agreement shall be recorded in its entirety in the Maricopa County Recorder's Office not later than 10 days after the sooner to occur of the date on which it is fully executed by the Developer and the Town or the date on which the Town is notified that the Closing Contingency has been satisfied.. 9.7 Choice of Law, Venue and Attorneys' Fees. The laws of the State of Arizona shall govern any dispute, controversy, claim or cause of action arising out of or related to this Agreement. The venue for any such dispute shall be Maricopa County, Arizona, and each Party waives the right to object to venue in Maricopa County for any reason. Neither Party shall be entitled to recover any of its attorneys' fees or other costs from the other Party incurred in any such dispute, controversy, claim, or cause of action, but each Party shall bear its own attorneys' fees and costs, whether the same is resolved through arbitration, litigation in a court, or otherwise. 9 9.8 Good Standing; Authority. Each Party represents and warrants that it is duly formed and validly existing under the laws of the State of Arizona with respect to Developer, or a municipal corporation within Arizona with respect to the Town and that the individuals executing this Agreement on behalf of their respective Party are authorized and empowered to bind the Party on whose behalf each such individual is signing. 9.9 Assignment. The provisions of this Agreement are binding upon and shall inure to the benefit of the Parties, and all of their successors in interest and assignees of Developer, and/or sub-developers who may acquire an interest in all or a portion of the Property, if applicable. Developer may assign this Agreement in whole or in part. Upon any assignment of this Agreement, Developer shall be fully released from any obligations, duties and/or responsibilities under this Agreement, provided such obligations are assumed by the assignee. If Developer conveys an interest in only a portion of the Property and any proposed assignment is for less than all of Developer's rights and responsibilities under this Agreement then the assignee shall be responsible for the performance of each of the obligations in this Agreement to which the assignee succeeds as the developer of that portion of the Property and Developer shall be released from any obligations that are assigned, but shall remain responsible for the performance of any obligations that were not assigned. 9.10 Third Parties. No term or provision of this Agreement is intended to, or shall be for the benefit of any person or entity not a Party hereto, and no such other person or entity shall have any right or cause of action hereunder. 9.11 No Partnership. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the Parties hereto in their respective businesses or otherwise, nor shall it cause them to be considered joint ventures or members of any joint enterprise or give them any right to act as an agent for another Party. 9.12 Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no waiver of any breach shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. No waiver shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver. 9.13 Further Documentation. The Parties agree in good faith to execute such further or additional instruments and documents and to take such further acts as may be necessary or appropriate to fully carry out the intent and purpose of this Agreement. 9.14 Fair Interpretation. The Parties have been represented by counsel in the negotiation and drafting of this Agreement and this Agreement shall be construed according to the fair meaning of its language. The rule of construction that ambiguities shall be resolved against the Party who drafted a provision shall not be employed in interpreting this Agreement. 9.15 Counterparts. This Agreement may be executed counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 10 9.16 Computation of Time. In computing any period of time under this Agreement, the date of the act or event from which the designated period of time begins to run shall not be included. The last date of the period so completed shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday or holiday. The time for performance of any obligation or taking any action under this Agreement shall be deemed to expire at 5:00 p.m. (local time, Phoenix, Arizona) on the last day of the applicable time period provided herein. 9.17 Conflict of Interest. Pursuant to ARIz. REV. STAT. § 38-503 and § 38-511, no member, official or employee of the Town shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she is, directly or indirectly, interested. This Agreement is subject to cancellation pursuant to the terms of ARIz. REV. STAT. § 38-511. 9.18 No Boycott of Israel. Developer certifies pursuant to ARIz. REV. STAT. § 35-393.01(A) that it is not currently engaged in, and for the Term of this Agreement will not engage in, a boycott of Israel. 9.19 Severability. Every provision of this Agreement is and will be construed to be a separate and independent covenant. If any provision in this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, the remainder of this Agreement or the application of that provision to circumstances other than those to which it is invalid or unenforceable will not be affected by that invalidity or unenforceability. Each provision in this Agreement will be valid and will be enforced to the extent permitted by law and the Parties will negotiate in good faith for such amendments of this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 9.20 Covenant of Good Faith. In exercising their rights and in performing their obligations pursuant to this Agreement, the Parties will cooperate with one another in good faith to ensure the intent of this Agreement can be attained. 9.21 Estoppel Certificate. Upon Developer's written request, the Town will execute, acknowledge and deliver to Developer and all parties identified by Developer, including without limitation assignees, transferees, tenants, purchasers, investors, lenders, and mortgagees, a written statement certifying (A) that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that this Agreement is in full force and effect, as modified, and stating modifications) and (B) whether there are any existing breaches or defaults by Developer then known to the Town under this Agreement, and if so, specifying the same. The Town will deliver the statement to Developer or such requesting party within 15 days after request. The Town acknowledges that any such assignee, transferee, tenant, purchaser, investor, lender, or mortgagee may rely upon such statement as true and correct. 9.22 Impossibility of Performance Due to Operation of Law. The Town shall not be deemed to be bound by, in violation of, or liable for any damages of any kind under this 11 Agreement if the Town is prevented from performing any of its obligations hereunder by the result of a referendum vote on Town Resolution No. 2019-39 and/or Town Ordinance No. 19-03. [SIGNATURES ON FOLLOWING PAGES] 12 "Town" TOWN OF FOUNTAIN HILLS an Arizona municipal corporation By: Ginny Dickey Mayor ATTEST: Elizabeth A. Burke, Town Clerk (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On , 2019, before me personally appeared Ginny Dickey, 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. Notary Public (Affix notary seal here) APPROVED AS TO FORM: Aaron D. Arnson, Town Attorney 13 "Developer" Hilltop Vista Properties, LLC By its manager, Phoenix Interests, LLC By: Name: Jeremy Hall As Its: Principal Address: 4515 E. Palo Verdes Drive Phoenix, AZ 85018 (ACKNOWLEDGMENT) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) On , 2019, before me personally appeared Jeremy Hall, a principal of Phoenix Interests, LLC, whose identity was proven to me on the basis of satisfactory evidence to be the person who he claims to be, and acknowledged that he signed the above document on behalf of the Town of Phoenix Interests, LLC. Notary Public (Affix notary seal here) 14 Exhibit A [Legal Description of the Property] Exhibit B [Site Plan -To be attached subsequent to execution and upon approval on or before December 1, 2020] Exhibit C PAD Exhibit D Public Improvements Exhibit E Phasing