ARROYO NORTE_ASSURANCE AGRMT.10.23.19.PDF

ASSURANCE AGREEMENT
This Agreement is made on , 2019, by and between MARICOPA
COUNTY, a political subdivision of the State of Arizona, (hereinafter "County"); And SLV
Arroyo Norte L.L.C., an Delaware Limited Liability Company, with an address of 2222 West
Pinnacle Peak Road, Suite 140, Phoenix, AZ. 85027, (hereinafter "SLY Arroyo Norte"). The
term "SLY Arroyo Norte" as used herein shall include SLY ARROYO NORTE and any and all
successors in title to the Property.
Whereas, SLY ARROYO NORTE is the owner of certain real property full described in
Exhibit A attached hereto and made a part hereto (herein referred to as "Property"); and
Whereas, SLY ARROYO NORTE has applied to the County pursuant to A.R.S. §11-821
et seq. to subdivide the Property for single family residential development; and
Whereas, A.R.S. §11-821(C) provides: "The regulations shall require the posting of
performance bonds, assurances or such other security as may be appropriate and necessary to
ensure the installation of required street, sewer, electric and water utilities, drainage, flood control
and improvements meeting established minimum standards of design and construction;" and
Whereas, A.R.S. §11-822(A) provides: "No plat of a subdivision of land within the area of
jurisdiction of the County shall be accepted for recording or recorded until it has been approved
by the Board. The approval of the Board shall be endorsed in writing on the plat and shall also
include specific identification and approval of the assurances;" and
Whereas, SLY ARROYO NORTE has requested that, to satisfy the statutory requirement
for providing an assurance to ensure the installation of required improvements, that the County
enter into an agreement with SLY ARROYO NORTE that no building permits for the construction
of homes for sale to third parties shall be issued in connection with the Property unless and until
such time as all required improvements that meet the minimum standards of design and
construction established by the County pursuant to plans and specifications that have been
approved by the County (i) have been installed at no cost or expense to the County and (ii) have
been inspected by the County, which has been satisfied with such installation pursuant to
guidelines adopted by the County; and
Whereas, any such agreement entered into between the parties shall be deemed to be a
"Building Permit Hold;" and
Whereas, the County is agreeable to entering into such a Building Permit Hold to serve as
the statutorily required assurance of performance provided all of the terms of such Agreement are
satisfied.
NOW THEREFORE, in consideration of the mutual premises contained herein and other
good and valuable consideration, the parties agree as follows:
1. The above recitals are incorporated herein as if fully reproduced at length.
2. No building permit shall be issued to allow construction on or in connection with the Property
except:

a. Building permits for the installation and completion of all required infrastructure for
the project pursuant to plans approved by any and all applicable agencies.
b. Not more than eight (8) building permits issued by the County in accordance with
applicable building codes for model homes, each home to be located on specific lots
approved by the County and be part of a "model home complex". No issued building
permit shall include the right to occupy any model home for any purpose other than to
demonstrate the style of home available to purchasers within the project; provided that
the garage and kitchen areas of one such home per model complex, as designated by
SLY ARROYO NORTE, may be used for the purpose of conducting sales of homes to
prospective third party purchasers.
3. No building permit of any kind shall be issued unless and until this Agreement has been
recorded in the office of the Maricopa County Recorder. Upon completion of the infrastructure
which this Agreement assures or other proper termination of this Agreement, the County shall
execute an appropriate document presented to it by SLY ARROYO NORTE for recording to
provide notice that this Agreement has terminated.
4. In the event the County Board of Supervisors shall not approve the subdivision plat for the
Property, this Agreement shall be deemed to be terminated properly and of no force or effect.
5. SLY ARROYO NORTE shall, at all times during the pendency of this Agreement,
maintain a valid, active building permit for construction of any and all required subdivision
infrastructure which has not been completed and approved by the appropriate agency.
6. Should SLY ARROYO NORTE breach this Agreement, any and all building permits that
have been issued for the Property shall immediately cease to be valid unless and until a financial
assurance, in form and amount satisfactory to the County, has been provided to and accepted by
the County.
7. This Agreement shall not be deemed to be satisfied unless and until all building permits
issued for the Property have been completed and all required warranty assurances have been
provided.
8. This Agreement may be terminated by SLY ARROYO NORTE providing substituted
assurances as required by ordinances and regulations of Maricopa County as a substitute for this
Agreement. Any financial assurance shall be based upon one hundred twenty percent (120%) of
a County approved cost estimate, as prepared by a civil engineer licensed in the State of Arizona,
for the remaining improvements at the time of termination. Said estimate shall be based on current
unit costs for the various remaining work items.
9. This Building Permit Hold does not and shall not be interpreted to include required
assurances for any and all improvements required by Maricopa County Department of
Transportation that are located along the perimeter or outside the boundaries of the Property. Said
improvements shall be assured by proper financial assurance(s) pursuant to guidelines provided
by Maricopa County Department of Transportation.
-2-

10. Nothing contained in this Agreement shall be construed as obviating the necessity of SLV
ARROYO NORTE providing financial warranty assurances for any improvements pursuant to
applicable County ordinances, resolutions or rules.
11. This Agreement may be cancelled by the County pursuant to the terms of A.R.S. § 38-511.
12. All notices, and communications to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally (in which case the date of delivery
would the actual date), if mailed first-class, postage prepaid, or certified mail (in which case the
date of delivery would be three (3) days from the date of mailing), or if sent by telegram, telex,
facsimile, telecommunication or other similar form of communication (in which case the date of
delivery would be the date of receipt confirmation), as follows, or as otherwise provided by notice
to the other party:
If to County:
Maricopa County Planning and Development Department
501 N. 44th Street
Phoenix AZ
Attention: Director
If to SLY ARROYO NORTE:
2222 West Pinnacle Peak Road, Suite 140
Phoenix, AZ. 85-27
Attn: Michael Cronin
13. This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the
parties to this Agreement and their respective successors and assigns. This Agreement shall run
with and be an encumbrance upon the Property.
14. This Agreement, including all Exhibits, constitutes the entire agreement and understanding
between the parties relating to the provision of assurances required by statute and supersedes all
prior representations, communications and arrangements, whether oral, written or inferred,
between the parties relating to that subject matter. This Agreement shall not be amended or
modified except by a writing duly executed by SLY ARROYO NORTE and the County. The
waiver of any breach of any term or condition of this Agreement shall not be deemed to constitute
the waiver of any other breach of the same or any other term or condition.
15. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
16. This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
-3-

17. SLY ARROYO NORTE shall provide to the County, satisfactory evidence that the person
executing this Agreement for SLY ARROYO NORTE has been authorized to do so.
Dated as of the day and year first above written.
II

SLV ARROYO NORTE:
SLY ARROYO NORTE, L.L.C.
An Delaware Limited Liability Company
Title: Authorized Signer
COUNTY:
MARICOPA COUNTY BOARD OF SUPERVISORS
By:
Name:
Title:
ATTEST:
Date:
Clerk of the Board of Supervisors
Approved as to forj. aiI content:
Date:
Deputy County Attorney

EXHIBIT A
(Legal Description of the SLV ARROYO NORTE Property)
[See attached]

LEGAL DESCRIPTION FOR
ARROYO NORTE UNITS 8-10
THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 10, TOWNSHIP 6 NORTH, RANGE 2
EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, MARICOPA COUNTY, ARIZONA, BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A GLO BRASS CAP STAMPED "S2 S3 S10 S1 1 1933" AT THE NORTHEAST
CORNER OF SAID SECTION 10, FROM WHICH A GLO BRASS CAP STAMPED "1/4 S10 S1 1 1933"
AT THE EAST QUARTER CORNER OF SAID SECTION 10 BEARS SOUTH 00°00'07" WEST, 2644.88 FEET;
THENCE SOUTH 00°00'07" WEST ALONG THE EAST LINE OF SAID SECTION 10, A DISTANCE OF
40.00 FEET TO THE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 00°00'07" WEST ALONG SAID EAST LINE, 2604.88 FEET TO SAID EAST
QUARTER CORNER OF SECTION 10;
THENCE SOUTH 89°59'13" WEST ALONG THE EAST-WEST MID-SECTION LINE OF SAID SECTION 10,
A DISTANCE OF 1474.93 FEET TO THE SOUTHEAST CORNER OF ARROYO NORTE UNIT 4, AS
RECORDED IN BOOK 1004 OF MAPS, PAGE 01, RECORDS OF MAR1COPA COUNTY ARIZONA;
THENCE NORTH 35°03'12" EAST ALONG THE EAST LINE OF SAID ARROYO NORTE UNIT 4, A
DISTANCE OF 349.63 FEET;
THENCE NORTH 26°28'21" EAST ALONG SAID EAST LINE, 147.26 FEET;
THENCE NORTH 00°59'16" WEST ALONG SAID EAST LINE, 567.46 FEET TO A POINT ON THE
SOUTHERLY RIGHT-OF-WAY LINE OF ARROYO NORTE DRIVE, AS SHOWN ON THE MAP OF
DEDICATION FOR ARROYO NORTE, RECORDED IN BOOK 896 OF MAPS, PAGE 50, RECORDS OF
MARICOPA COUNTY, ARIZONA;
THENCE SOUTH 62°4859" EAST ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 58.12 FEET;
THENCE NORTH 27°1101" EAST ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 45.00 FEET;
THENCE SOUTH 62°48'59" EAST ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 179.79 FEET;
THENCE NORTH 27°1101" EAST, 50.00 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE
OF SAID ARROYO NORTE DRIVE;
• •
engineering
planning civil engineering surveying
6370 E. Thomas Road, Suite #200, Scottsdale, Arizona 85251
Phone (602) 334-4387 • Fax (602) 490-3230 • www.3engineering.com
. 3 engineering job # 5026 • Date: September 19, 2019

THENCE NORTH 62°48'59" WEST ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, 134.79 FEET TO
THE SOUTHEAST CORNER OF THAT RE-PLAT OF ARROYO NORTE UNITS 5, 6 & 7, AS RECORDED IN
BOOK 1129 OF MAPS, PAGE 23, RECORDS OF MARICOPA COUNTY ARIZONA;
THENCE NORTH 27°1101" EAST ALONG THE EAST LINE OF SAID RE-PLAT OF ARROYO NORTE UNITS
5, 6 & 7, A DISTANCE OF 1033.17 FEET;
THENCE NORTH 34°52'27" EAST ALONG SAID EAST LINE, 111.19 FEET;
THENCE NORTH 02°43'39" WEST ALONG SAID EAST LINE, 50.00 FEET;
THENCE NORTH 10°02'31" WEST ALONG SAID EAST LINE, 65.83 FEET;
THENCE NORTH 03°19'47" EAST ALONG SAID EAST LINE, 455.73 FEET TO A POINT ON THE
SOUTHERLY RIGHT-OF-WAY LINE OF CIRCLE MOUNTAIN ROAD, AS SHOWN ON SAID MAP OF
DEDICATION FOR ARROYO NORTE, RECORDED IN BOOK 896 OF MAPS, PAGE 50, RECORDS OF
MARICOPA COUNTY, ARIZONA;
THENCE NORTH 89°44'33" EAST ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE, 535.04 FEET TO
THE EAST LINE OF SAID SECTION 10 AND THE POINT OF BEGINNING.
CONTAINING 55.64 ACRES, MORE OR LESS
JAMES A.
LOV1-15,
Page I 2

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ACTION BY WRITTEN CONSENT OF
THE SOLE MEMBER
OF
BANYAN HOLDINGS LLC
The undersigned, being the sole Member of Banyan Holdings LLC, an Arizona limited
liability company (the "Company"), hereby consents in writing, without a meeting, to the following
actions:
RESOLVED, that Michael K. Jesberger ("Authorized Signer"), is hereby authorized and
directed, acting alone, on behalf of the Company, to do any and all acts necessary, convenient or
incidental to or for the furtherance of the purposes of the Company, including exercising all
limited liability company powers, statutory or otherwise. Without limiting the generality of the
forgoing, the Authorized Signer shall have the power and authority to grant, bargain, convey,
seller, acquire or purchase real and personal property; to sign promissory notes, security agreements,
mortgages or deeds of trust encumbering Company property; to execute purchase and sale
agreements, escrow instructions, trust agreements, deeds or other conveyances of land, bills of sale,
construction contracts, leases, agreements subordinating any lien, encumbrance or other right in real
or personal property to any other lien or encumbrance or other right in real or personal property to
any other lien or encumbrance; to execute and deliver good and sufficient deeds of conveyance or
other instruments necessary to effect a sale, conveyance, exchange, acquisition or purchase, and to
give warranties to the purchasers thereof .; and to execute any and all documents, certificates,
instruments, and agreements required or deemed advisable by the Authorized Signer in the
Authorized Signer's sole discretion, and such documents so executed shall be valid and binding
without further act or specific resolution of the Member.
THE UNDERSIGNED FURTHER CERTIFIES that the foregoing resolutions now
stand of record on the books of the Company; and that the resolutions are in full force and effect
and have not been modified or revoked in any manner whatsoever.
IN WITNESS WHEREOF, the undersigned have executed Action by Written Consent this
10th day of September, 2019.
SOLE MEMBER:
Michael and Michelle Jesberger Family Trust dated March 15, 2006
By:
Michael K. Jesberger, Trustee
By: V.V.
Michelle Jesberger, Trustee \71----1