ELEMENT ON EUCLID_AAGRMT&RESO.PDF
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BUILDING PERMIT HOLD
This Building Permit Hold ("Agreement") is made on
2020, by and among MARICOPA COUNTY, a political subdivision of the State of Arizona,
(hereinafter "County"); ALL OTHER PROPERTY LIMITED LIABILITY PARTNERSHIP,
an Arizona limited liability partnership, with an address of 3719 E. Baseline Rd., Phoenix,
Arizona, 85042, and JEWELLAND L.L.C., an Arizona limited liability company, with an
address of 2702 E. Cholla Street, Phoenix, Arizona, 85028 (hereinafter collectively,
"Owners"); and MERITAGE HOMES OF ARIZONA, INC., an Arizona Corporation, with an
address of 8800 E. Raintree Drive, Suite 300, Scottsdale, Arizona, 85260 (hereinafter
"Meritage"). The term Owners as used herein shall include Owners and any and all successors
in title to the Property (as defined below).
Whereas, Owners are the owners of certain real property fully described in Exhibit A
attached hereto and made a part hereto (herein referred to as "Property"); and
Whereas, Meritage is under contract with Owners and has a right to acquire the
Property from Owners; and
Whereas, Meritage 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, Meritage has requested that, to satisfy the statutory requirement for providing
an assurance to ensure the installation of required improvements, that the County enter into
this Agreement with Meritage providing 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 this 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 Property 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 within the Property 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 Meritage, 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 Meritage for recording to provide notice
that this Agreement has terminated.
4.
In the event that either (a) the County Board of Supervisors shall not approve the
subdivision plat for the Property, or (b) the agreement pursuant to which Meritage has the right
to acquire the Property terminates without Meritage having acquired the Property, this
Agreement shall be deemed to be terminated properly and of no force or effect.
5.
Meritage 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 Meritage breach this Agreement after notice 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.
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7.
This Agreement shall not be deemed to be satisfied unless and until all building permits
issued for required infrastructure for the Property pursuant to plans approved by any and all
applicable agencies have been completed and all required warranty assurances have been
provided.
8.
This Agreement may be terminated by Meritage providing substituted assurances as
required by ordinances and regulations of Maricopa County as a replacement 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 (MCDOT) 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 MCDOT. The building permit for the subdivision's infrastructure and
the associated MCDOT Right-of-Way Permit shall not be issued until such time that the proper
assurance is provided for improvements required by MCDOT that are located along the
perimeter or outside the boundaries of the Property.
10.
Nothing contained in this Agreement shall be construed as obviating the necessity of
Meritage 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 85008
Attention: Director
If to Owners:
All Other Property Limited Liability Partnership
3719 E. Baseline Rd.
Phoenix, AZ 85042
Attn: Ernest Linsenmeyer
Jewelland L.L.C.
2702 E. Cholla Street
Phoenix, AZ 85028
Attn: David White
If to Merita2e:
Meritage Homes of Arizona, Inc.
8800 E. Raintree Drive, Suite 300
Scottsdale, Arizona 85260
Attn: Eric Montgomery
With Copy to:
Tiffany & Bosco, PA
2525 E. Camelback Rd., 7th Floor
Phoenix, AZ 85016
Attn: Ashley Z. Marsh
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 Owners, Meritage 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.
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17.
Owners and Meritage individually and respectively represent and warrant that the persons
executing this Agreement for Owners and Meritagehave been authorized to do so.
[SIGNATURES ON FOLLOWING PAGES]
By:
Name: David G. White
Title: Manager
Dated as of the day and year first above written.
OWNER:
All Other Property Limited Liability Partnership, an
Arizona limited liability partnership
By:
Ernest M. Linsenmeyer Trust, est 3/3/2016,
its General Partner
By:
Name: Ernest M. Linsenmeyer
Title: Trustee
Jewelland L.L.C., an Arizona limited liability
company
MEIIITAGE:
Meritage Homes of Arizona, Inc., an Arizona
Corporation
By:
Name: Eric Montg6mery
Title: Authorized Signer
COUNTY:
MARICOPA COUNTY BOARD OF SUPERVISORS
By:
Name:
Title:
ATTEST:
Clerk of the Board of Supervisors
Approved as to form am149fitent:
Date: C
./
T(746 2,e2
Date:
-7-
EXHIBIT A
(Legal Description of the Property)
THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 4,
TOWNSHIP 1 SOUTH, RANGE 2 EAST OF THE GILA AND SALT RIVER BASE AND
MERIDIAN, MARICOPA COUNTY, ARIZONA;
EXCEPT THE NORTH 18 ACRES; AND
EXCEPT THE EAST 45 FEET THEREOF.
MARICOPA COUNTY
RESOLUTION NO.
C-
A RESOLUTION OF THE BOARD OF SUPERVISORS OF MARICOPA COUNTY, PHOENIX,
ARIZONA (THE "COUNTY") AUTHORIZING EXECUTION ON BEHALF OF THE COUNTY, AN
ASSURANCE AGREEMENT AMONG THE COUNTY; AND ALL OTHER PROPERTY LIMITED
LIABILITY PARTNERSHIP, JEWELLAND, LLC AND MERITAGE HOMES OF ARIZONA, INC.
(HEREAFTER, THE "OWNER") REGARDING IMPLEMENTATION OF THE DEVELOPMENT
KNOWN AS THE ELEMENT ON EUCLID SUBDIVISION
WHEREAS, Maricopa County is a growing county with respects to population, and
expects population growth to continue in the foreseeable future, and
WHEREAS, a sizable portion of this population growth will occur in unincorporated areas
as a result of large master-planned communities that will include a significant number of residents
and various types of land uses; and
WHEREAS, the Board of Supervisors recognizes that it must exercise its authority to
accommodate growth in an efficient manner that protects County residents and taxpayers from
undue fiscal burdens; and
WHEREAS, pursuant to Arizona Revised Statues §11-821(C) the posting of an assurance
satisfactory to the County, ensuring the completion of necessary infrastructure, is required as a
pre-condition to the granting of an approval to subdivide property; and
WHEREAS, Owner owns certain real property in unincorporated Maricopa County
comprising a total of approximately 23.3 acres (the "Property"); and
WHEREAS, Owner represents and warrants that it is the fee title owner of the Property
and has an interest in the Property as described in Arizona Revised Statutes §11-1101 B; and
WHEREAS, County wishes to enter into an assurance agreement in form and substance
acceptable to the County with Owner (the "Assurance Agreement") for the subdivision known as
the Element on Euclid in accordance with ARS §11-821 to help ensure timely and efficient
development of infrastructure and services for future residents within the Property, and to help
minimize fiscal impacts to County residents and taxpayers;
WHEREAS, ARS §11-821 provides that the Board of Supervisors may regulate the
subdivision of lands within its corporate limits by requiring the posting of performance bonds or
other forms of assurances, including assurance agreements, necessary to ensure the installation
of required street, sewer, electric and water utilities; and drainage and flood control improvements
meeting minimum standards of design and construction; and
WHEREAS, the Board of Supervisors has agreed to accept from Owner in order to meet
such requirements an assurance in the form of the "Assurance Agreement".
NOW, THEREFORE, BE IT RESOLVED, the Board of Supervisors of Maricopa County
authorizes execution of the Assurance Agreement on behalf of the County.
EXECUTED this
Phoenix, Arizona.
day of
, 2020, by Maricopa County Board of Supervisors,
Chairman,
Board of Supervisors
ATTEST:
Clerk of the Board