The process undertaken by Treat Creekers Fairly (TCF) giving the town numerous opportunities to address and respond to residents’ grievances has provided necessary documentation to establish that the town is in default under Sec. 5.11 of the “Development/Annexation Agreement Between Town of Cave Creek And insert property owner name” (hereinafter referred to as “AA”).
After a comprehensive review of the submitted documentation to the law firm that wrote the AA, it was the law firm’s opinion that town officials never had any intention of complying with the AA and that the town is in violation of the AA for failing to comply with town ordinances, codes, and technical design guidelines. Based on this, it was also their opinion that the town’s failure/refusal to respond to the grievances of residents as required within the sixty-day (60) period after receipt placed the town in default under Sec. 5.11 of the AA.
Property owners in Area 96-1 are entitled to all available remedies under Arizona law. Those remedies can include an extension of the AA, restoration of the desert on Lehman parcel #1 to its natural state, and reimbursement to residents of attorney’s fees. For those who inquired, the remedy does not include de-annexation as Arizona State statutes allow de-annexations only within the first ten years.
During the consultation with the law firm, it was learned that the firm no longer does litigation work; however, they did recommend the name of a litigation lawyer for representation in the default claim against the town. Because there is no immediate time restriction for exercising any right to these remedies, and because it was felt that the town would continue to violate the AA until its expiration in 2022 thereby creating repetitive and costly litigation for residents, the discussion included options to pursue now while collecting donations to obtain remedies under the default.
One of the suggested options was to either hire a PR firm or do the work ourselves of creating media attention by using Twitter and other social media platforms to spread information. By doing it ourselves, all monies donated will be reserved to pursue our remedies under the default. (The attorney’s fees must be paid in advance of the litigation (hence “reimbursement”.)
In order to reimburse to donors the amount of their donation, the “Donate” button on the www.treatcreekersfairly.com website has been disabled because PayPal deducts a 3% fee from each donation. TCF will continue to accept donations via personal or business check at: Treat Creekers Fairly, Inc., POB 4071, Cave Creek, AZ 85327, or arrangements can be made for pick up. A record of all donations is being kept so please make sure your name and mailing address is legible.
The discussion also included the need to continue to monitor the activities on the Lehman property. TCF is asking that residents and neighbors continue to monitor the activities, take photos, and submit your findings and concerns to [email protected].
Every resident living east and west of the Creek benefits from the desert preservation and rural lifestyle protections under the AA. Even if you don’t live in Area 96-1, if there is an interest in your neighborhood for having a meeting to share ideas and discuss other options, a meeting can be scheduled. Email: [email protected] with your request.
If you would like to view and download the 26 page .pdf titled “Development/Annexation Agreement," please go to the www.treatcreekersfairly.com website.
The Default and Remedies provision in the AA is as follows:
“5.11. Default; Remedies. Failure or unreasonable delay by any party to perform any term or provision of this Agreement for a period of sixty (60) days after written notice thereof from another party shall constitute a default under this Agreement. The notice shall specify the nature of the default and the manner in which the default may be satisfactorily cured. In the event of a default under this Agreement by any party, the non-defaulting party shall be entitled to all remedies in both law and in equity, including, without limitation, specific performance and the right to perform the obligation(s) of which the defaulting party is in default and to immediately seek reimbursement from the defaulting party of all sums expended in order to cure such default, together with interest on all such sums from the date such sums are expended by the non-defaulting party for the purpose of curing the default to the date such sums are repaid in full.” [source: AA, “Agreement” § 5, ¶ 5.11, pg. 12].
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After a comprehensive review of the submitted documentation to the law firm that wrote the AA, it was the law firm’s opinion that town officials never had any intention of complying with the AA and that the town is in violation of the AA for failing to comply with town ordinances, codes, and technical design guidelines. Based on this, it was also their opinion that the town’s failure/refusal to respond to the grievances of residents as required within the sixty-day (60) period after receipt placed the town in default under Sec. 5.11 of the AA.
Property owners in Area 96-1 are entitled to all available remedies under Arizona law. Those remedies can include an extension of the AA, restoration of the desert on Lehman parcel #1 to its natural state, and reimbursement to residents of attorney’s fees. For those who inquired, the remedy does not include de-annexation as Arizona State statutes allow de-annexations only within the first ten years.
During the consultation with the law firm, it was learned that the firm no longer does litigation work; however, they did recommend the name of a litigation lawyer for representation in the default claim against the town. Because there is no immediate time restriction for exercising any right to these remedies, and because it was felt that the town would continue to violate the AA until its expiration in 2022 thereby creating repetitive and costly litigation for residents, the discussion included options to pursue now while collecting donations to obtain remedies under the default.
One of the suggested options was to either hire a PR firm or do the work ourselves of creating media attention by using Twitter and other social media platforms to spread information. By doing it ourselves, all monies donated will be reserved to pursue our remedies under the default. (The attorney’s fees must be paid in advance of the litigation (hence “reimbursement”.)
In order to reimburse to donors the amount of their donation, the “Donate” button on the www.treatcreekersfairly.com website has been disabled because PayPal deducts a 3% fee from each donation. TCF will continue to accept donations via personal or business check at: Treat Creekers Fairly, Inc., POB 4071, Cave Creek, AZ 85327, or arrangements can be made for pick up. A record of all donations is being kept so please make sure your name and mailing address is legible.
The discussion also included the need to continue to monitor the activities on the Lehman property. TCF is asking that residents and neighbors continue to monitor the activities, take photos, and submit your findings and concerns to [email protected].
Every resident living east and west of the Creek benefits from the desert preservation and rural lifestyle protections under the AA. Even if you don’t live in Area 96-1, if there is an interest in your neighborhood for having a meeting to share ideas and discuss other options, a meeting can be scheduled. Email: [email protected] with your request.
If you would like to view and download the 26 page .pdf titled “Development/Annexation Agreement," please go to the www.treatcreekersfairly.com website.
The Default and Remedies provision in the AA is as follows:
“5.11. Default; Remedies. Failure or unreasonable delay by any party to perform any term or provision of this Agreement for a period of sixty (60) days after written notice thereof from another party shall constitute a default under this Agreement. The notice shall specify the nature of the default and the manner in which the default may be satisfactorily cured. In the event of a default under this Agreement by any party, the non-defaulting party shall be entitled to all remedies in both law and in equity, including, without limitation, specific performance and the right to perform the obligation(s) of which the defaulting party is in default and to immediately seek reimbursement from the defaulting party of all sums expended in order to cure such default, together with interest on all such sums from the date such sums are expended by the non-defaulting party for the purpose of curing the default to the date such sums are repaid in full.” [source: AA, “Agreement” § 5, ¶ 5.11, pg. 12].
[email protected]
Please post your comments, opinions, and suggestions. Just remember: be nice or be deleted.
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