HomeMy WebLinkAbout150521P2015 Legislative Overview
League of Arizona Cities and Towns
Session at a Glance
•Adjourned sine die on April 3, 2015 (81st day)
•General Effective Date: July 3, 2015
•1,163 bills introduced
•344 bills sent to the Governor (approx. 30%)
•324 bills signed
•20 vetoes
Legislative Focus
•State’s rights
•Common Core
•Elections/campaign finance/ballots
•Breweries
•Tesla/transportation sharing services
Session Challenges
•New Governor, Leadership, and House
members
•Statutory punishments
–“Matter of statewide concern”
•Limited local government experience
•Budget deficit
Session Challenges, cont.
•Local Government Preemption
–Growing trend; several attempts to override local
control
–Able to defeat large economic impact measures
–Factual education the foundation of our success
Laws Passed
TPT/Budget Bills Passed
• SB 1446 TPT reform; contractors
• SB 1471 revenue; budget reconciliation; 2015-
2016
League Resolutions Passed
•H2214 majority vote calculation; municipal
elections
Preemptions Passed
•SB 1072 local planning; residential housing;
prohibition
•SB 1079 solid waste collection; multifamily
housing
•SB 1342 responsibility of payment; utility
services
•SB 1241 auxiliary containers; regulation;
Failed Bills
League Resolution Failed
•HB 2324 intergovernmental agreements;
public agency indemnification
Failed Preemptions
•HB 2254 municipal tax exemption; residential
lease
•HB 2570 municipalities; vegetation
requirements; prohibition
•SB 1167 photo radar; prohibition
Failed Gun Bills
•HB 2320 firearms; permit holders; public
places
•HB 1291 firearms; state preemption; penalties
•SB 1330 prohibited activities; second
amendment violations
Failed TPT Bills
•SB1120 fine art; TPT; exemption
•SB 1133 TPT; municipalities; customer refund
claims
•HB 2419 prohibited transaction fees;
municipalities
Future Challenges
•Budget – school funding, HURF
•Local decision making preemption
•Regulatory reform/“small” government
•Economic development
•TPT Local Authority and State Transition
•Elections
League Services:
Conferences and Trainings
•Annual Conference
–August 18 – 21, Tucson
–Largest gathering of local elected and appointed
municipal officials in the state
–Most important municipal event of the year
–Premier education and networking opportunity
for local officials, businesses and state officials
League Services:
Conferences and Trainings
•Professional Development Classes
–Classes and trainings on a variety of topics,
including:
•Planning and Zoning Basics
•Parliamentary Procedures
•Public Records/Open Meetings
•Ethics for City Officials
•Impact Fees
•Newly Elected Officials Training
•Grant Writing
League Services:
Technical Assistance
•Information and Inquiry Services
•Legal Services and Opinions
•Model Ordinances and Codes
•Affiliate Groups
–ACMA, GFOAz, AMCA, ACAA
•Pooled/Endorsed Services
–AMRRP, US Communities, American Legal, Service
Line Warranty
League Services:
Communication and Education
•Website: www.azleague.org
–Content rich
–Offers latest information for cities and towns
•E-Newsletter “Connection”
–Monthly League newsletter featuring municipal
news
•Arizona City & Town
–Bi-annual magazine
Questions?
•1820 W. Washington Street, Phoenix, AZ
85007
•www.azleague.org
•602-258-5786
• @AZCities, @AZCitiesWork
• League of Arizona Cities and Towns
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2385421.1
RESOLUTION 2015-26
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING AN AMENDMENT TO THE
INTERGOVERNMENTAL AGREEMENT WITH MARICOPA COUNTY FOR
ANIMAL CARE AND CONTROL SERVICES.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. The First Amendment to the Intergovernmental Agreement with Maricopa
County for Animal Care and Control Services (the “Amendment”) is hereby approved in
substantially the form and substance attached hereto as Exhibit A and incorporated herein by
reference.
SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to cause the execution of the Amendment 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,
Arizona, May 21, 2015.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
Linda M. Kavanagh, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Kenneth W. Buchanan, Town Manager Andrew J. McGuire, Town Attorney
2385421.1
EXHIBIT A
TO
RESOLUTION 2015-26
[Amendment]
See following page.
AMENDMENT TO INTERGOVERMENTAL AGREEMENT (IGA)
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
MARICOPA COUNTY ANIMAL CARE & CONTROL
(C-79-14-033-3-01)
RECTIALS
A. TOWN and COUNTY are parties to that certain Intergovernmental Agreement dated on or about July 1,
2013 for the provision of contract field services.
B. The parties now mutually desire to amend the IGA to extend the expiration date of the original term.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other valuable considerations, the parties agree
to amend the IGA as follows:
1. The expiration date of the IGA is hereby modified to June 30, 2018. The effective date of this Amendment
is June 30, 2015. This Amendment is subject to termination pursuant to the provisions of A.R.S. § 38-511.
2. The foregoing paragraphs contain all of the changes made by this Amendment. All other terms and
conditions of the IGA shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have signed this Amendment
Town of Fountain Hills Maricopa County Board of Supervisors
By: By:
Kenneth Buchanan, Town Manger Chairman
Attest: Attest:
By: By:
Bevelyn J. Bender, Town Clerk Clerk of the Board
This Amendment has been reviewed pursuant to A.R.S. § 11-952 et seq. by the undersigned attorney, who
has determined that it is in proper form and is within the power and authority granted under the laws of
the State of Arizona.
By: By:
Andrew J. McGuire, Town Attorney Attorney to the Board of Supervisors
April 25, 2015
Honorable Mayor Kavanagh
Town Council Members
Town of Fountain Hills
Fountain Hills, AZ 85268
Dear Ladies & Gentlemen,
The Public Art Committee of the Fountain Hills Cultural & Civic Association would like to
propose the donation of a bronze sculpture of a dachshund entitled “So Good to See You” by Joy-
Kroeger-Beckner. The dimensions are approximately 16” high x 15” long x 12” deep.
This piece has an insured value of $6,000. It is being donated by Richard & Doris Dale of
Fountain Hills.
We are recommending the piece be placed in the Centennial Circle near the “Girl with Kitten”.
This acquisition has been approved by the Public Art Committee and the Board of Directors of the
Fountain Hills Cultural & Civic Association.
A photo of this piece has been sent to you in a separate email.
Very Truly Yours,
Sandi Thompson
Sandi Thompson
Chair, Public Art Committee
FHCCA
Arizona’s Medical Marijuana
Act/Proposition 203
Dispensaries –
Nature’s AZ Medicines
•Two of 99 ADHS Licensed Dispensaries
•Opened July 2013
Phoenix – On W. McDowell ¼ block West of
the I-17 Exit
Fountain Hills – At Colony and Enterprise
Drive
Two Minutes of
Ancient History
Cannabis is a flowering plant that has been well
documented to have been on this earth for well
over 4,000 years.
Cannabis serves many purposes:
Hemp is the fiber component of the Cannabis
plant which has long been used for making paper,
clothing.
Seeds and seed oils have been used medicinally
in many civilizations including Europe and China
for thousands of years.
One Minute of
Ancient History
1823 Queen Victoria's personal physician, Sir
Russell Reynolds prescribed cannabis for her
menstrual cramps. He wrote in the first issue of
The Lancet Journal “When pure and
administered carefully, [it is] one of the most
valuable medicines we possess.”
Medical cannabis was part of the American
Pharmacopoeia until 1942. During that time
European and American journals of medicine
published over 100 articles on therapeutic uses of
cannabis.
U.S History Homework Assignment - Should
Grandma Smoke Pot? - NaturesMedicines.com
William Randolph Hearst – “Reefer Madness”
Campaign Against Marijuana
Industrial Lobby Prevailed – Paper Industry, DuPont
Chemical (nylon rope), Big Pharma, and Alcohol
Medical Research
Developments
FDA Approved Studies – 2009-Present
NIDA Roadblock lifted– Fed Cannabis -Ole Miss-
CNN’s Weeds 1-2-3, Neurosurgeon, Sanjay Gupta
Recent Government Announcements: Cole
Memorandum
Recent Banking Directives & Congress
Oils, Tinctures, and Concentrates
Hundreds of families have moved to Colorado to access a cannabis strain
known as Charlottes Webb. This strain has been proven to dramatically
reduce seizures in some epileptic children. Administered as an oil, the
medicine is high in a chemical called CBD and low in THC, the component
that produces a psychoactive effect or what is commonly described as
feeling "high." We have the capabilities and genetics to produce these high
CBD medications in Arizona as well.
NFL commissioner Roger Goodell, said the league is following
the work of Israeli researchers who are exploring cannabis as a
potential treatment for traumatic brain injury. In 2003, along
with two colleagues, American Nobel Laureate Julius Axelrod,
obtained a patent on the drug for its anti -inflammatory and
neuroprotective properties.
MMJ is Currently Legal for Use
and/or Possession in:
Canada
Israel
Spain
France
India
Australia
Iran
Switzerland
Uruguay
MMJ is Currently Decriminalized
for Use and/or Possession in:
•Argentina
•Belgium
•Cambodia
•Columbia
•Costa Rico
•Croatia
•Czech Republic
•Ecuador
•Estonia
•Italy
•Jamaica
•Mexico
•Nepal
•Netherlands
•Peru
•Portugal
•Russia
Proposition 203/AMMA
The AMMA became Arizona law in 2010
Challenged by numerous Lawsuits and
Appeals
Dispensaries not opened until 2013/2014
Over 68,000 MMJ ADHS Patients &
Caregivers in AZ as of February 28th, 2015
CDC Youth Risk Behavior Surveys
Marijuana Use Among Arizona Teens
AMMA Vote Passed in 2010
Dispensaries Opened in 2013
CDC Youth Risk Behavior Surveys
Marijuana Use - Teens Across the U.S.
AZ Medical Marijuana Passed in 2010
ADHS Dispensaries Opened in 2013
Percentage Decline
Youth Risk Behavior Surveys
2009 (Pre-AZ Medical Marijuana Act)
2013 (Dispensaries Open across Arizona)
Percentage %
In the United States, Severe and Chronic Pain is the
most common condition for which medical
cannabis is prescribed (70% in Arizona). Studies
show the drug is especially effective against
neuropathic pain, a type of pain involving nerve
damage. Marijuana is less habit-forming than
opiate drugs and carries virtually no risk of a fatal
overdose. 16,000 die annually from prescription
drug opiates, 1,000 annually in AZ.
Qualifying Conditions
ADHS Approved Use
Severe and Chronic Pain
Nausea
Cancer
Crohn’s Disease
AIDS/HIV
Hepatitis C
Possible Patient
Benefits
Analgesic/Anti-inflammatory
Appetite Stimulant
Chemotherapy Side effects
Helps cramping & diarrhea
Fatigue, appetite, Depression
Fatigue, appetite, Depression
Qualifying Conditions
(continued)
ADHS Approved Use
Cachexia/Wasting
Syndrome
Muscle Spasms
Seizures
Glaucoma
Multiple Sclerosis
Alzheimer’s
Possible Patient
Benefits
Weight Gain
Immediate Spasm/Pain Relief
Decline in Seizures
Reduces Pressure & Pain
Pain Relief & Sleep Aid
Neuroprotection
MMJ Patient Survey
Science/The Human Body
Most pharmaceutical agents work by
interfering with cell function, blocking
enzymes, up-regulating or down-regulating
receptors or through suppression, etc...
Naturally, we have our own receptors
directly stimulated by plant elements found
in our environment (ex: nicotine, opium,
cannabis).
When these receptors are triggered, we
are asking the body to do what it already
knows how to do. We are not trying to
force the body to respond.
The Human Body and Opioid
Humans have opioid receptors that are directly
responsive to drugs derived from the Opium poppy
flower (Papaver somniferum) (ex: opium, morphine,
oxycodone, dilaudid, heroin).
This knowledge has been used to treat pain and
cause euphoria using this plant for thousands of years,
and still today.
Opium Receptors are found in brain, spine and
digestive tract. Unfortunately they are very addictive,
have many side effects, and over dosing can be fatal.
Similarly humans have cannabinoid receptors that are
part of our Endocannabinoid System in the brain that
has a physiologic role in appetite, pain-sensation,
mood, and memory.
The Human Body’s
Endocannabinoid System
CB1 receptor discovered in the 1980's:
Found in brain, CNS, lungs, liver, and kidney
CB2 receptor discovered in 1990's:
Found in immune system, blood stem cells (B cells, NK
cells, and T cells)
Non CB1 or CB2 receptors that are stimulated by
cannabis also found in endothelial cells and CNS, and
other receptors that regulate blood pressure and
inflammation.
Activation of this system has many beneficial effects:
see Cannabinoid/Terpenoid Education cards.
Including:
Modulate immune function, cell protection,
neuroprotective antioxidant, body temperature
regulation and more.
Negative Effects? Proper
Dosing is Key.
Negative Effects of Cannabis - In large dosages:
Auditory and visual hallucinations, euphoria, anxiety,
drowsiness.
In the British Journal of Psychiatry (Feb. 2001) and in
EVERY other article I read reported:
No fatal overdoses associated with cannabis. No deaths.
Unlike the people dying every 19 minutes from
prescription drug overdose in the U.S.
CNN Chief Medical Correspondent Dr. Sanjay Gupta
agrees that “cannabis does not have a high
potential for abuse” and “there are many legitimate
medical applications”.
Research to Support Qualifying
Conditions for Medical Marijuana
According to Pub Med. Central there are over
20,000 published studies or reviews in scientific
literature on the cannabis plant, half of those
published in last 5 years.
www.normal.org/competent/200/recent-
research
Multiple Sclerosis and Extract of Cannabis: results
of the MUSEC trial – July, 2012:
http://www.ncbi.nlm.nih.gov/pubmed/22791906
Cannabis extracts were found to significant reduce
muscle stiffness and pain in patients with multiple
sclerosis, according to new study published in the
Journal of Neurology, Neurosurgery & Psychiatry.
MMJ Research to Support
Qualifying Conditions
American College of Physicians Official Position Paper on
Medical Marijuana – 2008:
http://www.acponline.org/advocacy/where_we_stand/other_is
sues/medmarijuana.pdf
The American College of Physicians in 2008 wrote an official
position paper on medical marijuana, claiming that there is
solid research to indicate that marijuana is effective medicine,
and urging that we do further research.
Marijuana Use and Mortality – April, 1997:
http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.87.4.58
5
In a 1997 study funded by the National Institute on Drug Abuse
(NIDA) and published in the American Journal of Public Health,
it was found that no degree of marijuana use had any effect on
mortality, continuing with the known fact that cannabis is a
non-lethal substance.
Dr. Suzanne Sisley, M.D. Board Certified in both Internal
Medicine and Psychiatry
New National Pain Foundation Research
1,300 patients with the chronic pain disorder
Fibromyalgia rated Medical Marijuana with
the only three drugs approved by the FDA for
Fibromyalgia: Savella, Lyrica and Cymbalta.
Patient Care Guide
Patient Care Guide for the Responsible Use
of Medical Marijuana – Handout
Medication Tracking – Sample Use
Introduction and Review of MMJ basics
Sativas & Indicas/THC & CDB Cannabinoids
Methods of Consumption
Steps to Qualify for ADHS MMJ Card
If you think medicinal marijuana may be the right
choice for you, here are the steps to take:
Contact a physician that is certified to do the
medical marijuana certification.
You Must provide:
Name, date of birth, address, telephone
number and email address.
Records from within the last 12 months that
record your health history and diagnosis of
the current issue you are seeking MMJ to
treat.
Records could be from: chiropractor, M.D.
D.O., N.D., surgeon, hospice...
Medical Records Must Confirm
an Arizona Qualifying Condition
Stand Alone Conditions:
Acquired immune
deficiency syndrome (AIDS)
Agitation of Alzheimer's
disease
Amyotrophic lateral
sclerosis (ALS)
Cancer
Crohn's disease
Glaucoma
Human immunodeficiency
virus (HIV)
Hepatitis C
Conditions Caused by a
Chronic or Debilitating
Disease:
•Severe and Chronic Pain
•Cachexia or Wasting
Syndrome
•Severe nausea
•Seizures including those
characteristic of Epilepsy
•Sever or Persistent Muscle
Spasm including those
characteristic of Multiple
Sclerosis
Steps Necessary to Qualify
Patient must contact a certified medical marijuana
physician and provide health history records, including
a diagnosis of a current medical issue.
If the Patients diagnosis meets the criteria for using
MMJ, the certified physician will:
Review medical records
Perform a physical exam
Complete a AZ Pharmacy Board Inquiry
Fill out the Medical Marijuana Physician Certification
Form
Patient must then apply on line to AZ Department of
Health Services within 90 days of the evaluation.
If patient requires a care giver, he/she must be
designated during the application process.
If the applicant is under 18, they require two (2)
physician certifications done within 90 days.
Online ADHS MMJ Card
Application Process
Required items for online application:
Physician Cert. Form completed
Current Drivers License, Passport, State ID
Current (last 90 days) Photo (face only)
Signed Attestation Form (ADHS Website)
Credit or Debit card -$150/$75 SNAP
Documents must be scanned into computer (PDF or JPEG) to
attach to web form electronically.
Must have email address to receive ADHS notices for
acceptance, denial, or for requests for information.
Typically patients receive State MMJ Cards within 1-2 weeks.
Access to Medicines – Fountain
Hills vs. Maricopa County
(Hours Per Week Open)
Medical Marijuana Patients Cannot
Simply “Stock Up” and Require Daily
Access to their Meds
•The Trichomes that hold cannabinoids in the
whole plant material dry and oxidize over time,
making the cannabis medicine less potent and
harsh to use.
•The dry climate of Arizona exacerbates this
problem.
•Humidors are expensive and difficult to
maintain. Ask any cigar aficionado and they will
tell you that even a good humidor requires
almost daily refilling and adjusting.
•Many ADHS Patients use MMJ infrequently; only
when needed to relief sporadic symptoms.
Disparity of Access = Possible
Undesirable Consequences
1.Maintain Status Quo – Not an Option -Federal
Tax Code 280 E dictates that we generate
enough cash flow to pay an effective tax rate
of 65-70% to the IRS. With reasonable patient
access, an estimated $65,000 in Sales Tax
Revenue for the community of Fountain Hills
could be generated by this non-for-profit
corporation.
2.Legal Remedy via Superior Court – Prejudicing
local access to Arizona’s regulated medical
program with overly restrictive patient access is
illegal.
Disparity of Access for ADHS
MMJ Patient Card Holders
•Current hours for Nature’s Medicines in Fountain
Hills - 9AM-7PM M-F, & Sat 9AM-3PM – Just 51
Total Hours Weekly.
•Current Average for Maricopa County AHDS
Licensed Dispensaries 64.2 or 9.2 hours daily
•Requested 8AM to 10PM Mon-Sun – 98 Hours
•Proposed Compromise -
9AM to 7PM Monday - Sunday = 70 Hours
•78% of the existing access provided to CVS &
Walgreens in Fountain Hills, AZ (87 Hours)
9700 N. Saguaro Blvd
The CONCEPT PLAN proposes a 134 suite Assisted Living Facility at 9700 N. Saguaro
Blvd .
The HEMINGWAY PAD (5.74 acres) modifies the existing C-1 zoning on the site to
accomplish the following:
• Allow a 3 foot fill waiver on a portion of the Assisted Living building #6 backing on
Saguaro Blvd. There is a swale in the middle of the building.
•The height allowance under C-1 zoning is 25 feet. All houses on site will be a maximum
23’ 6” in height. The applicant is requesting that the height be based on the
finish floor elevation rather than on the existing grade.
•The Abandonment of the Alternative Hillside Preservation Agreement for the Trevino
Business Center Project (2003).
•The Abandonment of the HPE which was recorded with AHP Agreement.
C-1 zoning does not have HPE requirements.
•Special Use Permit for an Assisted Living Use in a C-1 Commercial District.
Planning & Zoning Commission
Approve rezoning the property at 9700 N. Saguaro Blvd from C-1 to
HEMINGWAY PAD for the purpose of allowing a 134-suite Assisted
Living/Independent Living Development named “The Hemingway”.
Approve terminating the Alternative Hillside Protection Agreement
Approve abandoning the Hillside Protection Easements
As presented and subject to the 12 stipulations outlined in the staff report.
Staff:
Approve the Hemingway PAD, Agreement Termination, & Hillside
Protection Easement abandonments.
As presented and subject to the stipulations outlined in the staff report with an
amended stipulation #12 in order to require compliance with the Public Art Requirements.
Recommendations:
2367433.2
WAIVER OF CLAIMS FOR DIMINUTION OF VALUE
UNDER ARIZ. REV. STAT. §§ 12-1134 – 1136
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ROYAL BUSINESS BANK
THIS WAIVER OF CLAIMS FOR DIMINUTION OF VALUE UNDER ARIZ. REV.
STAT. §§ 12-1134 - 1136 (this “Waiver”) is made ___________, 2015, between Royal Business
Bank, a California corporation (the “Owner”) and the Town of Fountain Hills, an Arizona
municipal corporation (the “Town”), regarding the approximately 5.74-acre parcel of real
property located along Trevino Drive between Saguaro Boulevard and Berkemo Drive, in
Fountain Hills, Arizona (the “Property”), as more fully described and depicted on Exhibit A
attached hereto and incorporated as if fully set forth herein.
1. Waiver of Claims Related to the Rezoning. Owner (i) is the owner of all right,
title and interest in the Property and (ii) on behalf of itself and all other parties having an interest
in the Property, intends to encumber the Property with the following agreements and waivers:
The Owner agrees and understands that the Town is entering into this Waiver in conjunction
with that certain approval for rezoning of the Property, Case # Z2015-01 (the “Rezoning”) in
good faith and with the understanding that, if the Town approves the Rezoning, it will not be
subject to a claim for diminished value of the Property from the Owner or other parties having an
interest in the Property. Owner agrees and consents to all the conditions imposed as part of the
ordinance Rezoning the Property (the “Rezoning Ordinance”), including all stipulations adopted
by the Council of the Town of Fountain Hills (the “Town Council”) and, by signing this Waiver,
hereby waives any and all claims, suits, damages, compensation and causes of action the Owner
may have now or in the future under the provisions of ARIZ. REV. STAT. §§ 12-1134 through and
including 12-1136 (but specifically excluding any provisions included therein relating to eminent
domain) and resulting solely from actions relating to the Rezoning. Owner acknowledges and
agrees that any stipulations imposed by the Town Council as part of the Rezoning Ordinance will
not result in a reduction of the fair market value of the Property as defined in ARIZ. REV. STAT. §
12-1136. The Owner acknowledges that additional stipulations may be imposed by the Town
Council, in its sole discretion, prior to approval of the Rezoning. Owner agrees and understands
that its waiver of claims as set forth in this Waiver shall be deemed to extend to cover any
changes to the Rezoning Ordinance and all stipulations to the Rezoning Ordinance approved by
the Town Council unless, not later than three business days following such Town Council
approval, Owner notifies the Town, in writing, of its disagreement with such stipulation(s). In
the event that Owner timely notifies the Town of such disagreement, Owner shall not be deemed
to have waived claims with respect to only the stipulations imposed or revised by the Town
Council prior to approval of the Rezoning Ordinance; provided, however, that if Owner does not
submit a separate waiver of such claims, in a form acceptable to the Town, prior to close of
business on the fifth business day following approval of the Rezoning Ordinance, then the Town
may, after proper notice and hearing, rescind the Rezoning Ordinance, and if rescinded by the
Town Council acting in its sole discretion, this Waiver shall act as a bar to a claim for
diminished value based upon the rescinded Rezoning Ordinance. The foregoing waiver of
2367433.2
2
claims shall not be effective and shall be of no further force and effect with respect to the
Rezoning in the event the Town Council disapproves the Rezoning Ordinance.
2. Entire Agreement; Modification. This Waiver, any exhibits attached hereto, and
any addenda, collectively constitute the entire understanding and agreement of the Owner and
the Town and shall supersede all prior agreements or understandings between the Owner and
Town regarding waiver of claims pursuant to ARIZ. REV. STAT. § 12-1134 et seq. relating to the
Property with respect to the Rezoning. This Waiver may not be modified or amended except by
written agreement by the Owner and Town.
3. Applicable Law; Cancellation. This Waiver is entered into in Arizona and will be
construed and interpreted under the laws of the State of Arizona. This Waiver is subject to the
cancellation provisions of ARIZ. REV. STAT. § 38-511.
4. Recording; Waiver Runs With Land. Within ten days after the execution of this
Waiver, the Town Clerk shall file the Waiver in the Official Records of the County Recorder’s
Office, Maricopa County, Arizona. This Waiver runs with the land and is binding upon all
present and future owners of the above-referenced Property.
5. Owner Authority. The Owner warrants and represents that it is the owner of all
right, title and interest to the Property, and that no other person has an ownership interest in the
Property. The person(s) who sign on behalf of Owner personally warrant and guarantee to the
Town they have the legal power to bind the Owner to this Waiver.
[SIGNATURES ON FOLLOWING PAGES]
2367433.2
3
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of the date
and year first set forth above.
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Kenneth W. Buchanan, Town Manager
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On _________________, 2015, before me personally appeared Kenneth W. Buchanan,
the Town Manager 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 he
claims to be, and acknowledged that he signed the above document.
Notary Public
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
2367433.2
EXHIBIT A
TO
WAIVER OF CLAIMS FOR DIMINUTION OF VALUE
UNDER ARIZ. REV. STAT. §§ 12-1134 – 1136
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ROYAL BUSINESS BANK
[Legal Description and Map of the Property]
See Following Pages.
2367433.2
LEGAL DESCRIPTION
That portion of the South half of the Northwest quarter and the North half of the Southwest
quarter of Section 26, Township 3 North, Range 6 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona, more particularly described as follows:
Commencing at the monument line intersection of Shea Boulevard and Saguaro Boulevard from
which the West quarter corner of said Section 26 bears North 58 degrees 04 minutes 18 seconds
West, a distance of 1388.31 feet and also from which a Maricopa County Highway Department
Brass Cap Monument for P.O.C. 243-83.30, 22 feet RT. Bears North 50 degrees 10 minutes 58
seconds West, a distance of 724.56 feet;
Thence North 42 degrees 50 minutes 00 seconds East along the centerline of Saguaro Boulevard,
a distance of 775.00 feet;
Thence North 47 degrees 10 minutes 00 seconds West, a distance of 55.00 feet to the
Northwesterly right-of-way line and the POINT OF BEGINNING, said point also being the
Southeast corner of lot 6, Block 4, FOUNTAIN HILLS FINAL PLAT NO 403-B;
Thence South 42 degrees 50 minutes 00 seconds West along said right-of-way line, a distance of
330.45 feet to the beginning of a tangent curve being concave Northerly and having a radius of
20.00 feet;
Thence departing from said right-of-way and along the arc of said curve through a central angle
of 87 degrees 25 minutes 23 seconds and an arc length of 30.52 feet to a point of reverse
curvature, said point being on the Northeasterly right-of-way of a road being 50.00 feet in width
and being more commonly known as Trevino Drive, said point also being at the beginning of a
curve being concave Southerly and having a radius of 425.00 feet and a radial line passing
through said point bears North 40 degrees 15 minutes 23 seconds East;
Thence along said right-of-way and along the arc of said curve through a central angle of 44
degrees 49 minutes 23 seconds and an arc length of 332.48 feet;
Thence South 85 degrees 26 minutes 00 seconds West, a distance of 111.13 feet to the beginning
of a tangent curve being concave Northerly and having a radius of 175.00 feet;
Thence along the arc of said curve through a central angle of 42 degrees 51 minutes 31 seconds,
and an arc length of 130.90 feet to a point of reverse curvature, a radial line passing through last
said curve bears South 38 degrees 17 minutes 31 seconds West, said reverse curve being concave
Southerly and having a radius of 7047.49 feet;
Thence along the arc of said curve through a central angle of 00 degrees 58 minutes 12 seconds
and an arc length of 119.30 feet to a point of reverse curvature, a radial line passing through said
point bears North 37 degrees 19 minutes 19 seconds East, said reverse curve being concave
Easterly and having a radius of 20.00 feet;
2367433.2
Thence along the arc of said curve through a central angle of 89 degrees 35 minutes 41 seconds
and an arc length of 31.27 feet to a point on the Easterly right-of-way line of Burkemo Drive,
said point also being on the Easterly line of said FOUNTAIN HILLS FINAL PLAT NO. 403-B,
North 36 degrees 55 minutes 00 seconds East, a distance of 69.89 feet from the Southeasterly
corner of said FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence North 36 degrees 55 minutes 00 seconds East, a distance of 260.77 feet to the beginning
of a tangent curve being concave Westerly and having a radius of 230.00 feet;
Thence along the arc of said curve through a central angle of 15 degrees 21 minutes 52 seconds
and an arc length of 61.68 feet to a point of cusp with a curve concave to the Northeast and
having a radius of 20.00 feet a radial line passing through said point bears North 68 degrees 26
minutes 52 seconds West;
Thence Southeasterly along the arc of said curve through a central angle of 81 degrees 57
minutes 08 seconds and an arc length of 28.61 feet to a point on the Southerly line of said
FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence continuing along said line South 60 degrees 24 minutes 00 seconds East, a distance of
12.75 feet to the beginning of a tangent curve being concave Northeasterly and having a radius
of 185.00 feet;
Thence along the arc of said curve through a central angle of 28 degrees 20 minutes 00 seconds
and an arc length of 91.48 feet;
Thence South 88 degrees 44 minutes 00 seconds East, a distance of 99.71 feet to the beginning
of a tangent curve being concave Southerly and having a radius of 715.00 feet;
Thence along the arc of said curve through a central angle of 41 degrees 34 minutes 00 seconds
and an arc length of 518.72 feet to a point of reverse curvature, said curve being concave
Northerly and having a radius of 20.00 feet, a radial line passing through said point bears South
42 degrees 50 minutes 00 seconds West;
Thence along the arc of said curve through a central angle of 90 degrees 00 minutes 00 seconds
and an arc length of 31.42 feet to the POINT OF BEGINNING.
“The Hemingway “
At Fountain Hills
“The world is a fine place and
worth fighting for and I hate
very much to leave it”.
Earnest Hemingway
The applicant and developer of the property Dan Kauffman, of Kauffman Real Estate
and Development is a local land development company based out of Fountain Hills for
over 20 years. The developer Dan Kauffman has been volunteering in the community
with local kids sports, involved in helping the veterans in many ways, and in many fund
drive projects. He has developed over 250 condominiums, commercial projects including;
Charter Schools, preschools, commercial office buildings, apartments and many
community subdivisions including Active Adult Communities and Family Oriented
Communities of over 1,000 homes. Kauffman Real Estate and Development strives at
planning developments that are sensitive to key locations with designs that are tailored to
local communities, thus ensuring superior value to local project opportunities.
Site Lighting
The dramatic site lighting will comply with The Town of Fountain Hills lighting
ordinance. Because of the numerous amenity areas, there will be sufficient lighting
for safety and still allow the residence to enjoy the stars and outdoor activities.
IMPACT ON FOUNTAIN HILLS
•Local Jobs -- 55
•Development fee -- $121,000
•Rental tax -- $100,000+
•Property tax for Fountain Hills School District
Visitors and residents will dine in area restaurants and shop at local merchants.
A quality AL/IL will have a tremendous impact on the quality of life for the residents at
“The Hemingway” at Fountain Hills.
“The Hemingway” a Sustainable AL/IL Community
Listed below is a format of sustainable design incorporated into “The Hemingway” at
Fountain Hills.
•Landscape low water desert plants
•Dual pane vinyl windows
•Efficient AC units
•Recycle
•Energy Star Appliances
•Low VOC paint / adhesives
•Lighting CFL / LED
•Garden area
•Cool roofs
•Increased insulation and improved installation
•Low flow water closets
•Low water plumbing fixtures
•Operation & Maintenance manuals for employees
•Automatic humidity sensor and fan control in all bathrooms
•Auto lighting sensors in baths, closets and specialty rooms
The developer will create an environment for residents to support the community’s
commitment to environmental stewardship and integrate sustainability into the
lifestyle of the community. This will be a unique one of a kind sustainable AL/IL
community.
“Before you act, listen. Before you react, think. Before you spend, earn.
Before you criticize, wait. Before you pray, forgive. Before you quit, try.”
Earnest Hemingway
2366929.2
ORDINANCE 15-05
AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN
HILLS OFFICIAL ZONING DISTRICT MAP FOR APPROXIMATELY 5.74
ACRES GENERALLY LOCATED AT THE NORTHWEST CORNER OF
SAGUARO BOULEVARD AND TREVINO DRIVE AS SHOWN IN CASE
NO. Z2015-01, FROM C-1 (NEIGHBORHOOD COMMERCIAL) TO
HEMINGWAY PAD.
WHEREAS, the Mayor and Council of the Town of Fountain Hills (the “Town
Council”) desires to amend the Town of Fountain Hills Official Zoning District Map (the
“Zoning Map”) pursuant to ARIZ. REV. STAT. § 9-462.04, to change the zoning description for a
5.74 acre parcel of real property from C-1 (Neighborhood Commercial) to Hemingway PAD (the
“Zoning District Map Amendment”); and
WHEREAS, the Zoning District Map Amendment proposed by this ordinance is
consistent with the Fountain Hills General Plan 2010 as amended; and
WHEREAS, all due and proper notices of public hearings on the Zoning District Map
Amendment held before the Town of Fountain Hills Planning and Zoning Commission (the
“Commission”) and the Town Council were given in the time, form, substance and manner
provided by ARIZ. REV. STAT. § 9-462.04; and
WHEREAS, the Commission held a public hearing on April 23, 2015 on the Zoning
District Map Amendment, after which the Commission recommended approval; and
WHEREAS, the Town Council held an additional public hearing regarding the Zoning
District Map Amendment on May 21, 2015.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. The recitals above are hereby incorporated as if fully set forth herein.
SECTION 2. The 5.74 acre parcel of real property generally located at the northwest
corner of Saguaro Boulevard and Trevino Drive, as more particularly described and depicted on
Exhibit A, attached hereto and incorporated herein by reference, is hereby rezoned from C-1
(Neighborhood Commercial) to Hemingway PAD, subject to (i) the Town’s adopted codes,
requirements, standards and regulations for property zoned C-1, except as specifically modified
by the Hemingway PAD document file stamped 2366332.5, as included in case no. Z2015-01
and (ii) the time condition set forth in Section 3 below.
SECTION 3. Approval of the Hemingway PAD zoning is conditioned on development
of the project commencing within three years of the effective date of this Ordinance, subject to
the following:
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2366929.2
1. Prior to the expiration of the three-year time condition, the property owner or
authorized representative may submit an application for an extension to the Town.
Submittal of an application for extension of the three-year time condition does not
toll the running of the time condition. Should the three-year time condition expire
between the submittal of an application for a time extension and the public
hearing on the requested extension, the Hemingway PAD shall be subject to
reversion as set forth below. Upon receipt of a request for extension, the Town’s
Zoning Administrator shall submit the request to the Town Council for
consideration at a public hearing held as set forth below.
2. The Town Council shall, after notices via certified mail to the property owner and
authorized representative have been provided at least 15 days prior to the date of
the scheduled hearing, hold a public hearing on the extension request. The Town
Council may, in its sole discretion, grant an extension of the time condition,
subject to the limitation on the number of extensions set forth below. If the public
hearing is held after expiration of the time condition, the Town Council may also,
at that public hearing, take action to revert the zoning on the property to its prior
zoning classification.
3. In the event the project has not commenced within the three-year time period and
no request for time extension has been received as provided above, the Zoning
Administrator may submit the Hemingway PAD to the Town Council for
consideration of reversion, pursuant to the hearing procedure set forth below.
4. The Zoning Administrator shall notify the property owner and authorized
representative by certified mail of the Town Council’s intention to hold a hearing
to determine compliance with the three-year time condition, and to revert the
zoning on the property to its former classification if the condition is determined
by the Town Council to have not been met. All such notices shall be made at least
15 days prior to the date of the scheduled hearing. The Town Council may, in its
sole discretion, either grant an extension of the time condition, subject to the
limitation on the number of extensions set forth below, or revert the zoning on the
property to its prior zoning classification.
5. The Town Council may grant up to four one-year extensions of the time
condition.
6. Following the commencement of the project, the Zoning Administrator shall
monitor the project to ensure it continues to completion. Upon the Zoning
Administrator’s initial determination that the project is not being actively pursued,
no further review or approval of any project site plan or plat shall occur until it is
determined that good cause exists for delay in the construction of the project.
Should the project fail to proceed, a public hearing shall be held by the Town
Council to determine the cause of the delay. At the public hearing on the matter, if
the Town Council determines that there is not good cause for the delay, it may
3
2366929.2
impose additional conditions on the Hemingway PAD to ensure compliance. If
such additional conditions are not met, the Zoning Administrator may set the
matter for public hearing, according to the process set forth in subsection above,
on a possible reversion of the Hemingway PAD zoning. If the Town Council
determines that good cause exists, it may amend the Hemingway PAD
development schedule.
7. For purposes of this Section, the terms “commence,” “commencing” and
“commencement” shall mean physical vertical construction activity in accordance
with a valid building permit issued by the Town.
SECTION 4. If any provision of this Ordinance is for any reason held by any court of
competent jurisdiction to be unenforceable, such provision or portion hereof shall be deemed
separate, distinct and independent of all other provisions and such holding shall not affect the
validity of the remaining portions of this Ordinance.
SECTION 5. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to take all steps necessary to carry out the purpose and intent
of this Ordinance.
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
May 21, 2015.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
________________________________ __________________________________
Linda M. Kavanagh, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
________________________________ __________________________________
Kenneth W. Buchanan, Town Manager Andrew J. McGuire, Town Attorney
2366929.2
EXHIBIT A
TO
ORDINANCE No. 15-05
(Legal Description and Map)
See following pages.
LEGAL DESCRIPTION
That portion of the South half of the Northwest quarter and the North half of the Southwest
quarter of Section 26, Township 3 North, Range 6 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona, more particularly described as follows:
Commencing at the monument line intersection of Shea Boulevard and Saguaro Boulevard from
which the West quarter corner of said Section 26 bears North 58 degrees 04 minutes 18 seconds
West, a distance of 1388.31 feet and also from which a Maricopa County Highway Department
Brass Cap Monument for P.O.C. 243-83.30, 22 feet RT. Bears North 50 degrees 10 minutes 58
seconds West, a distance of 724.56 feet;
Thence North 42 degrees 50 minutes 00 seconds East along the centerline of Saguaro Boulevard,
a distance of 775.00 feet;
Thence North 47 degrees 10 minutes 00 seconds West, a distance of 55.00 feet to the
Northwesterly right-of-way line and the POINT OF BEGINNING, said point also being the
Southeast corner of lot 6, Block 4, FOUNTAIN HILLS FINAL PLAT NO 403-B;
Thence South 42 degrees 50 minutes 00 seconds West along said right-of-way line, a distance of
330.45 feet to the beginning of a tangent curve being concave Northerly and having a radius of
20.00 feet;
Thence departing from said right-of-way and along the arc of said curve through a central angle
of 87 degrees 25 minutes 23 seconds and an arc length of 30.52 feet to a point of reverse
curvature, said point being on the Northeasterly right-of-way of a road being 50.00 feet in width
and being more commonly known as Trevino Drive, said point also being at the beginning of a
curve being concave Southerly and having a radius of 425.00 feet and a radial line passing
through said point bears North 40 degrees 15 minutes 23 seconds East;
Thence along said right-of-way and along the arc of said curve through a central angle of 44
degrees 49 minutes 23 seconds and an arc length of 332.48 feet;
Thence South 85 degrees 26 minutes 00 seconds West, a distance of 111.13 feet to the beginning
of a tangent curve being concave Northerly and having a radius of 175.00 feet;
Thence along the arc of said curve through a central angle of 42 degrees 51 minutes 31 seconds,
and an arc length of 130.90 feet to a point of reverse curvature, a radial line passing through last
said curve bears South 38 degrees 17 minutes 31 seconds West, said reverse curve being concave
Southerly and having a radius of 7047.49 feet;
Thence along the arc of said curve through a central angle of 00 degrees 58 minutes 12 seconds
and an arc length of 119.30 feet to a point of reverse curvature, a radial line passing through said
point bears North 37 degrees 19 minutes 19 seconds East, said reverse curve being concave
Easterly and having a radius of 20.00 feet;
Thence along the arc of said curve through a central angle of 89 degrees 35 minutes 41 seconds
and an arc length of 31.27 feet to a point on the Easterly right-of-way line of Burkemo Drive,
said point also being on the Easterly line of said FOUNTAIN HILLS FINAL PLAT NO. 403-B,
North 36 degrees 55 minutes 00 seconds East, a distance of 69.89 feet from the Southeasterly
corner of said FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence North 36 degrees 55 minutes 00 seconds East, a distance of 260.77 feet to the beginning
of a tangent curve being concave Westerly and having a radius of 230.00 feet;
Thence along the arc of said curve through a central angle of 15 degrees 21 minutes 52 seconds
and an arc length of 61.68 feet to a point of cusp with a curve concave to the Northeast and
having a radius of 20.00 feet a radial line passing through said point bears North 68 degrees 26
minutes 52 seconds West;
Thence Southeasterly along the arc of said curve through a central angle of 81 degrees 57
minutes 08 seconds and an arc length of 28.61 feet to a point on the Southerly line of said
FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence continuing along said line South 60 degrees 24 minutes 00 seconds East, a distance of
12.75 feet to the beginning of a tangent curve being concave Northeasterly and having a radius
of 185.00 feet;
Thence along the arc of said curve through a central angle of 28 degrees 20 minutes 00 seconds
and an arc length of 91.48 feet;
Thence South 88 degrees 44 minutes 00 seconds East, a distance of 99.71 feet to the beginning
of a tangent curve being concave Southerly and having a radius of 715.00 feet;
Thence along the arc of said curve through a central angle of 41 degrees 34 minutes 00 seconds
and an arc length of 518.72 feet to a point of reverse curvature, said curve being concave
Northerly and having a radius of 20.00 feet, a radial line passing through said point bears South
42 degrees 50 minutes 00 seconds West;
Thence along the arc of said curve through a central angle of 90 degrees 00 minutes 00 seconds
and an arc length of 31.42 feet to the POINT OF BEGINNING.
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
1
2366332.5
THE HEMINGWAY – PLANNED AREA DEVELOPMENT (PAD)
Section 1 – Purpose
The Hemingway PAD zoning district is located on 250,062 square feet (5.74 acres) and is
established to (i) create a modified set of regulations based upon the existing C-1 zoning and (ii)
approve certain uses that would otherwise require a special use permit under C-1, including the
following:
1. Allow a 3 foot fill waiver on a portion of the assisted living building #6 (which backs
onto Saguaro Boulevard), to eliminate a swale in the middle of the building.
2. Allow the 25’ maximum building height to be measured from the finish floor.
3. Grant a Special Use Permit for retirement-focused multifamily uses, including assisted
living and independent living units.
The Hemingway PAD hereby establishes the 5.74 acre PAD zone subject to the design
guidelines and standards set forth below and the Town of Fountain Hills Zoning Ordinance. In
the event of a conflict between the Zoning Ordinance and this PAD, the provisions of this PAD
shall prevail. Unless specifically modified herein, all of the provisions of the Town of Fountain
Hills Zoning Ordinance and Town of Fountain Hills Subdivision Ordinance shall apply to The
Hemingway PAD.
Section 2 – Development Plan
Upon the Fountain Hills Town Council’s approval of the ordinance adopting the Hemingway
PAD, development of the property shall be governed as set forth in this Development Plan. The
Hemingway PAD shall include uses identified as Permitted Uses and Special Permit Uses in the
Town’s C-1 zoning district; provided, separate Special Use Permits shall be required for any
special use other than the retirement-focused multi-family use granted as part of this PAD.
Incorporated by reference into this Development Plan are the following documents, which are
attached in the appendix hereto (collectively, the “Concept Plan”): (i) Concept Grading and
Drainage Plan, prepared by Montgomery Civil Engineering, date stamped October 7, 2002; (ii)
Preliminary Landscape Plan, prepared by Parsons Design Studio; (iii) Lighting Plan, prepared by
Donna Auer, Arizona Lighting; (iv) Lighting Cut Sheets and Specs; (v) Outdoor Amenities Plan,
prepared by Parsons Design Studio; and (vi) Architectural Elevations and Floorplans, prepared
by L.C. Design and Drafting, LLC.
Pursuant to the Fountain Hills Zoning Ordinance Section 23.07.B, The Hemingway PAD
DEVELOPMENT PLAN contains the following components:
1. Name of Development: The Hemingway
9700 N. Saguaro Blvd
Fountain Hills, AZ 85268
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
2
2366332.5
2. Developer: Kauffman Real Estate & Development, LLC
PO Box 18571
Fountain Hills, AZ 85269
480-816-6155
3. Legal Description:
That portion of the South half of the Northwest quarter and the North half of the Southwest
quarter of Section 26, Township 3 North, Range 6 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona, more particularly described as follows:
Commencing at the monument line intersection of Shea Boulevard and Saguaro Boulevard from
which the West quarter corner of said Section 26 bears North 58 degrees 04 minutes 18 seconds
West, a distance of 1388.31 feet and also from which a Maricopa County Highway Department
Brass Cap Monument for P.O.C. 243-83.30, 22 feet RT. Bears North 50 degrees 10 minutes 58
seconds West, a distance of 724.56 feet;
Thence North 42 degrees 50 minutes 00 seconds East along the centerline of Saguaro Boulevard,
a distance of 775.00 feet;
Thence North 47 degrees 10 minutes 00 seconds West, a distance of 55.00 feet to the
Northwesterly right-of-way line and the POINT OF BEGINNING, said point also being the
Southeast corner of lot 6, Block 4, FOUNTAIN HILLS FINAL PLAT NO 403-B;
Thence South 42 degrees 50 minutes 00 seconds West along said right-of-way line, a distance of
330.45 feet to the beginning of a tangent curve being concave Northerly and having a radius of
20.00 feet;
Thence departing from said right-of-way and along the arc of said curve through a central angle
of 87 degrees 25 minutes 23 seconds and an arc length of 30.52 feet to a point of reverse
curvature, said point being on the Northeasterly right-of-way of a road being 50.00 feet in width
and being more commonly known as Trevino Drive, said point also being at the beginning of a
curve being concave Southerly and having a radius of 425.00 feet and a radial line passing
through said point bears North 40 degrees 15 minutes 23 seconds East;
Thence along said right-of-way and along the arc of said curve through a central angle of 44
degrees 49 minutes 23 seconds and an arc length of 332.48 feet;
Thence South 85 degrees 26 minutes 00 seconds West, a distance of 111.13 feet to the beginning
of a tangent curve being concave Northerly and having a radius of 175.00 feet;
Thence along the arc of said curve through a central angle of 42 degrees 51 minutes 31 seconds,
and an arc length of 130.90 feet to a point of reverse curvature, a radial line passing through last
said curve bears South 38 degrees 17 minutes 31 seconds West, said reverse curve being concave
Southerly and having a radius of 7047.49 feet;
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
3
2366332.5
Thence along the arc of said curve through a central angle of 00 degrees 58 minutes 12 seconds
and an arc length of 119.30 feet to a point of reverse curvature, a radial line passing through said
point bears North 37 degrees 19 minutes 19 seconds East, said reverse curve being concave
Easterly and having a radius of 20.00 feet;
Thence along the arc of said curve through a central angle of 89 degrees 35 minutes 41 seconds
and an arc length of 31.27 feet to a point on the Easterly right-of-way line of Burkemo Drive,
said point also being on the Easterly line of said FOUNTAIN HILLS FINAL PLAT NO. 403-B,
North 36 degrees 55 minutes 00 seconds East, a distance of 69.89 feet from the Southeasterly
corner of said FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence North 36 degrees 55 minutes 00 seconds East, a distance of 260.77 feet to the beginning
of a tangent curve being concave Westerly and having a radius of 230.00 feet;
Thence along the arc of said curve through a central angle of 15 degrees 21 minutes 52 seconds
and an arc length of 61.68 feet to a point of cusp with a curve concave to the Northeast and
having a radius of 20.00 feet a radial line passing through said point bears North 68 degrees 26
minutes 52 seconds West;
Thence Southeasterly along the arc of said curve through a central angle of 81 degrees 57
minutes 08 seconds and an arc length of 28.61 feet to a point on the Southerly line of said
FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence continuing along said line South 60 degrees 24 minutes 00 seconds East, a distance of
12.75 feet to the beginning of a tangent curve being concave Northeasterly and having a radius
of 185.00 feet;
Thence along the arc of said curve through a central angle of 28 degrees 20 minutes 00 seconds
and an arc length of 91.48 feet;
Thence South 88 degrees 44 minutes 00 seconds East, a distance of 99.71 feet to the beginning
of a tangent curve being concave Southerly and having a radius of 715.00 feet;
Thence along the arc of said curve through a central angle of 41 degrees 34 minutes 00 seconds
and an arc length of 518.72 feet to a point of reverse curvature, said curve being concave
Northerly and having a radius of 20.00 feet, a radial line passing through said point bears South
42 degrees 50 minutes 00 seconds West;
Thence along the arc of said curve through a central angle of 90 degrees 00 minutes 00 seconds
and an arc length of 31.42 feet to the POINT OF BEGINNING.
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
4
2366332.5
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
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2366332.5
4. Location Map:
5. Site Conditions:
“The Hemingway at Fountain Hills” is planned as an Assisted/Independent Living (“AL/IL”)
complex of single-level multifamily homes at the northwest corner of Saguaro Boulevard and
Trevino Drive. The land is of varying slopes generally sloping from north to south and bordered
by five single family homes to the north, Montera Ranch Condominiums across Saguaro
Boulevard to the east, single family vacant lots across Burkermo Drive to the west and
McDonalds and Circle K to the south across Trevino Drive. “The Hemingway” will be tucked
between single family homes, condominiums and commercial property making it a perfect
transition between all sides.
Existing drainage channels will remain or be modified per engineering design guidelines.
Structures will be designed to ensure adequate setbacks from all drainage channels. Adequate
detention channels will be designed: Detention required = 7,552 CF; detention proposed = 8,562
CF. The preliminary grading and drainage plan (included as part of the Concept Plan and
incorporated into this PAD) is shown on page C2 of 2, including the following information:
a. Topographic contours.
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
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2366332.5
b. Location and extent of major vegetative cover. All Saguaro cacti as well as other
significant vegetation will be identified. All salvageable plants within the project
and will be incorporated into the overall design.
c. Location and extent of intermittent streams and water ponding areas.
d. Existing drainage.
e. Location of all retaining walls, which are between 1’ and 6’ in height.
f. Natural features and manmade features such as existing roads and structures are
shown on the Concept Plan. All existing roads are to be maintained, with
alterations to Trevino Drive.
g. A slope analysis map is not included; commercial property is exempt from the
Town’s hillside protection easement requirements.
h. There are no known existing agreements applicable to the site.
6. Proposed land use areas and specifications, including use standards of each area:
a. Proposed dwelling unit type, total land area and maximum density of residential
use areas are shown on the Concept Plan.
b. Proposed uses, total land area and maximum lot coverage are as follows:
SITE INFORMATION:
Address: 9700 N. Saguaro Blvd, Fountain Hills, AZ 85268
APN: 176-10-811
Gross Lot Area: 250,062 Sq. Ft
Project Data:
Current Zoning: C-1
Proposed Zoning: The Hemingway PAD
Lot Size: 250,062 SF (5.74 AC)
Usage Allowed: 50% 125,031 SF
Actual Usage:
Independent Living: 22,324 SF
Assisted Living: 74,753 SF
Clubhouse: 4,500 SF
Total Roof Area: 101,577 SF
Excess: 23,454 SF
c. Proposed public streetscape and public and private open space improvements and
their relationship to the overall development are shown on the Concept Plan.
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
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2366332.5
d. Building heights, minimum lot areas and setbacks are shown on the Concept Plan
according to the following:
Minimum Setbacks
District
Lot
Area
(Sq Ft)
Bldg
Height Front Side Rear Lot
Coverage
Distance
Between
Bldgs
Hemingway
PAD 250,062 25’* 25’ 10’** 25’ 101,577 20’
* Or height of the building, whichever is greater based on finished floor
of The Hemingway Grading & Drainage Plan C2 of 2.
** When adjacent to a residential district, there shall be a setback equal to
the greater of 10 feet or a distance equal to the height of the adjacent
building wall plane.
e. Building elevations and architectural renderings showing architectural theme
colors and type of exterior building materials for each structure or group of
structures in the PAD are shown on the Concept Plan.
f. A graphic representation of the proposed landscaping treatment, plant materials,
fences, walls and other site plan and open space improvements are shown on the
Concept Plan.
g. Proposed location and width of any arterial, collector or local streets are shown on
the Concept Plan.
h. Proposed location and use of all lands proposed to be dedicated for public
purposes are shown on the Concept Plan.
i. Master water, sewer and drainage plans are shown on the Concept Plan. Water
Service will be provided by the Chaparral City Water Company (EPCOR). All
water service requirements shall be pursuant to the rules and regulations of
EPCOR. Sewer service has been confined to be provided by the Fountain Hills
Sanitary District. All sewer service requirements shall be pursuant to the rules
and regulations of the Fountain Hills Sanitary District. Existing and proposed
grades and drainage systems and how drainage is altered, how it is redirected to
original channel, and how the requirements regarding storm water runoff and
drainage have been met are shown on the Concept Plan.
j. When The Hemingway site is developed and operational, it is forecast to generate
approximately 180 trips in a 24 hour period. Due to the small site within The
Hemingway PAD, an abbreviated Traffic Impact Analysis including projected
volumes on streets within and adjacent to the site has been completed. The
analysis indicated limited off-site improvements are necessary to accommodate
the increase in traffic at level of service C or better. The Southeast corner of the
property bordering Trevino Dr. will be increased with an 85’ taper needed to
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
8
2366332.5
accommodate additional traffic departing from the site and McDonald’s
commercial area. The entrance to the site on Trevino has been increased to 25-30
degrees to accommodate traffic entering the site. There will be a 10’ roadway
easement on Trevino for future widening as needed. Site triangles will be
provided and maintained at the site access points to give drivers exiting the site a
clear view of oncoming traffic.
7. The location, number of spaces, dimensions, circulation patterns, and surface materials
for all off-street parking and loading areas, driveways, access way and pedestrian
walkways are shown on the Concept Plan. The Hemingway PAD parking ratio has been
increased from the Town’s zoning requirements: 134 beds would typically require 34
spaces, but 90 spaces will be provided.
8. The location, dimensions, height, area, materials and lighting of signage are shown on the
Concept Plan. On-site signage will be located at the Southeast entrance on Trevino
Drive, and also on the corner of Saguaro Blvd and Trevino Drive. All signage will be by
separate permit and shall conform to the Fountain Hills Zoning ordinance.
9. The location, height and type of outdoor lighting are shown on the Concept Plan.
Exterior site lighting shall conform to the illumination results shown on the lighting
design plan. At no time shall the amount of light leaving the property be greater than one
lumen. On-site exterior lighting shall also conform to the Fountain Hills Dark Sky
Zoning ordinance.
Section 3 – Project Narrative
“The Hemingway” is incorporating a different spectrum of AL/IL living. Instead of the typical
large institutional living, “The Hemingway” is designed with single level “homes” incorporating
a more home-like environment living, with the careful mix of elevations, paint, steel accents,
roof and stone colors which will offer a variety of elevations. These plans are not the standard
institutional three-story scenario, they offer a mixture of unique and identifiable AL/IL homes,
giving the best aspect of AL/IL living. The design intent is to focus on designs that are authentic
to the area, that introduce home styles with architecture variety and integrated design techniques
and materials to create a strong unique design theme for the community.
“The Hemingway at Fountain Hills” consists of seven assisted living single level “homes” of
approximately 10,000 square feet, 15 foot dramatic ceilings with 16 individual suites, laundry,
office, beauty parlor, medicine room, large kitchen, living room, library area (which will be used
for education, exercise, games, worship, and social events), a large dining area and patios. Each
individual suite will have a niche for family portraits, wet bar area, custom design adjustable
closets, and oversize bathrooms with roll-in showers. The two independent living “homes” of
approximately 10,000 square feet will consist of 10 one-bedroom and living room suites and one
two-bedroom suite and will also have the same options as the assisted living “homes.” The
“home like environment” will provide a warm, comfortable, peaceful lifestyle for our residents.
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
9
2366332.5
The location is key to the success of “The Hemingway at Fountain Hills.” Tucked in between
residential and commercial with easy access to shopping, medical facilities, Sky Harbor Airport,
Fountain Hills, Mesa and Scottsdale, The Hemingway’s location will benefit all who live and
visit here. Because of the type of business there will likely be minimal traffic, crime and noise.
Lush landscape, comfortable sitting areas, calming resident water feature area, and beautiful
putting green have been included in the front yards of “homes” to allow residents to gather out
front for more socialization.
The developer will create an environment for residents to support the community’s commitment
to environmental stewardship and integrate sustainability into the lifestyle of the community.
This will be a unique one of a kind sustainable AL/IL community.
The Hemingway PAD
9700 N. Saguaro Blvd
ORD#15-05
10
2366332.5
APPENDIX
Concept Plan Documents
Concept Grading and Drainage Plan
Preliminary Landscape Plan
Lighting Plan
Lighting Cut Sheets and Specs
Outdoor Amenities Plan
Architectural Elevations and Floorplans
37
38
39
40
41
42
43
44
45
46
47
48
49
2388474.2
RESOLUTION 2015-19
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, ABANDONING WHATEVER RIGHT,
TITLE, OR INTEREST IT HAS IN THE CERTAIN HILLSIDE PROTECTION
EASEMENTS GENERALLY LOCATED AT THE INTERSECTION OF
SAGUARO BOULEVARD AND TREVINO DRIVE.
WHEREAS, Royal Bank is the current owner of certain real property located within the
Town of Fountain Hills, Arizona, consisting of approximately 5.49 acres depicted on Exhibit A,
which is incorporated herein by reference (the “Property”); and
WHEREAS, GMCAR, L.L.C., the Property’s prior owner (the “Prior Owner”) and the
Town entered into an Alternative Hillside Preservation Agreement on June 19, 2003, recorded in
the Maricopa County Recorder’s Office, Document No. 2003-0813438 (the “Preservation
Agreement”) in order to facilitate the development of the Property by providing for an alternative
means for Prior Owner to satisfy the hillside preservation requirement of the Town’s Subdivision
Ordinance. The Preservation Agreement related to a proposed development on the Property that
did not come to fruition; and
WHEREAS, in conjunction with the Preservation Agreement, a hillside preservation
easement was recorded on the Property (the “HPE”) over the area depicted on Exhibit A; and
WHEREAS, on October 16, 2014, the Fountain Hills Town Council (the “Town
Council”) adopted Ordinance 14-08, modifying the hillside preservation requirements applicable
to the Property and eliminating the need for the alternative arrangement set forth in the
Preservation Agreement or any other hillside preservation easement; and
WHEREAS, on May 21, 2015, the Town Council approved a termination of the
Preservation Agreement and now desires to abandon the HPE.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. The recitals above are hereby incorporated as if fully set forth herein.
SECTION 2. The HPE, located as shown on Exhibit A, is hereby abandoned by the
Town of Fountain Hills.
SECTION 3. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to take all steps necessary to carry out the purpose and intent
of this Resolution.
[SIGNATURES ON FOLLOWING PAGE]
2388474.2
2
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
May 21, 2015.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
Linda M. Kavanagh, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Kenneth W. Buchanan, Town Manager Andrew J. McGuire, Town Attorney
2388474.2
EXHIBIT A
TO
RESOLUTION NO. 2015-19
[Map]
See following pages.
2336182.3
WHEN RECORDED, RETURN TO:
Attention: Town Clerk
Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
TERMINATION
OF
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
THIS TERMINATION OF ALTERNATIVE HILLSIDE PRESERVATION
AGREEMENT (this “Termination Agreement”) is entered into , 2015,
by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the
“Town”) and ROYAL BUSINESS BANK, a California corporation (“Royal Bank”), as
successor-in-interest to GMCAR, L.L.C. (the “Prior Owner”). The Town and Royal Bank are
referred to individually as a “Party” and collectively as the “Parties”).
RECITALS
A. Royal Bank is the owner of certain real property located within the Town of
Fountain Hills, Arizona, consisting of approximately 5.49 acres, legally described and depicted
on Exhibit A and incorporated herein by reference (the “Property”). The Prior Owner conveyed
the Property to individual owners, who encumbered the Property with a deed of trust. The
trustee under the deed of trust later conveyed the Property to First Asian Bank, which was later
merged with Royal Bank.
B. The Prior Owner and the Town entered into an Alternative Hillside Preservation
Agreement on June 19, 2003, recorded in the Maricopa County Recorder’s Office, Document
No. 2003-0813438 (the “Preservation Agreement”) in order to facilitate the development of the
Property by providing for an alternative means for Prior Owner to satisfy the hillside
preservation requirement of the Town’s Subdivision Ordinance. The Preservation Agreement
related to a proposed development on the Property that did not come to fruition.
C. In conjunction with the Preservation Agreement, a hillside preservation easement
was recorded on the Property (the “HPE”).
D. On October 16, 2014, the Fountain Hills Town Council adopted Ordinance 14-08,
modifying the hillside preservation requirements applicable to the Property and eliminating the
need for the alternative arrangement set forth in the Preservation Agreement. Accordingly, the
Town and Royal Bank desire to terminate the Preservation Agreement and abandon the HPE.
2336182.3
2
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference, the following mutual covenants and conditions, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Royal Bank and
the Town hereby agree to amend the Preservation Agreement as follows:
1. Termination of Preservation Agreement. The Parties agree the purpose of the
Preservation Agreement has been rendered moot by the failed prior development and the change
in the Town’s Subdivision Ordinance. Accordingly, the Preservation Agreement is terminated.
2. Abandonment of Hillside Protection Easement. The Parties agree to take such
steps as are necessary to abandon the HPE existing on the Property.
3. General.
3.1 Notices and Requests. Any notice or other communication required or
permitted to be given under this Termination 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 or
(C) given to a recognized and reputable overnight delivery service, to the address set forth
below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Kenneth W. Buchanan, Town Manager
With copy to: GUST ROSENFELD P.L.C.
One East Washington Street, Suite 1600
Phoenix, Arizona 85004-2553
Attn: Andrew J. McGuire, Esq.
If to Royal Bank: Royal Business Bank
3919 Spring Mountain Road
Las Vegas, Nevada 89102
Attn: Keith V. Thomas, Senior Vice President
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 subsection. 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
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
2336182.3
3
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.
3.2 Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by either Party of the breach of any covenant of this Termination
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Termination Agreement.
3.3 Headings. The headings of this Termination Agreement are for purposes
of reference only and shall not limit or define the meaning of any provision of this Termination
Agreement.
3.4 Exhibits. All exhibits attached hereto are incorporated herein by this
reference as though fully set forth herein.
3.5 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 Termination Agreement.
3.6 Third Parties. No term or provision of this Termination 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.
3.7 No Partnership. None of the terms or provisions of this Termination
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 members of a joint
venture or joint enterprise. Each Party hereto shall be considered a separate owner, and no Party
hereto shall have the right to act as an agent for another Party hereto, unless expressly authorized
to do so herein or by separate written instrument signed by the Party to be charged.
3.8 Entire Termination Agreement; Interpretation; Parol Evidence. This
Termination Agreement represents the entire agreement of the Parties with respect to its subject
matter, and all previous agreements, whether oral or written, entered into prior to this
Termination Agreement are hereby revoked and superseded by this Termination Agreement. No
representations, warranties, inducements or oral agreements have been made by any of the
Parties except as expressly set forth herein, or in any other contemporaneous written agreement
executed for the purposes of carrying out the provisions of this Termination Agreement. This
Termination Agreement shall be construed and interpreted according to its plain meaning, and no
presumption shall be deemed to apply in favor of, or against the Party drafting the Termination
Agreement. The Parties acknowledge and agree that each has had the opportunity to seek and
utilize legal counsel in the drafting of, review of, and entry into this Termination Agreement.
3.9 Good Standing and Authority. Each of the Parties represents and warrants
to the other that the individual(s) executing this Termination Agreement on behalf of the
respective Parties are authorized and empowered to bind the Party on whose behalf each such
individual is signing.
2336182.3
4
3.10 Applicable Law; Venue. The laws of the State of Arizona shall govern
any dispute, controversy, claim or cause of action arising out of or related to this Termination
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.
3.11 Recordation. This Termination Agreement shall be recorded in its entirety
by the Town in the Maricopa County Recorder’s Office after it is fully executed by the Parties.
3.12 Attorneys’ Fees. In the event either Party brings any action for any relief,
declaratory or otherwise, arising out of this Termination Agreement or on account of any breach
or default hereof, the prevailing Party shall be entitled to receive from the other Party reasonable
attorneys’ fees and reasonable costs and expenses, determined by the court sitting without a jury,
which shall be deemed to have accrued on the commencement of such action and shall be
enforced whether or not such action is prosecuted through judgment.
3.13 Covenant of Good Faith. In exercising their rights and in performing their
obligations pursuant to this Termination Agreement, the Parties will cooperate with one another
in good faith to ensure the intent of this Agreement can be attained.
3.14 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 Termination Agreement, nor shall any such member, official or employee participate in
any decision relating to this Termination 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 Termination Agreement is subject to cancellation pursuant to the
terms of ARIZ. REV. STAT. § 38-511.
[SIGNATURES ON FOLLOWING PAGES]
2336182.3
5
IN WITNESS WHEREOF, the Parties have executed this Termination Agreement the
day and year first above written.
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Kenneth W. Buchanan, Town Manager
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On ___________________, 2015, before me personally appeared Kenneth W. Buchanan,
the Town Manager 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 he
claims to be, and acknowledged that he signed the above document, on behalf of the Town of
Fountain Hills.
Notary Public
(Affix notary seal here)
2336182.3
EXHIBIT A
TO
TERMINATION OF
ALTERNATIVE HILLSIDE PRESERVATION AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
ROYAL BUSINESS BANK
[Legal Description and Map]
See following pages.
LEGAL DESCRIPTION
That portion of the South half of the Northwest quarter and the North half of the Southwest
quarter of Section 26, Township 3 North, Range 6 East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona, more particularly described as follows:
Commencing at the monument line intersection of Shea Boulevard and Saguaro Boulevard from
which the West quarter corner of said Section 26 bears North 58 degrees 04 minutes 18 seconds
West, a distance of 1388.31 feet and also from which a Maricopa County Highway Department
Brass Cap Monument for P.O.C. 243-83.30, 22 feet RT. Bears North 50 degrees 10 minutes 58
seconds West, a distance of 724.56 feet;
Thence North 42 degrees 50 minutes 00 seconds East along the centerline of Saguaro Boulevard,
a distance of 775.00 feet;
Thence North 47 degrees 10 minutes 00 seconds West, a distance of 55.00 feet to the
Northwesterly right-of-way line and the POINT OF BEGINNING, said point also being the
Southeast corner of lot 6, Block 4, FOUNTAIN HILLS FINAL PLAT NO 403-B;
Thence South 42 degrees 50 minutes 00 seconds West along said right-of-way line, a distance of
330.45 feet to the beginning of a tangent curve being concave Northerly and having a radius of
20.00 feet;
Thence departing from said right-of-way and along the arc of said curve through a central angle
of 87 degrees 25 minutes 23 seconds and an arc length of 30.52 feet to a point of reverse
curvature, said point being on the Northeasterly right-of-way of a road being 50.00 feet in width
and being more commonly known as Trevino Drive, said point also being at the beginning of a
curve being concave Southerly and having a radius of 425.00 feet and a radial line passing
through said point bears North 40 degrees 15 minutes 23 seconds East;
Thence along said right-of-way and along the arc of said curve through a central angle of 44
degrees 49 minutes 23 seconds and an arc length of 332.48 feet;
Thence South 85 degrees 26 minutes 00 seconds West, a distance of 111.13 feet to the beginning
of a tangent curve being concave Northerly and having a radius of 175.00 feet;
Thence along the arc of said curve through a central angle of 42 degrees 51 minutes 31 seconds,
and an arc length of 130.90 feet to a point of reverse curvature, a radial line passing through last
said curve bears South 38 degrees 17 minutes 31 seconds West, said reverse curve being concave
Southerly and having a radius of 7047.49 feet;
Thence along the arc of said curve through a central angle of 00 degrees 58 minutes 12 seconds
and an arc length of 119.30 feet to a point of reverse curvature, a radial line passing through said
point bears North 37 degrees 19 minutes 19 seconds East, said reverse curve being concave
Easterly and having a radius of 20.00 feet;
Thence along the arc of said curve through a central angle of 89 degrees 35 minutes 41 seconds
and an arc length of 31.27 feet to a point on the Easterly right-of-way line of Burkemo Drive,
said point also being on the Easterly line of said FOUNTAIN HILLS FINAL PLAT NO. 403-B,
North 36 degrees 55 minutes 00 seconds East, a distance of 69.89 feet from the Southeasterly
corner of said FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence North 36 degrees 55 minutes 00 seconds East, a distance of 260.77 feet to the beginning
of a tangent curve being concave Westerly and having a radius of 230.00 feet;
Thence along the arc of said curve through a central angle of 15 degrees 21 minutes 52 seconds
and an arc length of 61.68 feet to a point of cusp with a curve concave to the Northeast and
having a radius of 20.00 feet a radial line passing through said point bears North 68 degrees 26
minutes 52 seconds West;
Thence Southeasterly along the arc of said curve through a central angle of 81 degrees 57
minutes 08 seconds and an arc length of 28.61 feet to a point on the Southerly line of said
FOUNTAIN HILLS FINAL PLAT NO. 403-B;
Thence continuing along said line South 60 degrees 24 minutes 00 seconds East, a distance of
12.75 feet to the beginning of a tangent curve being concave Northeasterly and having a radius
of 185.00 feet;
Thence along the arc of said curve through a central angle of 28 degrees 20 minutes 00 seconds
and an arc length of 91.48 feet;
Thence South 88 degrees 44 minutes 00 seconds East, a distance of 99.71 feet to the beginning
of a tangent curve being concave Southerly and having a radius of 715.00 feet;
Thence along the arc of said curve through a central angle of 41 degrees 34 minutes 00 seconds
and an arc length of 518.72 feet to a point of reverse curvature, said curve being concave
Northerly and having a radius of 20.00 feet, a radial line passing through said point bears South
42 degrees 50 minutes 00 seconds West;
Thence along the arc of said curve through a central angle of 90 degrees 00 minutes 00 seconds
and an arc length of 31.42 feet to the POINT OF BEGINNING.
2387731.2
EMPLOYMENT AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
GRADY E. MILLER
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into
May 21, 2015, by and between the Town of Fountain Hills, an Arizona municipal corporation
(the “Town”) and Grady E. Miller (“Miller”).
RECITALS
A. The Town desires to employ Miller as Town Manager of the Town, as provided
by Article 3-1 of the Fountain Hills Town Code (the “Town Code”).
B. It is the desire of the Mayor and Council of the Town of Fountain Hills (the
“Town Council”) to provide certain benefits, to establish certain conditions of employment and
to set working conditions for Miller.
C. Miller desires to accept employment as Town Manager of the Town.
D. The parties acknowledge that Miller is a member of the International City/County
Management Association (“ICMA”) and that Miller is subject to the ICMA Code of Ethics.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby
incorporated into and are deemed an integral part of this Agreement, the mutual covenants set
forth below and other good and valuable consideration, the receipt and sufficiency of which are
mutually acknowledged by the parties hereto, the Town and Miller hereby agree as follows:
1. Duties. Miller shall perform the functions and duties specified for the Town
Manager in the Town Code and to perform other legally permissible and proper duties and
functions as the Town Council shall from time to time assign. Miller shall not be reassigned
from the position of Town Manager to another position without his express, written consent.
2. Term. This Agreement shall be effective as of the date first set forth above and
shall remain in full force and effect until terminated by either the Town or Miller as set forth
below. The Town and Miller agree that Miller shall officially begin his duties for the Town not
later than July 1, 2015. After commencing his official duties, and thereafter during the term of
this Agreement, Miller shall be in the exclusive employ of the Town and shall not accept other
employment or carry out any other business except that of the position of the Town Manager
unless authorized to do so by the Town Council, in writing, prior to Miller engaging in such
other activity; provided, however, that any such additional duties shall be conducted on Miller’s
vacation time and without the use of Town resources or equipment.
2387731.2 2
3. Termination. This Agreement may be terminated by the Town with or without
cause at any time, subject only to subsection 3-1-1(E) of the Town Code and the severance
provisions set forth in subsection 3.2 below. Miller may terminate this Agreement at any time,
with or without cause, upon not less than 30 days written notice to the Town Council.
3.1 Severance With Cause. If the Town Council terminates this Agreement
with cause, no severance pay will be paid to Miller unless otherwise approved by the Town
Council in its sole discretion. For the purposes of this Agreement, “with cause” shall mean that
the Town Council, at a duly posted public meeting, has determined that Miller has
(A) committed an act of gross insubordination by refusing to take a legal, valid action that is
clearly within the scope of his employment when specifically directed to do so by a majority of
the Town Council at a duly posted public meeting, (B) been incarcerated and charged with a
felony as defined in Arizona Revised Statutes (the Town Council may choose to suspend Miller
with pay during the pendency of any such prosecution), (C) either in his personal or professional
capacity, severely damaged the reputation of the Town or the Town Council, (D) materially
failed to perform a significant portion of his duties as the Town Manager as set forth in this
Agreement, (E) caused or by gross negligence allowed any practice, activity, decision or
organizational circumstance that is either illegal or immoral, (F) violated provisions of the ICMA
Code of Ethics or (G) committed malfeasance in office or willful breach or habitual neglect of
the duties described in subsection 3-1-1(H) and Section 3-1-10 of the Town Code.
3.2 Severance Without Cause.
A. In the event the Town Council terminates this Agreement without
cause, Miller shall be entitled to severance pay in an amount equal to six months of his annual
base salary, benefits and allowances (excluding the value of the use of a Town vehicle, but
including any automobile allowance granted by the Town Council pursuant to subsection 6.5
below), including pay-out of accrued vacation and sick leave at the then-current rates set forth
for all Town employees in the Town’s personnel rules, at the time of such termination, but
specifically excluding any payout for unused Management Leave as described in Subsection 6.7
below. Payment of any such severance shall be contingent upon all of the following:
(1) Miller executing a severance agreement acceptable to both
parties, which shall include Miller’s (a) full release of the Town and all its agents and
employees from any and all claims, including but not limited to, demands, damages,
causes of action or liability arising out of Miller’s employment or termination of
employment with Town, (b) agreement not to initiate or cause to be initiated under any
lawsuit, claim, grievance proceeding or investigation of any kind, under any contract, law
or regulation, pertaining to his employment with the Town and (c) acknowledgement that
the Town will provide no more than neutral references for Miller, but that the Town may
be required to disclose any and all records related to such termination pursuant to a valid
request for public records.
(2) Miller making himself reasonably available as needed by
the Town for consulting purposes for a period of time equal to the number of months of
severance paid.
2387731.2 3
B. It shall be deemed severance without cause if, at any time during
the term of this Agreement the Town Council (1) reduces Miller’s salary or other financial
benefits in a greater percentage than an applicable across-the-board reduction for all Town
employees or (2) refuses to comply with a material term of this Agreement within 30 days after
written notice from Miller.
C. If Manager’s employment is terminated pursuant to this
subsection 3.2, all fringe benefits furnished by Town shall terminate on the date of termination of
this Agreement.
D. Town agrees that during the 2015-2016 budget year it shall cause
to be deposited with an independent third party trust officer a sum equal to the full amount of
Miller’s base salary for six months plus the cost of six months of COBRA payments. The Town
and Miller agree that they have executed an agreement (the “Escrow Agreement”) providing that
if, prior to July 1, 2017, any future Council fails to ratify this Agreement or fails to provide
severance when required as set forth herein, Miller shall be permitted to withdraw all funds from
said third party trust officer minus any interest earned, which interest shall be payable to the
Town upon Miller’s withdrawal of the amounts in escrow. The Escrow Agreement governing
the amounts to be held in escrow is attached hereto as Exhibit A and incorporated herein by
reference.
3.3. Voluntary Resignation. In the event Miller voluntarily terminates this
Agreement for any reason, he shall not be entitled to severance pay, unless otherwise approved
by the Town Council in its sole discretion.
3.4 Forced Resignation. In the event of a suggestion, either formal or
informal, by one or more members of the Town Council, including the Mayor, that he resign,
Miller may require that the Mayor, Town Council and Miller meet and discuss the matter in an
effort to resolve any disagreement or misunderstanding that led to the suggestion of resignation,
subject to compliance with the Open Meeting Law and other applicable laws. If Miller resigns
following an offer to accept resignation by a majority of the Town Council, whether formal or
informal, then he may declare a termination as of the date of the acceptance.
4. Suspension. If the Town Council has made a determination that “for cause”
termination is appropriate as set forth in subsection 3.1 above, the Town Council may, in its sole
discretion, as an alternative to, or prior to, termination, suspend Miller with or without pay for a
period of up to 30 days.
5. Disability. If Miller is permanently disabled or is otherwise unable to fulfill his
duties hereunder due to sickness, accident, injury, health or mental incapacity for a period of four
consecutive weeks beyond any accrued sick leave, or a minimum of 12 weeks as defined under
the Family Medical Leave Act of 1993 (FMLA) should said accrued sick leave be less than
twelve weeks, the Town shall have the option to terminate this Agreement; provided, the Town
shall pay the full amount of severance pay set forth in Section 3 above. Miller shall, during such
disability event, continue to accrue vacation leave and sick leave and receive holiday
compensation benefits. A termination due to disability shall not be exercised unreasonably.
2387731.2 4
6. Compensation.
6.1 Salary. The Town agrees to pay Miller a base salary of $129,500.00 for
fiscal year 2015-16 for his services rendered pursuant to this Agreement, payable in installments
at the same time as other management employees of the Town are paid. In the event Miller has
met or exceeded the Town Council’s expectations during any fiscal year under this Agreement,
as determined according to the performance evaluation criteria set forth in Section 7 below,
Miller’s base salary shall be increased in each fiscal year (beginning FY 2016-2017) by the same
percentage amount approved by the Town Council for other Fountain Hills employees as a merit,
market adjustment and/or cost of living increase, if any, as part of the Town’s annual budget.
The Town shall adjust Miller’s other benefits in such amounts as are generally provided other
Town employees.
6.2 Disability, Health and Life Insurance. The Town agrees to provide life,
accident, sickness, short and long term disability income benefits, major medical, hospitalization,
surgical and comprehensive medical insurance, workers compensation and FMLA benefits in the
same manner and at the same benefit level as is generally provided to all the Town employees.
Except as otherwise provided in this Agreement, Miller shall be entitled, at a minimum, to the
highest level of benefits enjoyed by and/or available to other employees, department heads or
general employees of the Town as provided by the Town’s policies, Town Code, ordinances,
personnel rules and regulations or other practices. Miller may choose to forego coverage under
this Subsection, in which case the Town shall provide Miller with a stipend of $500 per month to
offset medical costs.
6.3 Retirement and Deferred Compensation. The Town shall make
contributions to the Town’s ICMA 401 plan on Miller’s behalf in the same amount as
contributed for other management employees of the Town. Miller may, at his sole option and
expense, contribute to the Town’s existing ICMA-RC 457 plan account (any catch-up amounts
permitted by the plan shall be made separately by Miller). Such contributions shall be in 26
equal bi-monthly installments. The Town further agrees to transfer ownership of Miller’s
plan(s), to the extent permitted by law, to any succeeding employer in the event of Miller’s
termination from the Town, for any reason.
6.4 Cellular Telephone. The Town shall provide Miller a $75 monthly
cellular telephone stipend. Miller shall maintain a cellular telephone, with a telephone number
published internally in the Town directory, for use in conducting Town business.
6.5 Automobile. The Town shall provide Miller with a vehicle allowance of
$500.00 per month.
6.6 Vacation and Sick Leave. Miller shall accrue vacation and sick leave at
the same rate as granted other employees; provided, however, that Miller shall be credited with
40 hours of vacation leave and 40 hours of sick leave, in addition to any unused amounts in his
vacation and sick leave “banks” as of the date of this Agreement, which shall be available on the
date he reports for duty as set forth in Section 2 above. Miller shall be compensated for unused
2387731.2 5
vacation and sick leave upon termination according to the provisions of the Town’s then-current
personnel rules relating thereto.
6.7 Management Leave. Miller shall be granted, on July 1 of each year, 40
hours of Management Leave to be used at his discretion. Leave under this Subsection 6.7 shall
not accumulate from year to year, and the unused portion shall be forfeit on June 30 of each year.
This leave shall not be included as a portion of Severance Pay as set forth in Section 3 above.
7. Performance Evaluation. The Town Council shall annually review and evaluate
Miller’s performance as far in advance of the adoption of the annual operating budget as
practicable, but not later than April 30 each year. Miller’s review and evaluation shall be based
upon (i) success at fulfilling the reasonably achievable goals and performance objectives set
forth by the Town Council in its annual goal-setting retreat, (ii) personnel management,
including overall management style and ability to lead and direct staff and ability to supervise
department heads, but specifically excluding any evaluation of Miller’s hiring and firing
decisions with respect to individual staff members, (iii) obtainment of additional, reasonably
achievable policy objectives and goals as set forth by a majority of the Town Council at a public
meeting; provided, however, that such goals and objectives are generally obtainable within the
time allowed and within the limitations of the annual budget and (iv) professionalism, including
manner of addressing the Town Council, preparation of Council agendas and supporting material
and preparation and management of the annual budget.
8. Hours of Work. The Town Council recognizes that Miller is a salaried employee
and must devote a great deal of time beyond the normal office hours to business of the Town
and, to that end, Miller will be allowed to take reasonable time off as he shall deem appropriate
during said normal office hours.
9. Dues and Subscriptions. The Town agrees to budget for and to pay for Miller’s
professional dues and subscriptions necessary for his continuation and full participation in
national, regional, state and local associations and organizations of which he is currently a
member or expected to be a member because of his position as Town Manager, and for other
necessary and desirable expenses for his continued professional participation, growth, and
advancement, and for the good of the Town, as the Town Council deems appropriate. This
benefit shall not be included as a portion of Severance Pay as set forth in Section 3 above.
10. Professional Development.
10.1 Professional Associations. The Town hereby agrees to budget for and to
pay for Miller’s travel expenses of professional and official travel, meetings, and occasions it
deems necessary to continue his professional development and to adequately pursue necessary
official functions for the Town, including but not limited to the ICMA annual conference, the
Arizona City/County Management Association conferences, the League of Arizona Cities and
Towns annual conference, and such other national, regional, state, and local governmental
groups and committees thereof on which Miller serves as a member. This benefit shall not be
included as a portion of Severance Pay as set forth in Section 3 above.
2387731.2 6
10.2 Continuing Education. The Town also agrees to budget for and to pay for
Miller’s reasonable travel, registration and subsistence expenses for short courses, institutes and
seminars that it deems necessary for his professional development and for the good of the Town.
This benefit shall not be included as a portion of Severance Pay as set forth in Section 3 above.
11. Expenses.
11.1 General Expenses. The Town recognizes that certain expenses of a non-
personal and generally job-affiliated nature are periodically incurred by Miller. The Town
agrees to (i) reimburse or to pay said general expenses and (ii) authorizes the Finance Director or
authorized designee to disburse such monies upon receipt of duly executed expense or petty cash
vouchers, receipts, statements or personal affidavits.
11.2 Relocation Allowance. The Town shall reimburse Miller up to $10,000.00
related to Miller’s moving expenses (and other related storage costs) from his current residence
to Fountain Hills for household and personal items, but not including any livestock, personal pets
or recreational vehicles. All requests for reimbursement by Miller shall be accompanied by
receipts supporting such request.
12. Civic Club Membership. The Town recognizes the desirability of representation
in and before local civic and other organizations, and Miller is authorized to become a member
of such civic clubs or organizations the Town Council deems necessary and for which the Town
shall pay all expenses. Miller shall report to the Town on each membership that he has taken out
at the Town’s expense.
13. Indemnification. In addition to that required under state and local law, the Town
shall defend, save harmless, and indemnify Miller from and against any tort, professional
liability claim, or demand or other legal action, whether groundless or otherwise, arising out of
an alleged act or omission occurring in the performance of Miller’s duties as prescribed by the
Town Code or separate directions of the Town Council.
14. Bonding. The Town shall bear the full cost of any fidelity or other bonds required
of Miller under any law or ordinance.
15. Default; Cure. Failure or unreasonable delay by Miller or the Town to perform or
otherwise act in accordance with any term or provision hereof shall constitute a breach of this
Agreement and, if the breach is not cured within 30 days after written notice thereof from the
other party, shall constitute a default under this Agreement; provided, however, that if the failure
is such that more than 30 days would reasonably be required to perform such action or comply
with any term or provision hereof, then the party shall have such additional time as may be
necessary to perform or comply so long as the party commences performance or compliance
within 15 days after written notice and diligently proceeds to complete such performance or
fulfill such obligation (the “Cure Period”); provided further, however, that no such cure period
shall exceed 90 days, unless otherwise agreed to, in writing, by the parties. Any notice of a
breach shall specify the nature of the alleged breach and the manner in which said breach may be
satisfactorily cured, if possible. In the event a breach is not cured within the Cure Period, the
2387731.2 7
non-defaulting party shall have all rights and remedies which may be available under law or
equity.
16. 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 (i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail,
registered or certified, return receipt requested, to the address set forth below or (iii) given to a
recognized and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Mayor
With copy to: GUST ROSENFELD, P.L.C.
One East Washington Street, Suite 1600
Phoenix, Arizona 85004-2553
Attn: Andrew J. McGuire, Esq.
If to Miller: Grady E. Miller
__________________________
__________________________
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 (i) when delivered to the party, (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (iii) 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. 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.
17. Waiver. No delay in exercising any right or remedy shall constitute a waiver
thereof, and no waiver by the Town or Miller 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.
18. Attorneys’ Fees. In the event either party finds it necessary to bring any action at
law or other proceeding against the other party to enforce any of the terms, covenants or
conditions hereof, or by reason of any breach or default hereunder, the party prevailing in such
action or other proceeding shall be paid all reasonable costs and reasonable attorneys’ fees by the
other party and, in the event any judgment is secured by said prevailing party, all such costs and
attorneys’ fees shall be included therein, such fees to be set by the court and not by jury.
2387731.2 8
19. Headings. The descriptive headings of the sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof.
20. 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.
21. Time of the Essence. Time is of the essence in this Agreement.
22. Assignment. This Agreement may not be assigned, in whole or in part.
23. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof. All prior and contemporaneous
agreements, representations and understandings of the parties, oral or written, are hereby
superseded and merged herein.
24. Amendment. No amendment or waiver of any provision in this Agreement will
be binding (i) on the Town unless and until it has been approved by the Town Council and has
become effective or (ii) on Miller unless and until it has been executed by Miller or his
authorized representative.
25. Governing Law. This Agreement is entered into in Arizona and shall be
construed and interpreted under the laws of the State of Arizona.
26. 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, then 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.
27. 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. The Town and its Town Council shall not
unreasonably withhold appropriation authority to fund the salary, benefits and other provisions
of this Agreement.
28. Conflict of Interest. This Agreement may be cancelled by the Town pursuant to
ARIZ. REV. STAT. § 38-511.
2387731.2 9
29. Counsel Assistance; Fair Interpretation.
29.1 Counsel for Miller. Miller has either been assisted by counsel in
connection with the preparation and execution of this Agreement or has chosen to forego such
legal representation despite a recommendation from the Town that Miller seek advice from legal
counsel.
29.2 Counsel for Town. The Town has been assisted by counsel of its own
choosing in connection with the preparation and execution of this Agreement.
29.3 Fair Interpretation. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first set forth above.
“Miller” “Town”
TOWN OF FOUNTAIN HILLS, an Arizona
municipal corporation
By:
Grady E. Miller Linda M. Kavanagh, Mayor
ATTEST:
Bevelyn J. Bender, Town Clerk
2387731.2
EXHIBIT A
TO
EMPLOYMENT AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
GRADY E. MILLER
[Escrow Agreement]
See following pages.
2387751.1
ESCROW AGREEMENT AND ESCROW INSTRUCTIONS
THIS ESCROW AGREEMENT AND ESCROW INSTRUCTIONS (this “Escrow
Agreement”) is made and entered into ___________, 2015 (the “Effective Date”), by and among
Grady E. Miller (hereinafter “Miller”), ____________________________________, an Arizona
corporation (“Escrow Agent”) and the Town of Fountain Hills, an Arizona municipal corporation
(the “Town”), providing for certain funds to be held in escrow in connection with the Town’s
employment of Miller as Town Manager pursuant to that certain Employment Agreement
between the Town and Miller dated May 21, 2015 (the “Employment Agreement”) and
employing the Escrow Agent for the purpose of receiving and disbursing funds and documents as
set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, which is hereby incorporated
into and are deemed an integral part of this Agreement, the mutual covenants set forth below and
other good and valuable consideration, the receipt and sufficiency of which are mutually
acknowledged by the parties hereto, the Town and Miller hereby agree as follows:
1. Escrow Deposit. The Town, prior to July 1, 2015, shall deposit with the Escrow
Agent six months of Miller’s salary as of the date of this Escrow Agreement, together with the
cost of six months of individual COBRA payments as of the date of this Escrow Agreement (the
“Escrow Sum”), to be held by the Escrow Agent and disbursed by the Escrow Agent, pursuant to
the terms of this Escrow Agreement.
2. Investment of Funds. The funds held in Escrow shall be invested by the Escrow
Agent in Securities set forth in Town’s investment policy.
3. Term of Escrow Agreement. This Escrow Agreement shall commence on the
Effective Date and shall remain in full force and effect until July 1, 2017, unless (i) terminated
earlier by consent of the Town, Miller and the Escrow Agent or (ii) the Employment Agreement
is terminated for any reason other than “severance without cause” as set forth in subsection 3.1
therein, which shall cause this Escrow Agreement to simultaneously terminate without further
act of any party.
4. Payment of Escrow Sum. The Escrow Sum may only be paid according to the
procedure set forth in this Section 4.
4.1 Miller Affidavit. During the Term of the Escrow Agreement, in the event
any future Town Council fails to renew Miller’s Employment Agreement or fails to provide
severance as and when required in the Employment Agreement of equal date herewith, Miller
will notify the Escrow Agent by way of an affidavit. A copy of the affidavit will be
simultaneously served on the Town.
4.2 Town’s Countervailing Affidavit. If the Town does not consider Miller
eligible for the Escrow Sum, then, within 15 business days after receipt of a copy of Miller’s
affidavit, the Town must contest Miller’s affidavit by an affidavit of the Mayor, acting according
2387751.1 2
to direction of the Town Council. Such contest must be by way of an affidavit timely submitted
by the Town to the Escrow Agent, with a copy simultaneously served upon Miller.
4.3 Effect of Failure of Town to File Affidavit. If no affidavit is timely
submitted by the Town, the full amount of the Escrow Sum shall be paid to Miller within five
business days of the expiration of the time period in subsection 4.2 above. All interest earned
shall be returned to the Town.
4.4 Arbitration. If neither Miller nor the Town withdraws its or his affidavit
by the end of five business days after service of the Town’s affidavit upon Miller, then the
dispute shall be submitted to binding arbitration in accordance with the rules of the American
Arbitration Association and the Escrow Agent shall pay out the Escrow Sum as ordered pursuant
to such arbitration. The Arbitration Panel shall consist of three arbitrators: the Town’s
appointed arbitrator, Miller’s appointed arbitrator and a third arbitrator (or “Neutral Arbitrator”)
who shall be selected by the parties’ arbitrators as set forth in the following sentence. The
parties’ arbitrators shall choose the Neutral Arbitrator within five business days after both have
been appointed. All arbitrators, including the Neutral Arbitrator shall be members of the State
Bar of the State of Arizona and shall have experience in the field of employment law. None of
the arbitrators nor any of the arbitrator’s firms shall have presently, or in the past, represented
any party to the arbitration. In the event that the selected arbitrators cannot agree on the Neutral
Arbitrator as set forth above, the Town and Miller shall each submit two names to the presiding
judge of the Maricopa County Superior Court, who shall select one person to serve as the Neutral
Arbitrator. The fees and costs of the arbitrators incurred in such arbitration shall be assessed
against the Town, with each party bearing its own costs and expenses. Either party can make
application to the Maricopa County Superior Court for confirmation of an award, and for entry of
judgment on it.
5. Return of Escrow Funds. Upon any event of termination as set forth in Section 3
above, the full amount of the Escrow Sum, plus accrued interest, shall be paid to the Town by the
Escrow Agent within 15 business days following such termination event. If the termination
event is other than the natural expiration of this Escrow Agreement on July 1, 2017, the Town
shall notify the Escrow Agent of the occurrence of such event. If the Town’s notice is not
countersigned by Miller, the Escrow Agent shall not release the Escrow Sum until ten business
days after providing Miller with notice of the Town’s notice of termination.
6. Escrow Agent. In addition to the holding and disbursement of said funds and
documents, Miller and the Town hereby agree to the following with respect to the Escrow Agent:
6.1 Disputed Funds. The Escrow Agent is hereby authorized, in the event of
any conflicting demands made upon it concerning this Escrow Agreement, at its election, to hold
any money and documents deposited hereunder until it receives (A) mutual instructions by all
parties, (B) notification by the arbitrator selected according to subsection 4.4 above of the results
of an arbitration or (C) until a civil action shall have been fully concluded in a court of
competent jurisdiction, determining the rights of the parties. In the alternative, Escrow Agent
may, at its discretion, at any time, commence a civil action to interplead any conflicting demands
to a court of competent jurisdiction.
2387751.1 3
6.2 Indemnification of Escrow Agent. To the extent permitted by law, the
Town and Miller agree to indemnify and save harmless Escrow Agent against all costs, damages,
attorney’s fees, expenses and liabilities, which it may incur or sustain in connection with these
instructions or any court action arising therefrom.
6.3 Escrow Agent Standard of Care. The Town and Miller agree that, unless
otherwise herein expressly provided, the Escrow Agent shall not be held liable for any action
taken or omitted under this Escrow Agreement, so long as the Escrow Agent shall have acted in
good faith and without negligence. The Escrow Agent shall have no responsibility to inquire into
or determine the genuineness, authenticity or sufficiency of any documents or instruments
submitted to it in connection with its duties hereunder. The Escrow Agent shall be entitled to
deem the signatories of any document or instrument submitted to it hereunder as being
authorized to sign such documents or instruments on behalf of the party submitting such
documents or instruments, and shall be entitled to rely upon the genuineness of signatures or
such signatories without inquiry and without requiring substantiating evidence. At the option of
Escrow Agent, facsimile copies of documents may be accepted as originals.
7. Escrow Fees. The Town agrees to pay Escrow Agents fees as follows:
$________ Set-up and first year holding fee – Non-refundable
$________ Annual Holding Fee (after first year)
$________ Interest account fee (optional)
$________ Per receipt into interest account – if required
$________ Per wire transfer received
$________ Per disbursement (after one)
$________ Per Wire Transfer fee (in addition to disbursement fee) – if
required
All fees are to be paid in advance, except disbursement fees. Escrow Agent is hereby given a
lien on all escrowed assets for all fees, expenses, taxes, indebtedness and other financial
obligations that may become owing to Escrow Agent arising hereunder, including any
indemnities prescribed herein. In all cases, Escrow Agent may deduct any unpaid fees, with
prior notice, before final disbursement of the escrow funds.
8. 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 (i) delivered to the party at the address set forth below, (ii) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below or (iii) given
to a recognized and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Mayor
2387751.1 4
With copy to: GUST ROSENFELD, P.L.C.
One East Washington Street, Suite 1600
Phoenix, Arizona 85004-2553
Attn: Andrew J. McGuire, Esq.
If to Miller: Grady E. Miller
__________________________
__________________________
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 (i) when delivered to the party, (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (iii) 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. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
the date first set forth above.
“Town” “Miller”
TOWN OF FOUNTAIN HILLS, an
Arizona municipal corporation
Linda M. Kavanagh, Mayor Grady E. Miller
ATTEST:
Bevelyn J. Bender, Town Clerk
“Escrow Agent”
_______________________________________,
an Arizona corporation
By:
_________________, President