HomeMy WebLinkAbout160222P��AINI,tji
NOTICE OF THE
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SPECIAL SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
Mayor Linda M. Kavanagh
Councilmember Dennis Brown
Councilmember Nick DePorter
Councilmember Cassie Hansen
TIME: 5:15 P.M. — SPECIAL SESSION
WHEN: MONDAY, FEBRUARY 22, 2016
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
Vice Mayor Henry Leger
Councilmember Alan Magazine
Councilmember Cecil A. Yates
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town's
various Commission, Committee or Board members may be in attendance at the Council meeting.
Notice is hereby given that pursuant to A.R.S. § 1-602.A.9, subject to certain specified statutory exceptions, parents have a right to
consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Town
Council are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording.
Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal
action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a
recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. § 1-602.A.9 have been waived.
SPECIAL SESSION AGENDA
CALL TO ORDER AND ROLL CALL — Mayor Linda M. Kavanagh
CONSIDERATION of approving a SETTLEMENT OFFER relating to a tax enforcement
action.
2. ADJOURNMENT.
DATED this 19th day of February, 2016.
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Bevelyn J. en er, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-
5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this
meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council
with this agenda are available for review in the Clerk's office.
z:\council packets\2016\spll60222\160222a.docx Last Printed: 2/19/2016 5:05 PM Page 1 of 1
��AINI,tji
NOTICE OF THE
q��hat�i oo
MW
SPECIAL SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
Mayor Linda M. Kavanagh
Councilmember Dennis Brown
Councilmember Nick DePorter
Councilmember Cassie Hansen
TIME: 5:15 P.M. — SPECIAL SESSION
WHEN: MONDAY, FEBRUARY 22, 2016
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
Vice Mayor Henry Leger
Councilmember Alan Magazine
Councilmember Cecil A. Yates
16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ
Councilmembers of the Town of Fountain Hills will attend either in person or by telephone conference call; a quorum of the Town's
various Commission, Committee or Board members may be in attendance at the Council meeting.
Notice is hereby given that pursuant to A.R.S. § 1-602.A.9, subject to certain specified statutory exceptions, parents have a right to
consent before the State or any of its political subdivisions make a video or audio recording of a minor child. Meetings of the Town
Council are audio and/or video recorded and, as a result, proceedings in which children are present may be subject to such recording.
Parents, in order to exercise their rights may either file written consent with the Town Clerk to such recording, or take personal
action to ensure that their child or children are not present when a recording may be made. If a child is present at the time a
recording is made, the Town will assume that the rights afforded parents pursuant to A.R.S. § 1-602.A.9 have been waived.
SPECIAL SESSION AGENDA
CALL TO ORDER AND ROLL CALL — Mayor Linda M. Kavanagh
CONSIDERATION of approving a SETTLEMENT OFFER relating to a tax enforcement
action.
2. ADJOURNMENT.
DATED this 19th day of February, 2016.
hlw`ngz"I'a�
Bevelyn J. en er, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-
5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this
meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council
with this agenda are available for review in the Clerk's office.
z:\council packets\2016\spll60222\160222a.docx Last Printed: 2/19/2016 5:05 PM Page 1 of 1
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (the "Agreement") is entered into
February 22, 2016 by and among CM Realty Holdings, LLC, an Arizona limited liability
company ("Holdings"), Connie Martin, an unmarried woman ("Martin") and The Town of
Fountain Hills, an Arizona municipal corporation (the "Town"). Holdings, Martin, and the
Town may be referred to individually as a "Party" and collectively as the "Parties."
RECITALS:
A. Martin owns or controls Holdings.
B. Holdings is in the business of owning, developing, renting, and otherwise
profiting from real estate projects and certain business ventures in Maricopa County, Arizona.
C. Holdings was and is required to, among other things, pay certain transaction
privilege taxes to the Town.
D. On or about March 14, 2013, the Town, through its agents, sent a notice of audit
to Holdings, care of Martin, regarding underpayment of transaction privilege taxes. The Town
subsequently conducted an audit.
E. On or about April 3, 2014, the Town, through its agents, sent certified letters to
Holdings, care of Martin, regarding the results of the audit. The Town subsequently revised its
audit findings.
F. On or about August 7, 2014, the Town, through its agents, sent certified letters to
Holdings, care of Martin, regarding its revised audit findings. The outstanding transaction
privilege taxes identified in the Town's audits are collectively referred to as the "Unpaid Taxes."
G. On or about August 11, 2014, the Town filed seven liens against various pieces of
real property in which Holdings and/or Martin have an interest.
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H. On or about November 13, 2014, the Town filed revised liens as to two of the
pieces of real property in which Holdings and/or Martin have an interest.
I. On or about February 3, 2015, the Town filed a revised lien as to one piece of real
property in which Holdings and/or Martin have an interest. The liens described above are
collectively referred to as the "Tax Liens."
J. To date, Holdings and Martin have breached their respective obligations to the
Town by, among other things, failing to pay the Unpaid Taxes, despite receiving written demand
from the Town.
K. Each Party desires to resolve the claims arising from the Unpaid Taxes and all
other disputes between them without further dispute or litigation.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties have made this Agreement in order to resolve the
disputes among them according to the terms, conditions and provisions hereof.
AGREEMENT
1. Incorporation of Recitals. All of the foregoing recitals are incorporated by
reference as though fully set forth herein.
2. Payment by Martin. On or before March 1, 2016, Martin shall pay the Town the
sum of $140,000 in full and final satisfaction of the Unpaid Taxes. This Agreement and the
settlement it encompasses are entirely conditioned upon approval of the Town Council of the
Town, as to which no promises, representations or warranties of any kind have been made. It
shall be in the sole and unfettered discretion of the Town Council whether to approve or not
approve of the Agreement and no such refusal or failure to approve the Agreement shall give rise
to any damages or claims of any nature on the part of Martin or Holdings, but the Parties shall
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continue to hold the same positions and interests as they did prior to entering into this
Agreement; nor may any such refusal or failure to approve this Agreement be used for any
purpose at trial or on the merits of the Lawsuit.
3. Release of Claims. Upon execution and full performance of this Agreement, and
in consideration of the mutual covenants and promises contained in this Agreement, and the
other consideration provided by the mutual covenants and releases in this Agreement, the Parties
shall be deemed to release and forever discharge each other, together with their predecessors and
successors, attorneys, and all persons who acted on their behalf, of and from any and all liability,
claims, demands, and causes of action arising out of the Unpaid Taxes. This release includes all
unknown claims, matured or unmatured, in addition to the claims of which the Parties are
presently aware, but only relating to the Unpaid Taxes. This release does not release the Parties
from their respective obligations to each other created within this Agreement, nor does it release
Martin or Holdings from any obligations to pay transaction privilege taxes otherwise due to the
Town, other than the Unpaid Taxes.
4. Release of Liens. If this Agreement is approved by the Town Council, within 10
days of receiving the payment referenced in Section 2 above, the Town will record all documents
necessary to release the Tax Liens arising from the Unpaid Taxes against Holdings and Martin.
5. Attorneys' Fees. In the event any Party hereto finds it necessary to employ legal
counsel to bring an action at law or other proceedings against any other Party to enforce any of
the terms, covenants, or conditions hereof, the Party prevailing in such action or proceeding shall
be paid all reasonable attorneys' fees by the other Party, and in the event any judgment is secured
by such prevailing Party, all such reasonable attorneys' fees shall be included in any such
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judgment. The amount of reasonable attorneys' fees shall be determined by the court and not by
a fury.
6. Authority; Fair Interpretation. The Parties expressly represent and warrant that
they are authorized and competent to execute the Agreement. Further, the Parties expressly
acknowledge that they have been represented by their respective attorneys in connection with the
preparation and execution of this Agreement. This Agreement has been drafted jointly by the
Parties and their respective attorneys, and the terms, conditions and provisions of this Agreement
shall be construed only according to their fair import.
7. Further Actions. The Parties agree that each of them shall take such further action
and execute such further documents, if any, which may be necessary or appropriate to implement
this Agreement according to its terms. This Agreement may be specifically enforced by any
Party.
8. Governing Law. This Agreement shall be governed by the internal laws of the
State of Arizona, without regard to conflicts of laws principles.
9. Entire Agreement. With respect to its subject matter, including without
limitation, all matters incorporated by reference herein, this Agreement is a complete integration
and final expression of the Parties' rights and duties. Conversely, except as expressly set forth
herein, this Agreement does not grant any rights, nor affect the liabilities of any person or entity
not a party hereto.
10. Time of the Essence. Time is of the essence of this Agreement.
11. Severability. Should any term, provision, covenant or condition of this
Agreement be held to be void or invalid, the same shall not affect any other term, provision,
3615477.1
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covenant or condition of this Agreement, but the remainder hereof shall be effective as though
such term, provision, covenant or condition had not been contained herein.
12. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Unless and until this Agreement is signed by all Parties, it shall be
of no force or effect. The Parties agree that signatures transmitted by facsimile or other
commercially acceptable electronic means (including but not limited to "pdf') shall be deemed
to be original signatures and fully enforceable.
13. No Influence. The Parties agree and acknowledge that no representation of any
kind concerning any subject has been made to them by any other Party hereby released or by any
agent, representative, or attorney of any such Party, which has in any way influenced the
undersigned's decision to enter into this Agreement, other than as expressly set forth in this
Agreement.
14. No Third -Party Beneficiaries. This Agreement is entered into for the mutual
benefit of the Parties hereto only. Nothing herein shall be construed to be for the benefit of any
third party, nor is it intended that any provision shall be for the benefit of, or enforceable by, any
third party.
[SIGNATURE PAGES FOLLOW]
2615477.1
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
"Town"
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Grady E. Miller, Town Manager
ATTEST:
Bevelyn J. Bender, Town Clerk
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On , 2016, before me personally appeared Grady E. Miller, 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)
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
2615477.1
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"Holdings"
CM REALTY HOLDINGS, LLC, an
Arizona limited liability company
Connie Martin, Member
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On , 2016, before me personally appeared Connie Martin, the
Member of CM Realty Holdings, LLC, an Arizona limited liability company, whose identity was
proven to me on the basis of satisfactory evidence to be the person who she claims to be, and
acknowledged that she signed the above document on behalf of the company.
Notary Public
(Affix notary seal here)
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
2615477.1
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"Martin"
Connie Martin
(ACKNOWLEDGMENT)
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On , 2016, before me personally appeared Connie Martin,
whose identity was proven to me on the basis of satisfactory evidence to be the person who she
claims to be, and acknowledged that she signed the above document.
Notary Public
(Affix notary seal here)
3615477.1
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