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HomeMy WebLinkAbout111201PREVISED: 11/30/11 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, DECEMBER 1, 2011 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ Councilmembers of the Town of Fountain Hills will attend either in person o r by telephone conference call; a quorum of the Town’s various Commissions or Boards 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. PROCEDURE FOR ADDRESSING THE COUNCIL Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council Chamber Lobby and near the Clerk’s position on the dais. Speakers will be called in the order in which the speaker cards were rec eived either by the Clerk or the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to state their name prior to commenting and to direct their comments to the Presiding Officer and not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a later time or (ii) transfer any portion of their time to another speaker. If there is a Public Hearing, please submit the speaker card to speak to that issue during the Public Hearing. Individual speakers will be allowed three contiguous minutes to address the Council. Time limits may be waived by (i) discretion of the Town Manager upon request by the speaker not less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the Mayor either prior to or during a Meeting. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. Mayor Jay T. Schlum Councilmember Dennis Brown Councilmember Tait D. Elkie Councilmember Dennis Contino Councilmember Cassie Hansen Vice Mayor Ginny Dickey Councilmember Henry Leger Z:\Council Packets\2011\R12-1-11\Packet\111201A.docx Last printed 11/30/2011 3:14 PM Page 2 of 3  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum  INVOCATION – Pastor Steve Bergeson, Shepherd of the Hills Lutheran Church  ROLL CALL – Mayor Jay T. Schlum  MAYOR’S REPORT i) None.  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) None. CALL TO THE PUBLIC Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed on the agenda. Any such comment (i) must be within the jurisdiction of the Council and (ii) is subject to reasonable time, place, and manner restrictions. The Council will not discuss or take legal action on matters raised during “Call to the Public” unless the matters are properly noticed for discussion and legal action. At the conclusion of the call to the public, individual Councilmembers may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on a future Council agenda. CONSENT AGENDA ITEMS 1. CONSIDERATION for approval of RESOLUTION 2011- 46, abandoning whatever right, title, or interest the Town has in certain portions of the public utility and drainage easement located at the rear property line of Plat 602-A, Block 1, Lot 28 (15626 E. Cavern Drive) as recorded in Book 161 of Maps, Page 42, Records of Maricopa County, Arizona. Case Number EA11-06 (Hollister). 2. CONSIDERATION of approving the AGENT CHANGE/ACQUISITION OF CONTROL LIQUOR LICENSE APPLICATION submitted by Gaspare Manno, Owner/Agent of Siculi, LLC DBA Sapori D'Italia located at 11865 N Saguaro Blvd., Fountain Hills, AZ. This is for a series 12 license (Restaurant). REGULAR AGENDA ITEMS 3. CONSIDERATION of APPOINTING four (4) citizens to serve on the Senior Services Advisory Commission for two (2) year terms beginning January 1, 2012, and ending December 31, 2013. 4. CONSIDERATION of APPOINTING one (1) citizen to serve on the Community Center Advisory Commission for a two (2) year term beginning January 1, 2012, and ending December 31, 2013. 5. CONSIDERATION of APPOINTING three (3) citizens to serve on the Parks and Recreation Commission for two (2) year terms beginning January 1, 2012, and ending December 31, 2013. Z:\Council Packets\2011\R12-1-11\Packet\111201A.docx Last printed 11/30/2011 3:14 PM Page 3 of 3 6. CONSIDERATION of APPOINTING three (3) citizens to serve on the McDowell Mountain Preservation Commission for three (3) year terms beginning January 1, 2012, and ending December 31, 2014. 7. CONSIDERATION of APPOINTING two (2) citizens to serve on the Public Safety Advisory Commission for two (2) year terms beginning December 1, 2011, and ending October 31, 2013. 8. PUBLIC HEARING of a request for a SPECIAL USE PERMIT to allow the installation of a golf ball net at 10406 N. Demeret Drive. Located in the R1-8 RUPD Zoning District. Case # SU2011-05 9. CONSIDERATION of a request for a SPECIAL USE PERMIT to allow the installation of a golf ball net at 10406 N. Demeret Drive. Located in the R1-8 RUPD Zoning District. Case # SU2011-05 10. PUBLIC HEARING of a SPECIAL USE PERMIT for Verizon Wireless, to allow the installation of a 26’ tall stealth Saguaro cellular antenna array at 9800 N. Summer Hill Blvd, located in the “R1-6A/Resort” zoning district. Case # SU2011-06 11. CONSIDERATION of a SPECIAL USE PERMIT for Verizon Wireless, to allow the installation of a 26’ tall stealth Saguaro cellular antenna array at 9800 N. Summer Hill Blvd, located in the “R1-6A/Resort” zoning district. Case # SU2011-06 12. CONSIDERATION of RESOLUTION 2011-38, amending the Development Agreement between the Town of Fountain Hills and FireRock Plaza, LLC. 13. CONSIDERATION AND POSSIBLE DIRECTION to staff to authorize an unbudgeted General Fund expenditure, in the amount of $28,017.21, to the Arizona Department of Water Resources (ADWR) for the annual Municipality Fee as established by the Arizona Legislature under A.R.S. §45-118. 14. CONSIDERATION of AUTHORIZING a budget transfer in the amount of $28,017.21, from the Development Services Building Safety Division Salaries line item to Development Services, Engineering Wash maintenance line item. 15. COUNCIL DISCUSSION/DIRECTION to the Interim Town Manager/Finance Director Julie Ghetti. Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii) directing staff to conduct further research and report back to the Council: A. NONE. 16. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Interim Town Manager/Finance Director Julie Ghetti. 17. ADJOURNMENT. DATED this 23rd day of November 2011. _____________________________________ Bevelyn J. Bender, 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. REVISED: 11/30/11 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, DECEMBER 1, 2011 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 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 Commissions or Boards 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. PROCEDURE FOR ADDRESSING THE COUNCIL Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council Chamber Lobby and near the Clerk’s position on the dais. Speakers will be called in the order in which the speaker cards were received either by the Clerk or the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to state their name prior to commenting and to direct their comments to the Presiding Officer and not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a later time or (ii) transfer any portion of their time to another speaker. If there is a Public Hearing, please submit the speaker card to speak to that issue during the Public Hearing. Individual speakers will be allowed three contiguous minutes to address the Council. Time limits may be waived by (i) discretion of the Town Manager upon request by the speaker not less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the Mayor either prior to or during a Meeting. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. Mayor Jay T. Schlum Councilmember Dennis Brown Councilmember Tait D. Elkie Councilmember Dennis Contino Councilmember Cassie Hansen Vice Mayor Ginny Dickey Councilmember Henry Leger Z:\Council Packets\2011\R12-1-11\Packet\111201A.docx Last printed 11/30/2011 3:14 PM Page 2 of 3  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum  INVOCATION – Pastor Steve Bergeson, Shepherd of the Hills Lutheran Church  ROLL CALL – Mayor Jay T. Schlum  MAYOR’S REPORT i) None.  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) None. CALL TO THE PUBLIC Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed on the agenda. Any such comment (i) must be within the jurisdiction of the Council and (ii) is subject to reasonable time, place, and manner restrictions. The Council will not discuss or take legal action on matters raised during “Call to the Public” unless the matters are properly noticed for discussion and legal action. At the conclusion of the call to the public, individual Councilmembers may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on a future Council agenda. CONSENT AGENDA ITEMS 1. CONSIDERATION for approval of RESOLUTION 2011- 46, abandoning whatever right, title, or interest the Town has in certain portions of the public utility and drainage easement located at the rear property line of Plat 602-A, Block 1, Lot 28 (15626 E. Cavern Drive) as recorded in Book 161 of Maps, Page 42, Records of Maricopa County, Arizona. Case Number EA11-06 (Hollister). 2. CONSIDERATION of approving the AGENT CHANGE/ACQUISITION OF CONTROL LIQUOR LICENSE APPLICATION submitted by Gaspare Manno, Owner/Agent of Siculi, LLC DBA Sapori D'Italia located at 11865 N Saguaro Blvd., Fountain Hills, AZ. This is for a series 12 license (Restaurant). REGULAR AGENDA ITEMS 3. CONSIDERATION of APPOINTING four (4) citizens to serve on the Senior Services Advisory Commission for two (2) year terms beginning January 1, 2012, and ending December 31, 2013. 4. CONSIDERATION of APPOINTING one (1) citizen to serve on the Community Center Advisory Commission for a two (2) year term beginning January 1, 2012, and ending December 31, 2013. 5. CONSIDERATION of APPOINTING three (3) citizens to serve on the Parks and Recreation Commission for two (2) year terms beginning January 1, 2012, and ending December 31, 2013. Z:\Council Packets\2011\R12-1-11\Packet\111201A.docx Last printed 11/30/2011 3:14 PM Page 3 of 3 6. CONSIDERATION of APPOINTING three (3) citizens to serve on the McDowell Mountain Preservation Commission for three (3) year terms beginning January 1, 2012, and ending December 31, 2014. 7. CONSIDERATION of APPOINTING two (2) citizens to serve on the Public Safety Advisory Commission for two (2) year terms beginning December 1, 2011, and ending October 31, 2013. 8. PUBLIC HEARING of a request for a SPECIAL USE PERMIT to allow the installation of a golf ball net at 10406 N. Demeret Drive. Located in the R1-8 RUPD Zoning District. Case # SU2011-05 9. CONSIDERATION of a request for a SPECIAL USE PERMIT to allow the installation of a golf ball net at 10406 N. Demeret Drive. Located in the R1-8 RUPD Zoning District. Case # SU2011-05 10. PUBLIC HEARING of a SPECIAL USE PERMIT for Verizon Wireless, to allow the installation of a 26’ tall stealth Saguaro cellular antenna array at 9800 N. Summer Hill Blvd, located in the “R1-6A/Resort” zoning district. Case # SU2011-06 11. CONSIDERATION of a SPECIAL USE PERMIT for Verizon Wireless, to allow the installation of a 26’ tall stealth Saguaro cellular antenna array at 9800 N. Summer Hill Blvd, located in the “R1-6A/Resort” zoning district. Case # SU2011-06 12. CONSIDERATION of RESOLUTION 2011-38, amending the Development Agreement between the Town of Fountain Hills and FireRock Plaza, LLC. 13. CONSIDERATION AND POSSIBLE DIRECTION to staff to authorize an unbudgeted General Fund expenditure, in the amount of $28,017.21, to the Arizona Department of Water Resources (ADWR) for the annual Municipality Fee as established by the Arizona Legislature under A.R.S. §45-118. 14. CONSIDERATION of AUTHORIZING a budget transfer in the amount of $28,017.21, from the Development Services Building Safety Division Salaries line item to Development Services, Engineering Wash maintenance line item. 15. COUNCIL DISCUSSION/DIRECTION to the Interim Town Manager/Finance Director Julie Ghetti. Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii) directing staff to conduct further research and report back to the Council: A. NONE. 16. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Interim Town Manager/Finance Director Julie Ghetti. 17. ADJOURNMENT. DATED this 23rd day of November 2011. _____________________________________ Bevelyn J. Bender, 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. Redacted Redacted Redacted Redacted Redacted Town of Fountain Hills Staff Presentation Golf Net 10406 N. Demeret Drive SU #2011-05 Location Map FENCE LOCATION Criteria “Golf ball fences may only be developed on lots that directly abut a golf course or driving range, however, they may not be developed within any front or street-side yard setback.” “Golf ball fences should only be developed within Six-Hundred (600) feet of the forward-most golf course tee box or driving range position. Golf course fences to protect against errant secondary golf shots may be approved due to unusual site or course layout circumstances.” •“Golf ball fences shall be set back from any abutting residential property at a distance not less than the height of the fence. Golf ball fences may be located nearer to such a property line with the prior written consent of the abutting residential property owner.” “The maximum height of a golf ball fence shall not exceed twenty-five (25) feet.” •“Pole color must blend in with background features as viewed from neighboring properties to minimize its visibility. Net color shall be black.” “Landscaping should be used where appropriate to obscure the poles from the neighboring properties.” Recommendations APPROVE Special Use Permit To allow the installation of a 25’ tall Golf Ball Net at 10406 N. Demeret Drive subject to the stipulations outlined in the staff report. Case #SU2011-05 Redacted Location Map ANTENNA LOCATION Factors to Consider Height of the proposed tower •Proximity of the tower to residential structures and residentially zoned district boundaries Nature of uses on adjacent and nearby properties Surrounding topography •Surrounding tree coverage and foliage Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness Proposed ingress and egress Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures APPROVE Special Use Permit To allow Verizon Wireless Communications to construct a 26’ tall Faux Saguaro Cactus wireless antenna at 9800 N. Summer Hill Blvd subject to the stipulations outlined in the staff report. Case #SU2011-06 1604819.1 RESOLUTION NO. 2011-38 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING THE FIRST AMENDMENT TO DEVELOPMENT AGREEMENT WITH FIREROCK PLAZA, L.L.C. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The First Amendment to Development Agreement between the Town of Fountain Hills and Wells Fargo Bank, N.A., as successor in interest to Firerock Plaza L.L.C. (the “First Amendment”) is hereby approved in substantially the form 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 First 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, December 1, 2011. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Julie Ghetti, Interim Town Manager Andrew J. McGuire, Town Attorney 1604819.1 EXHIBIT A TO RESOLUTION NO. 2011-38 [First Amendment to Development Agreement] See following pages. 1594420.6 WHEN RECORDED, RETURN TO: ATTENTION: TOWN CLERK TOWN OF FOUNTAIN HILLS 16705 E. Avenue of the Fountains Fountain Hills, Arizona 85268 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA, L.L.C. THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First Amendment”) is entered into December 1, 2011 by and between the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation (the “Town”) and WELLS FARGO BANK, National Association (“Wells Fargo”) as successor in interest to FIRE BRICK PLAZA LLC, an Arizona limited liability company, which was the successor in interest to FIREROCK PLAZA LLC, an Arizona limited liability company (the “Developer”). RECITALS A. Wells Fargo is the owner of certain real Property located on the south side of Shea Boulevard, north of the Beeline Highway, within the corporate limits of the Town consisting of approximately 2.61 acres, as more particularly described in Exhibit 1, attached hereto and incorporated herein by reference (the “Property”). B. The Developer and the Town entered into that certain Development Agreement dated March 16, 2006 and recorded as Document No. 2006-0525632 in the Official Records of Maricopa County, Arizona (the “Original Agreement”) in order to facilitate the development of the Property by providing for among other things, conditions, terms, restrictions and requirements for the construction and installation of certain infrastructure improvements as more particularly identified in Section 1.2 of the Original Agreement and depicted on the Site Plan for the Property prepared by DeLorme & Associates, dated February 16, 2006. C. Wells Fargo became the successor in interest to the Developer through that certain Trustee’s Deed and Bill of Sale, recorded August 12, 2010 as Document No. 2010-690736 in the Official Records of Maricopa County, Arizona, a true and correct copy of which attached hereto as Exhibit 2 and incorporated herein by reference. D. The Town and Wells Fargo desire to amend the Original Agreement to terminate the Developer’s obligation to install a traffic signal under Section 1.2(a) of the Original Agreement and to deem fully satisfied the Developer's obligations to complete all improvements 1594420.6 2 under Sections 1.2(b), (c) and (d) that remain incomplete as of the date of this First Amendment (collectively, the “Incomplete Improvements”). AGREEMENT NOW, THEREFORE, IN CONSIDERATION of the foregoing recitals, which are incorporated herein by reference, the mutual promises and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Payment in Lieu of Incomplete Improvements. The Town and Wells Fargo agree that, in lieu of completion of the Incomplete Improvements, Wells Fargo may satisfy the Developer’s obligations under Section 1.2 of the Original Agreement by paying to the Town the sum of $200,000.00 in lawful U.S. currency (the “In Lieu Payment”) as set forth below. 1.1 Timing of Payment. Wells Fargo shall pay the In Lieu Payment to the Town in two payments, as follows: (A) $50,000 within ten business days of the date the Town executes this First Amendment; and (B) $150,000 prior to the date of the earliest to occur of the following: (1) issuance of a certificate of occupancy for a new tenant on the Property or (2) close of escrow of any transaction conveying the Property, or any portion thereof, from Wells Fargo to any other party. 1.2 Effect of Payment. Upon receipt of the In Lieu Payment, the Town shall deem the Developer’s obligations under Section 1.2 of the Original Agreement fully satisfied and shall not look to Wells Fargo or its successor in interest to pay for or install the Incomplete Improvements as a condition of development on the Property. Additionally, after the payment of the In Lieu Payment, the Town shall not unreasonably delay or withhold issuance of any certificate of occupancy for any portion of the Property due to the Incomplete Improvements. 1.3 Town’s Anticipated Improvements. The Town intends to complete a portion of the Incomplete Improvements in conjunction with its Shea Boulevard capital improvement project (S6005), which is currently under design (the “Shea Improvements”). To the extent practical and at the Town’s sole discretion, the Town will include the offsite improvements that comprise a portion of the Incomplete Improvements, with the exception of the traffic signal, in the design for the Shea Improvements, but is under no obligation to do so. 2. Traffic Signal. Section 1.2(a) of the Original Agreement is hereby deleted, and neither Wells Fargo nor any successor owner of the Property shall be obligated for the installation or payment of a traffic signal in connection with the Property, and no future permits or certificates of occupancy shall be conditioned upon the installation of, or payment (in whole or in part) for, any traffic signal; provided, however, that in the event that Wells Fargo or its successor in interest later requests a traffic signal serving the Property, the cost of design and installation of such traffic signal shall be the sole responsibility of such requesting party. 3. Receipt of Payment. The Town acknowledges and agrees that the payment required under Section 2.1 of the Original Agreement has been paid in full. 1594420.6 3 4. Notices and Requests. The notice provisions set forth in Section 4 of the Original Agreement are hereby modified to update the addresses for notice as follows: If to the Town: Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 Facsimile: (480) 837-3145 Attn: Town Manager With copy to: GUST ROSENFELD, P.L.C. One East Washington Street, Suite 1600 Phoenix, Arizona 85004-2553 Facsimile: (602) 254-4878 Attn: Andrew J. McGuire, Esq. If to Wells Fargo: Wells Fargo Bank 2030 Main Street, Suite 100 Irvine, California 92614 Facsimile: Attn: Peter Moon With a copy to: Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004 Facsimile: (602) 229-5690 Attn: Stanton E. Johnson, Esq. 5. Effect of Amendment. In all other respects, the Original Agreement is affirmed and ratified and, except as expressly modified herein, all terms and conditions of the Original Agreement shall remain in full force and effect. 6. Non-Default. By executing this First Amendment, Wells Fargo affirmatively asserts that (i) the Town is not currently in default, and, to the actual knowledge of Wells Fargo, has not been in default at any time prior to this First Amendment, under any of the terms or conditions of the Original Agreement and (ii) any and all claims, known or unknown relating to the Original Agreement and existing on or before the date of this First Amendment are forever waived. 7. Conflict of Interest. This First Amendment may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511. 8. Counterparts. This First Amendment may be executed in any number of counterparts, all of which, when taken together, shall constitute one and the same instrument. 1594420.6 4 [SIGNATURES ON FOLLOWING PAGES] 1594420.6 5 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 Julie Ghetti, Interim Town Manager ATTEST: Bevelyn J. Bender, Town Clerk (ACKNOWLEDGEMENT) STATE OF ARIZONA ) )ss. County of ) This First Amendment to Development Agreement, dated November 17, 2011, consisting of three pages (excluding signature pages and exhibits), was acknowledged before me __________, 2011, by Julie Ghetti, the Interim Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. _____________________________________________ Notary Public in and for the State of Arizona (affix notary seal here) 1594420.6 6 “Wells Fargo” WELLS FARGO BANK, National Association By: Name: Title: (ACKNOWLEDGEMENT) STATE OF CALIFORNIA ) ) COUNTY OF ) On _________________ before me, ________________________________________________ (insert name and title of the officer) personally appeared ____________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ____________________________ (Seal) 1594420.6 EXHIBIT 1 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA, L.L.C. [Legal Description] Lots 5 and 6, Block 6 of FOUNTAIN HILLS ARIZONA Final Plat No. 412-B, according to the Plat of Record in the Office of the County Recorder of Maricopa County, Arizona, recorded in Book 163 of Maps, Page 2; EXCEPT all minerals as reserved unto the United States of America in patent of said land recorded February 28, 1956 in Docket 1839, Page 426, Records of Maricopa County, Arizona; and EXCEPT all gas, coal and minerals whatsoever, already found or which may hereafter be found in or under said land; and EXCEPT all underground water, in, under or flowing through said land and water rights appurtenant thereto as reserved in Instrument recorded in Docket 13772, Pages 1142 and 1144. 1594420.6 EXHIBIT 2 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA, L.L.C. [Wells Fargo Trustee’s Deed] See following pages.