HomeMy WebLinkAbout111006PREVISED: 10/3/11
NOTICE OF THE
REGULAR SESSION OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 6:30 P.M.
WHEN: THURSDAY, OCTOBER 6, 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 Me eting 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
Vice Mayor Dennis Contino Councilmember Cassie Hansen
Councilmember Ginny Dickey Councilmember Henry Leger
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CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum
INVOCATION – Mr. Kurt Beckman, Christ Church
ROLL CALL – Mayor Jay T. Schlum
MAYOR’S REPORT
i) November 8, 2011 Election Reminders:
This will be the Town’s first all mail ballot election; ballots will be mailed on
October 13th to each voter who is registered by the October 10th registration deadline.
Publicity Pamphlets for the November 8, 2011, Bond Election, were mailed last
week to each household in which a registered voter resides. The Publicity Pamphlet
is also available on the Town’s election website or at Town Hall.
Any questions on voter registration status, contact the Town Clerk’s office (480-816-
5100) or the Maricopa County Recorder’s office (480-506-1511).
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
i) ROTATION of the VICE MAYOR POSITION to Councilmember Dickey.
Pursuant to Section 2-2-2 of the Fountain Hills Town Code, each member of the
Council, except the Mayor, shall serve an eight-month term as Vice Mayor and shall
perform the duties of the Mayor during his absence or disability.
ii) The Mayor will read a PROCLAMATION declaring October 2011, McDowell
Mountain Month.
iii) The Mayor will read a PROCLAMATION declaring October 2011, Fire Prevention
Month.
iv) The Mayor will read a PROCLAMATION recognizing Customer Service Week
(October 3 – 7, 2011).
v) PRESENTATION by Maricopa County Sheriffs’ Office Captain Joe Rodriquez
regarding the “TEXT-A-TIP” PROGRAM.
vi) PRESENTATION of the CERTIFICATE OF EXCELLENCE INVESTMENT
POLICY awarded to the Town of Fountain Hills by the Association of Public
Treasurers of the United States and Canada.
vii) UPDATE regarding the TOWN BUSINESS OUTREACH ACTIVITIES to fill
vacant office and retail space by Lori Gary, Economic Development Administrator,
and an ECONOMIC UPDATE by Interim Town Manager Julie Ghetti.
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.
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CONSENT AGENDA ITEMS
1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from
September 13 and 15, 2011.
2. CONSIDERATION of RESOLUTION 2011-39, approving an intergovernmental
agreement with the Fort McDowell Yavapai Nation relating to Proposition 202 funding.
3. CONSIDERATION of authorizing a BUDGET TRANSFER in the amount of $138,000
within the Special Revenue Fund from miscellaneous line item to the Proposition 202 line
item.
4. CONSIDERATION of RESOLUTION 2011-40, approving the First Amendment to Final
Settlement Agreement with MCO Properties L.P.
REGULAR AGENDA ITEMS
5. CONSIDERATION of APPOINTING one citizen to fill a vacancy on the Strategic
Planning Advisory Commission (SPAC) for a term expiring on June 30, 2013.
6. CONSIDERATION of a request to extend the review period for an ENCROACHMENT
PERMIT submitted by Carolyn Redendo (Sofrita, LLC) for the purpose of creating an
outdoor seating and dining area located in front of the restaurant as well as creating a
performance area for flamenco dancers and other entertainment on the public sidewalk at
16848 E. Avenue of the Fountains.
7. CONSIDERATION of RESOLUTION 2011-35, approving an IGA between Maricopa
County and the Town for access to the Fountain Hills McDowell Mountain Preserve through
the use of adjoining trails in McDowell Mountain Regional Park.
8. CONSIDERATION of approving a Professional Services Agreement with the Boys &
Girls Clubs of Scottsdale, McKee Branch in the amount of $80,000 for the fiscal period July
1, 2011, through June 30, 2012, to provide youth programs.
9. CONSIDERATION of a PROFESSIONAL SERVICES AGREEMENT with the Fountain
Hills Community Theater in the amount of $72,240 for the fiscal period July 1, 2011 ,
through June 30, 2012, to sponsor theater performances for Fountain Hills residents.
10. CONSIDERATION of a PROFESSIONAL SERVICES AGREEMENT with the Extended
Hands Food Bank in the amount of $30,250 for the fiscal period July 1, 2011, through June
30, 2012, to provide food and social service referral for Fountain Hills residents.
11. CONSIDERATION WITH POSSIBLE DIRECTION TO STAFF regarding a request by
the Fountain Hills Chamber of Commerce relating to renaming a street in honor of the late
Councilmember Keith McMahan under the Town's adopted naming policy.
12. 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.
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13. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Interim
Town Manager/Finance Director Julie Ghetti.
14. ADJOURNMENT.
DATED this 29th day of September 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: 10/3/11
NOTICE OF THE
REGULAR SESSION OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 6:30 P.M.
WHEN: THURSDAY, OCTOBER 6, 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
Vice Mayor Dennis Contino Councilmember Cassie Hansen
Councilmember Ginny Dickey Councilmember Henry Leger
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CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum
INVOCATION – Mr. Kurt Beckman, Christ Church
ROLL CALL – Mayor Jay T. Schlum
MAYOR’S REPORT
i) November 8, 2011 Election Reminders:
This will be the Town’s first all mail ballot election; ballots will be mailed on
October 13th to each voter who is registered by the October 10th registration deadline.
Publicity Pamphlets for the November 8, 2011, Bond Election, were mailed last
week to each household in which a registered voter resides. The Publicity Pamphlet
is also available on the Town’s election website or at Town Hall.
Any questions on voter registration status, contact the Town Clerk’s office (480-816-
5100) or the Maricopa County Recorder’s office (480-506-1511).
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
i) ROTATION of the VICE MAYOR POSITION to Councilmember Dickey.
Pursuant to Section 2-2-2 of the Fountain Hills Town Code, each member of the
Council, except the Mayor, shall serve an eight-month term as Vice Mayor and shall
perform the duties of the Mayor during his absence or disability.
ii) The Mayor will read a PROCLAMATION declaring October 2011, McDowell
Mountain Month.
iii) The Mayor will read a PROCLAMATION declaring October 2011, Fire Prevention
Month.
iv) The Mayor will read a PROCLAMATION recognizing Customer Service Week
(October 3 – 7, 2011).
v) PRESENTATION by Maricopa County Sheriffs’ Office Captain Joe Rodriquez
regarding the “TEXT-A-TIP” PROGRAM.
vi) PRESENTATION of the CERTIFICATE OF EXCELLENCE INVESTMENT
POLICY awarded to the Town of Fountain Hills by the Association of Public
Treasurers of the United States and Canada.
vii) UPDATE regarding the TOWN BUSINESS OUTREACH ACTIVITIES to fill
vacant office and retail space by Lori Gary, Economic Development Administrator,
and an ECONOMIC UPDATE by Interim Town Manager Julie Ghetti.
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.
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CONSENT AGENDA ITEMS
1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from
September 13 and 15, 2011.
2. CONSIDERATION of RESOLUTION 2011-39, approving an intergovernmental
agreement with the Fort McDowell Yavapai Nation relating to Proposition 202 funding.
3. CONSIDERATION of authorizing a BUDGET TRANSFER in the amount of $138,000
within the Special Revenue Fund from miscellaneous line item to the Proposition 202 line
item.
4. CONSIDERATION of RESOLUTION 2011-40, approving the First Amendment to Final
Settlement Agreement with MCO Properties L.P.
REGULAR AGENDA ITEMS
5. CONSIDERATION of APPOINTING one citizen to fill a vacancy on the Strategic
Planning Advisory Commission (SPAC) for a term expiring on June 30, 2013.
6. CONSIDERATION of a request to extend the review period for an ENCROACHMENT
PERMIT submitted by Carolyn Redendo (Sofrita, LLC) for the purpose of creating an
outdoor seating and dining area located in front of the restaurant as well as creating a
performance area for flamenco dancers and other entertainment on the public sidewalk at
16848 E. Avenue of the Fountains.
7. CONSIDERATION of RESOLUTION 2011-35, approving an IGA between Maricopa
County and the Town for access to the Fountain Hills McDowell Mountain Preserve through
the use of adjoining trails in McDowell Mountain Regional Park.
8. CONSIDERATION of approving a Professional Services Agreement with the Boys &
Girls Clubs of Scottsdale, McKee Branch in the amount of $80,000 for the fiscal period July
1, 2011, through June 30, 2012, to provide youth programs.
9. CONSIDERATION of a PROFESSIONAL SERVICES AGREEMENT with the Fountain
Hills Community Theater in the amount of $72,240 for the fiscal period July 1, 2011,
through June 30, 2012, to sponsor theater performances for Fountain Hills residents.
10. CONSIDERATION of a PROFESSIONAL SERVICES AGREEMENT with the Extended
Hands Food Bank in the amount of $30,250 for the fiscal period July 1, 2011, through June
30, 2012, to provide food and social service referral for Fountain Hills residents.
11. CONSIDERATION WITH POSSIBLE DIRECTION TO STAFF regarding a request by
the Fountain Hills Chamber of Commerce relating to renaming a street in honor of the late
Councilmember Keith McMahan under the Town's adopted naming policy.
12. 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.
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13. SUMMARY of Council requests and REPORT ON RECENT ACTIVITIES by the Interim
Town Manager/Finance Director Julie Ghetti.
14. ADJOURNMENT.
DATED this 29th day of September 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.
Program used effectively by:
•NYPD
•LAPD
•Chicago
•Vancouver
Informs Police of:
• Drug Houses
• Underage Drinking Parties
• Vandalism
• Graffiti
100% Anonymous
Tip Routing
Send Tip Sent to
Canada
MCSO of F.H.
receives tip
Send stop to
discontinue
To: 274637
STOP
To: 274637
STOP
• Tip sent to Canadian Private company
• Text is encrypted and assigned 1st alias
• Only minimal info retained
• 2nd alias assigned
• Sent to MCSO of Fountain Hills
How to send a tip
•Create new text to 274637 (CRIMES)
To: 274637
STOP
To: 274637
STOP
How to send a tip
• Type in Keyword “MCSOFH” and tip
How to send a tip
• Send the word “stop” to discontinue
To: 274637
STOP
To: 274637
STOP
• Funding the program
• Coordinating the launch
•Implementing the marketing plan
Appeal to entire community
Marketing in town
Text-A-Tip in our Schools
School Resource Officer
Deputy Jill Ochsner
“Leading Edge” in Law Enforcement
A Safe Community
Questions About Text-A-Tip
Contact MCSO- FH
602-876-3104
Economic Development
Council Update
October 6, 2011
Presented by
Lori Gary, CEcD
Economic Development Administrator
Economic Development Update
1.Retail Recruitment
2.Business Recruitment
3.Increasing Avenue Vitality
Economic Development Update
Economic development is:
•Long Term
•Consistent Effort
•Persistence
•Filling the pipeline
Economic Development Update
Retail Recruitment
Provide citizens with desired products / services
which will increase their quality of life
•Retail trade shows & conferences
•Direct contact with retailer / representatives
Economic Development Update
Retail Recruitment
•Project cycle - 1 up to 2 years out
•Shopping center & space inventory
•Develop contacts with leasing agents & owners
of local properties
Economic Development Update
Retail Recruitment
Recent activity / locates:
•Senor Taco
•Sherwin Williams
•Dunkin Donuts
Economic Development Update
Retail Recruitment
How the pipeline works
ICSC
First
contact
inventory
ICSC
Leasing agent
collaboration
retail
study
analysis
ICSC
Leasing
agents
meeting
Inventory
update Announcements Sherwin
Williams
2009 2010 2011
Economic Development Update
Business Recruitment Strategy
•Attract businesses which bring quality jobs to
Fountain Hills
•Increase daytime population
•Build the community’s economic base (basic
sector industries)
Economic Development Update
Business Recruitment Strategy
•Target Industry Identification
•Analysis of existing business base.
–used categories from business licenses
–crossed referenced GPEC targets
–three potential target business categories
Economic Development Update
Business Recruitment Strategy
Target industry identification:
1.Professional, Scientific, and Technical Services
2.Health Care and Social Assistance
3.Finance and Insurance
Economic Development Update
Business Recruitment Strategy
Targeted industry sectors met three areas:
1.Currently in operation in the community, thereby,
most likely to be successful in targeting for
attraction.
2.Utilizes office space as part of the business
operations.
3.Will create quality jobs within the community.
Economic Development Update
Business Recruitment Strategy
Implementation Strategies - completed:
1.Develop list of target businesses.
2.Meeting with office space leasing agents and
owners – input & feedback.
3.Meeting with GPEC – input & feedback.
Economic Development Update
Business Recruitment Strategy
Implementation Strategies:
1.Market intelligence & competitive analysis.
—Partnering with GPEC to perform outreach to existing
businesses.
2.Case development
3.Targeted industry outreach preparation
—marketing material / collateral pieces / script
Economic Development Update
Increasing Avenue Vitality
Increase foot traffic & vibrancy on the Avenue.
•Focus on Saguaro Blvd. to Verde River Drive
•Vacant space & retail mix inventory
•Develop anchors
Economic Development Update
Increasing Avenue Vitality
•Develop strategy to attract 3rd restaurant
anchor
•Contacted leasing agents of vacant space
•Deutsch Architectural Group – developed
restaurant layout concept
Economic Development Update
Increasing Avenue Vitality
•Target list of regional restaurants developed
•Case development & targeted industry
outreach preparation
Economic Development Update
1.Retail Recruitment
2.Business Recruitment
3.Increasing Avenue Vitality
Economic Development Update
Efforts focused on:
•Long Term
•Consistent Effort
•Persistence
•Filling the pipeline
Questions?
Economic Update
October 6, 2011
Presented by:
Julie A. Ghetti, MPA, CPA, Interim Town Manager
Lori Gary, Economic Development Administrator
October 6, 2011
October 6, 2011
Actual versus budget = 98.4%
October 6, 2011
October 6, 2011
GENERAL FUND REVENUE BREAKDOWN
Total $3.1M
October 6, 2011
LOCAL SALES TAX REVENUE BREAKDOWN
Total $1.7M
October 6, 2011
October 6, 2011
October 6, 2011
October 6, 2011
October 6, 2011
Caution: economic outlook is volatile, affects
consumer confidence which affects retail sales
Revenues will be monitored before expenditures
are approved
Research continues on privatization versus in -
house and vice versa
Big question marks are sales tax and legislature
Economic Outlook
October 6, 2011
Questions?
October 6, 2011
1595827.1
RESOLUTION NO. 2011-40
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING THE FIRST AMENDMENT TO
FINAL SETTLEMENT AGREEMENT WITH MCO PROPERTIES L.P.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. The First Amendment to Final Settlement Agreement between the Town of
Fountain Hills and MCO Properties L.P. d/b/a/ MCO Properties Limited Partnership (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,
October 6, 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
1595827.1
EXHIBIT A
TO
RESOLUTION NO. 2011-40
[First Amendment to Final Settlement Agreement]
See following pages.
1595651.1
WHEN RECORDED, RETURN TO:
ATTENTION: TOWN CLERK
TOWN OF FOUNTAIN HILLS
16705 E. Avenue of the Fountains
Fountain Hills, Arizona 85268
FIRST AMENDMENT
TO
FINAL SETTLEMENT AGREEMENT
(Adero Canyon; Eagles Nest)
THIS FIRST AMENDMENT TO FINAL SETTLEMENT AGREEMENT (this “First
Amendment”) is made as of October 6, 2011 (the “Effective Date”), by and between the Town of
Fountain Hills, an Arizona municipal corporation (the “Town”) and MCO Properties L.P. d/b/a
MCO Properties Limited Partnership, a Delaware limited partnership doing business in the State of
Arizona (“MCO”). The Town and MCO are referred to herein individually as a “Party” and
collectively as the “Parties.”
RECITALS
A. The Town and MCO are Parties to that certain Final Settlement Agreement dated
December 4, 2001 (the “Original Agreement”). The Original Agreement was amended by that Final
Settlement Agreement Addendum dated April 3, 2003, to restate Paragraph 7.1 thereof relating to
timing of construction of certain infrastructure improvements in Adero Canyon, f/k/a/ Eagle Ridge
North (the “Addendum”). The Original Agreement and the Addendum are hereinafter referred to
together as the “Agreement.”
B. The Agreement governs the development of the property legally described and
depicted on Exhibit 1 attached hereto and incorporated herein by this reference (the “Property”).
C. The Town and MCO desire to amend certain portions of the Agreement relating to the
length of the Initial Vesting period, subject to the terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the promises and covenants
set forth below, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the Parties, the Town and MCO hereby agree to amend the Agreement
as follows:
1. Initial Vesting Period. Paragraph 6.1.1 of the Agreement is hereby deleted and
replaced by the following:
1595651.1
2
6.1.1 The Zoning with respect to the Property is “Vested” (as defined below) from the
Effective Date and shall continue for the entire Property for not less than twenty (20) years
from the Effective Date (the “Initial Vesting Period”).
2. Effect of Amendment. Except as otherwise contained herein, the remaining terms
and provisions of the Agreement shall remain in full force and effect and are otherwise hereby
ratified and confirmed. All capitalized terms used in this First Amendment shall have the meanings
ascribed to them in the Agreement unless otherwise indicated herein. In the event of any conflict
between the terms and conditions of this First Amendment and the terms and conditions of the
Agreement, the terms and conditions of this First Amendment shall control, unless a contrary
interpretation is required by a particular situation or circumstance.
3. Non-Default. By executing this First Amendment, MCO affirmatively asserts that the
Town is not currently in default, nor has been in default at any time prior to this First Amendment,
under any of the terms or conditions of the Agreement.
4. Counterparts. This First Amendment may be executed in any number of counterparts,
all of which together shall be deemed to constitute one instrument, and each of which shall be
deemed an original. In addition, the Parties acknowledge and agree that facsimile or scanned and
electronically transmitted signatures shall be deemed valid and binding, and thereafter, upon request
of either Party, each Party agrees to deliver original signed copies of this Amendment to the other
Party.
5. Waiver of Claims Pursuant to ARIZ. REV. STAT. § 12-1134 et seq. MCO agrees and
understands that the Town is entering into this First Amendment in good faith and with the
understanding that, if it acts consistently with the terms and conditions herein, it will not be subject
to a claim for diminished value of the Property from MCO or other parties having an interest in the
Property. MCO agrees and consents to all the conditions imposed by the First Amendment,
including all stipulations adopted by the Town Council, and by signing this First Amendment hereby
waives any and all claims, suits, damages, compensation and causes of action MCO may have now
or in the future under the provisions of ARIZ. REV. STAT. §§ 12-1134 through and including 12-1136,
as amended (but specifically excluding any provisions included therein relating to eminent domain)
and resulting solely from the development of the Property consistent with this First Amendment, the
Addendum and the Original Agreement (including all stipulations adopted by the Town Council).
MCO acknowledges and agrees that the conditions imposed by this First Amendment (including all
stipulations adopted by the Town Council) or a denial of the First Amendment would not result in a
reduction of the fair market value of the Property as defined in ARIZ. REV. STAT. § 12-1136. MCO
acknowledges that this First Amendment may be adopted with stipulations imposed by the Town
Council, in its sole discretion, prior to approval of the First Amendment. MCO agrees and
understands that its waiver of claims as set forth herein shall be deemed to extend to cover any
changes to the First Amendment and all stipulations thereto as approved by the Town Council
unless, not later than 48 hours following such Town Council approvals, MCO notifies the Town, in
writing, of its disagreement with such stipulation(s). In the event that MCO timely notifies the
Town of such disagreement, MCO 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 First Amendment;
provided, however, that if MCO does not submit a separate waiver of such claims, in a form
1595651.1
3
acceptable to the Town, prior to close of business on the fifth calendar day following approval of the
First Amendment, then the Town may, after proper notice and hearing, rescind the resolution
adopting the First Amendment, 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 First
Amendment. The foregoing waiver of claims shall not be effective and shall be of no further force
and effect with respect to the First Amendment in the event the Town Council disapproves the First
Amendment.
6. Conflict of Interest. This First Amendment may be cancelled by the Town pursuant
to ARIZ. REV. STAT. § 38-511.
[SIGNATURES ON FOLLOWING PAGES]
1595651.1
4
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the day
and year first written above.
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
By:
Jay T. Schlum, Mayor
ATTEST:
Bevelyn J. Bender, Town Clerk
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 2011, by
Jay T. Schlum, the Mayor 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)
1595651.1
5
“MCO”
MCO PROPERTIES L.P.
d/b/a MCO Properties Limited Partnership
a Delaware limited partnership
By:
Name:
Title:
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
This instrument was acknowledged before me on , 2011, by
________________________, the ________________________ of MCO PROPERTIES L.P. d/b/a
MCO Properties Limited Partnership, a Delaware limited partnership, on behalf of the partnership.
Notary Public in and for the State of
Arizona
(affix notary seal here)
1595651.1
EXHIBIT 1
TO
FIRST AMENDMENT TO
FINAL SETTLEMENT AGREEMENT
[Legal Description and Map of the Property]
Please see following pages.
Redacted
Redacted