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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 Z:\Council Packets\2011\R10-6-11\111006A.docx Last printed 10/4/2011 7:23 AM Page 2 of 4  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. Z:\Council Packets\2011\R10-6-11\111006A.docx Last printed 10/4/2011 7:23 AM Page 3 of 4 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. Z:\Council Packets\2011\R10-6-11\111006A.docx Last printed 10/4/2011 7:23 AM Page 4 of 4 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 Z:\Council Packets\2011\R10-6-11\111006A.docx Last printed 10/4/2011 7:23 AM Page 2 of 4  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. Z:\Council Packets\2011\R10-6-11\111006A.docx Last printed 10/4/2011 7:23 AM Page 3 of 4 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. Z:\Council Packets\2011\R10-6-11\111006A.docx Last printed 10/4/2011 7:23 AM Page 4 of 4 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