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HomeMy WebLinkAbout100109PZ:\Council Packets\2009\R10-1-09\091001A.docx Last printed 9/24/2009 3:07 PM Page 1 of 3 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, OCTOBER 1, 2009 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ 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 Vice Mayor Mike Archambault Councilmember Ginny Dickey Councilmember Dennis Brown Councilmember Cassie Hansen Councilmember Dennis Contino Councilmember Henry Leger Z:\Council Packets\2009\R10-1-09\091001A.docx Last printed 9/24/2009 3:07 PM Page 2 of 3  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Schlum  INVOCATION – Leanne Gratz, Coordinator of Pastoral Care, Church Of The Ascension  ROLL CALL – Mayor Schlum  MAYOR’S REPORT - (i) Rotation of the Vice Mayor position to Councilmember Cassie Hansen. 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 proclamations: a. Declaring October 5 – 9, “Customer Service Week” b. Declaring October 2009, “Domestic Violence Awareness Month” c. Declaring October 2009, “McDowell Mountain Month”  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS (i) Presentation by local artist, Judi Yates, of a plan for a proposed Downtown Art Fair and Farmers Market one day a week. (ii) Presentation of the award received in Belfast, Ireland by the Chair of the Fountain Hills Sister Cities, Sharon Morgan. 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 1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from September 8 and 17, 2009. 2. CONSIDERATION of approving a TEMPORARY EXTENSION OF PREMISE APPLICATION submitted by David Arthur Link (Grapeables Fine Wines) located at 12645 N. Saguaro Boulevard, Fountain Hills, AZ, scheduled for October 17, 2009. 3. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by William Lee Klein (American Legion Post 58, Auxiliary) for the purpose of a fundraising event, located at 16837 E. Parkview Avenue, Fountain Hills, AZ, scheduled to be held on October 17, 2009 from 9:00 a.m. to 10:00 p.m. Z:\Council Packets\2009\R10-1-09\091001A.docx Last printed 9/24/2009 3:07 PM Page 3 of 3 4. CONSIDERATION of approving an AMENDMENT to the agreement with Swaback Partners pllc for the Master Planning and Strategic Framework Services for Downtown Fountain Hills Contract in the amount of $5,401.75 to cover the costs of reimbursables. REGULAR AGENDA 5. CONSIDERATION of appointing three citizens to serve a two year term, October 1, 2009, through September 30, 2011, and appointing one citizen to serve a one year term, October 1, 2009, through September 30, 2010, on the Planning and Zoning Commission. 6. CONSIDERATION of appointing one citizen to serve on the Public Safety Advisory Commission from October 1, 2009, through October 31, 2011. 7. CONSIDERATION of RESOLUTION 2009-36, accepting the dedication of a public utility and access easement. 8. CONSIDERATION of RESOLUTION 2009-39, granting an access easement to Brian Schader. 9. CONSIDERATION of ORDINANCE 09-09, amending the Fountain Hills Town Code, Chapter 7, Buildings and Building Regulations, Article 7-10, Development Fees, relating to adjustments to development fees for the Town of Fountain Hills. 10. COUNCIL DISCUSSION/DIRECTION to the Town Manager. 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. 11. SUMMARY of COUNCIL REQUESTS and REPORT ON RECENT ACTIVITIES by the Town Manager. 12. ADJOURNMENT. DATED this 24th day of September, 2009 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. Z:\Council Packets\2009\R10-1-09\091001A.docx Last printed 9/24/2009 3:07 PM Page 1 of 3 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, OCTOBER 1, 2009 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ 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 Vice Mayor Mike Archambault Councilmember Ginny Dickey Councilmember Dennis Brown Councilmember Cassie Hansen Councilmember Dennis Contino Councilmember Henry Leger Z:\Council Packets\2009\R10-1-09\091001A.docx Last printed 9/24/2009 3:07 PM Page 2 of 3  CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Schlum  INVOCATION – Leanne Gratz, Coordinator of Pastoral Care, Church Of The Ascension  ROLL CALL – Mayor Schlum  MAYOR’S REPORT - (i) Rotation of the Vice Mayor position to Councilmember Cassie Hansen. 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 proclamations: a. Declaring October 5 – 9, “Customer Service Week” b. Declaring October 2009, “Domestic Violence Awareness Month” c. Declaring October 2009, “McDowell Mountain Month”  SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS (i) Presentation by local artist, Judi Yates, of a plan for a proposed Downtown Art Fair and Farmers Market one day a week. (ii) Presentation of the award received in Belfast, Ireland by the Chair of the Fountain Hills Sister Cities, Sharon Morgan. 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 1. CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from September 8 and 17, 2009. 2. CONSIDERATION of approving a TEMPORARY EXTENSION OF PREMISE APPLICATION submitted by David Arthur Link (Grapeables Fine Wines) located at 12645 N. Saguaro Boulevard, Fountain Hills, AZ, scheduled for October 17, 2009. 3. CONSIDERATION of a SPECIAL EVENT LIQUOR LICENSE APPLICATION submitted by William Lee Klein (American Legion Post 58, Auxiliary) for the purpose of a fundraising event, located at 16837 E. Parkview Avenue, Fountain Hills, AZ, scheduled to be held on October 17, 2009 from 9:00 a.m. to 10:00 p.m. Z:\Council Packets\2009\R10-1-09\091001A.docx Last printed 9/24/2009 3:07 PM Page 3 of 3 4. CONSIDERATION of approving an AMENDMENT to the agreement with Swaback Partners pllc for the Master Planning and Strategic Framework Services for Downtown Fountain Hills Contract in the amount of $5,401.75 to cover the costs of reimbursables. REGULAR AGENDA 5. CONSIDERATION of appointing three citizens to serve a two year term, October 1, 2009, through September 30, 2011, and appointing one citizen to serve a one year term, October 1, 2009, through September 30, 2010, on the Planning and Zoning Commission. 6. CONSIDERATION of appointing one citizen to serve on the Public Safety Advisory Commission from October 1, 2009, through October 31, 2011. 7. CONSIDERATION of RESOLUTION 2009-36, accepting the dedication of a public utility and access easement. 8. CONSIDERATION of RESOLUTION 2009-39, granting an access easement to Brian Schader. 9. CONSIDERATION of ORDINANCE 09-09, amending the Fountain Hills Town Code, Chapter 7, Buildings and Building Regulations, Article 7-10, Development Fees, relating to adjustments to development fees for the Town of Fountain Hills. 10. COUNCIL DISCUSSION/DIRECTION to the Town Manager. 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. 11. SUMMARY of COUNCIL REQUESTS and REPORT ON RECENT ACTIVITIES by the Town Manager. 12. ADJOURNMENT. DATED this 24th day of September, 2009 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. 1101945.1 RESOLUTION NO. 2009-36 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ACCEPTING THE DEDICATION OF A PUBLIC UTILITY AND ACCESS EASEMENT. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. An easement through, over, under and across a parcel of certain real property, generally located north of Paradox Drive, is hereby accepted by the Town of Fountain Hills from Brian Schader, in the form attached hereto as Exhibit A and incorporated herein by reference, for public utility and access purposes. SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to take all steps and to execute all documents 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 1, 2009. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney 1101945.1 EXHIBIT A TO RESOLUTION NO. 2009-36 [Public Utility Easement Agreement] See following pages. 1101946.1 When Recorded Mail To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 PUBLIC UTILITY AND ACCESS EASEMENT AGREEMENT GRANTOR: Brian Schader GRANTEE: Town of Fountain Hills, an Arizona municipal corporation (the “Town”) THIS PUBLIC UTILITY AND ACCESS EASEMENT AGREEMENT (this “Agreement”) is entered into , 2009, by and between the Town and Grantor for the purposes set forth below. RECITALS A. Grantor is the record owner of certain real property at the location described and depicted on Exhibit A, attached hereto and incorporated herein by this reference (the “Easement Area”). B. The Town and Grantor desire to enter into this Agreement for Grantor to grant to the Town a non-exclusive, continuous and perpetual easement together with the necessary right of access, ingress and egress over the Easement Area (the “Easement”), for purposes of installing, operating, inspecting, maintaining, repairing, replacing or removing aboveground and underground public utility facilities, as more particularly described herein. C. The Grantor specifically agrees and understands that the Town is not the sole provider of utilities within Fountain Hills and it is an express purpose of this Agreement to allow other utility providers to utilize the Easement Area for their respective facilities. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference and the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Grant of Easement. Grantor hereby grants and conveys the Easement to the Town for the purposes of installing, operating, inspecting, maintaining, repairing, replacing or removing aboveground and underground public utility facilities including, but not limited to water, sewer, electrical, telecommunications, gas, storm drainage and such other public utility facilities (the “Facilities”), whether such Facilities are installed, operated, inspected, maintained, 1101946.1 2 repaired, replaced, removed or otherwise owned or controlled by the Town or a utility provider other than the Town, as may be permitted by law within such Easement. 2. Maintenance of the Easement. Grantor shall not maintain the Easement Area in a manner that impairs the ability or capacity of the Town or other public utility providers to fully utilize the Easement. Grantor shall not construct, install or place, or permit to be constructed, installed or placed upon the Easement Area any fence, wall, structure or other improvement or obstruction which shall interfere with or impede the Town’s or other public utility providers’ access to the Easement Area or the Town’s right to maintain the Facilities in the Easement. The Town shall allow reasonable, typical landscaping within the Easement Area, including shrubs, groundcover and decomposed granite, except in a ten-foot clear zone around any sewer manholes or clean-out locations. 3. Indemnification. The Town shall, to the extent permitted by law, indemnify and hold Grantor harmless from any and all damages, costs, expenses, attorney fees, claims or liabilities arising from or relating to the use of the Easement Area by the Town, its successors in interest, assigns, agents, employees, visitors or invitees. 4. No Assignment. The Town shall have no right or authority to assign, in whole or in part, any of its rights or obligations under this Agreement, or any portion of this Agreement to any third party without the prior written consent of Grantor, which consent shall not be unreasonably delayed, conditioned or denied. Grantor specifically agrees and understands that it shall not be deemed an assignment under this Agreement for other utility providers to utilize the Easement for their respective purposes. 5. Liens and Encumbrances. The Town represents and warrants that it will maintain the Easement Area free and clear from any liens or encumbrances of any nature whatsoever in connection with Town’s construction of improvements on the Easement Area or the use by Town of the Easement Area. 6. Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the assigns and successors and tenants of the parties hereto. 7. Attorneys’ Fees. Either party may enforce this instrument by appropriate legal action and the prevailing party in such litigation may recover as part of its costs in such action reasonable attorneys’ fees and court costs. 8. Additional Easements. Nothing contained in this Agreement shall prohibit Grantor from conveying additional easements for access, utility or other purposes through, over, under, upon, in, across and along the Easement Area to the owners of properties which abut the Easement Area or to government or quasi-governmental agencies; provided, however, that no such additional rights or easement shall impair the Town’s use of the Easement herein granted. 9. Entire Agreement. This instrument contains the entire agreement between the parties relating to Town’s use of the Easement for Facility installation, operation and 1101946.1 3 maintenance. Any oral representations or modifications concerning this instrument shall be of no force or effect, excepting a subsequent modification in writing, signed by the parties. 10. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511 at which time, the Easement shall be extinguished. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. ACCEPTED BY: “Grantor” “Grantee” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation By: Brian Schader Jay T. Schlum, Mayor ATTEST: Bevelyn J. Bender, Town Clerk 1101946.1 4 (ACKNOWLEDGMENTS) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2009, by Brian Schader, in his individual capacity. Notary Public in and for the State of Arizona My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me , 2009, by Jay T. Schlum, 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 My Commission Expires: 1101946.1 EXHIBIT A TO PUBLIC UTILITY AND ACCESS EASEMENT AGREEMENT [Legal Description and Map of Easement Area] See following pages. 1102254.1 RESOLUTION NO. 2009-39 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, GRANTING AN ACCESS EASEMENT TO BRIAN SCHADER. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That an access easement through, over, under and across a parcel of certain real property, generally located north of Paradox Drive, is hereby granted to Brian Schader, in the form attached hereto as Exhibit A and incorporated herein by reference. SECTION 2. That the Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to take all steps and to execute all documents 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 1, 2009. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney 1102254.1 EXHIBIT A TO RESOLUTION NO. 2009-39 [Access Easement Agreement] See following pages. 1101911.2 When Recorded Mail To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 ACCESS EASEMENT AGREEMENT GRANTOR: The Town of Fountain Hills, an Arizona municipal corporation GRANTEE: Brian Schader THIS EASEMENT IS EXEMPT FROM RECORDING FEE AND AFFIDAVIT OF VALUE PURSUANT TO A.R.S. § 11-1134(A)(2). THIS ACCESS EASEMENT AGREEMENT (this “Agreement”) is entered into , 2009, by and between the Grantor and Grantee for the purposes set forth below. RECITALS A. The Grantor and Grantee desire to enter into this Agreement for Grantor to grant to the Grantee a non-exclusive, continuous and perpetual easement (the “Easement”) over certain real property, as more particularly described and depicted in Exhibit A, attached hereto and incorporated herein by reference (the “Easement Area”), for full and free pedestrian and vehicular ingress and egress over, across and upon the Easement Area, subject to the reversionary interests to the Grantor as set forth below. B. The Grantor is the record owner of the described property and has full authority to grant the Easement to the Grantee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference and the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Grant of Easement. Grantor hereby grants and conveys to Grantee, his successors and assigns, the continuous and perpetual easement through, over, upon, in, across and along the Easement Area for the benefit of the Grantee, his successors, assigns, heirs, executors or personal representatives, tenants, lessees, guests, invitees, or the guests or invitees of the tenants, for the purpose of full and free pedestrian and vehicular ingress and egress related to necessary access to buildings on Grantee’s property. 1101911.2 2 2. Reversion. In the event that the Grantee (i) records a document to formally abandon use of the Easement granted herein, (ii) abandons or removes buildings on the lot for which the Easement is used for access, or (iii) fails to make such improvements as required by subsections 3.2, 3.3 and 3.4 below, all of the Grantee’s rights hereunder shall cease and shall revert to Grantor. 3. Maintenance and Use of the Easement. Grantor shall not maintain the Easement Area in a manner that impairs the ability or capacity of the Grantee to fully utilize the Easement. 3.1 Grantor shall not construct, install or place, or permit to be constructed, installed or placed upon the property described herein any fence, wall, structure or other improvement which shall interfere with or impede the Grantee’s access to the Easement or the Grantee’s right to maintain the Easement Area; provided, however, that gating on the driveway access to the rear of the lot (subject to a Town Encroachment Permit for that work), will be allowed as long as a Knox lock (or Knox Box) is provided for Fire Department and utility provider access. 3.2 The Grantee shall, at his sole expense, not later than six months from the date of recording of this Agreement, grade or otherwise improve or cause to be improved the surface of the Easement Area described herein to facilitate the Grantee’s right of ingress and egress thereto and to ensure that the Easement Area meets the requirements of the Fountain Hills Town Code and State statutes with respect to dust-proof materials to be used for any driveway or parking area. 3.3 Grantee shall obtain an Easement Abandonment from the Grantor and public utilities (or remove the encroaching features) within the 20’ public utility easement/drainage easement at the rear of Plat 506B, Block 1, Lot 59. 3.4 Grantee shall scarify and hydro-seed, or otherwise re-vegetate (under an Encroachment Permit from the Grantor), adjoining disturbed areas on Grantor-owned property (outside of any finished driveway surfaces and defined access widths needed by the Grantor or public utilities), not later than six months from the date of recording of this Agreement. 4. No Assignment. Grantee shall have no right or authority to assign, in whole or in part, any of his rights or obligations under this Agreement, or any portion of this Agreement to any third party without the prior, written consent of Grantor, which consent may be given or withheld in Grantor’s sole discretion. 5. Liens and Encumbrances. The Grantee represents and warrants that it will maintain the Easement Area free and clear from any liens or encumbrances of any nature whatsoever in connection with Grantee’s construction of improvements on the Easement Area or the use by Grantee of the Easement Area. 6. Indemnification. Grantee shall, to the extent permitted by law, indemnify and hold Grantor harmless from any and all damages, costs, expenses, attorney fees, claims or liabilities arising from or relating to the use of the Easement Area by the Grantee, his successors in interest, assigns, agents, employees, visitors or invitees. Grantee shall not be entitled to the 1101911.2 3 indemnification provided herein for any damages, costs, expenses, attorneys’ fees, claims or liabilities to the extent such arise out of a negligent act, omission or willful misconduct of the Grantee, his officers, employees, agents, contractors, tenants, invitees, licensees or guests. 7. Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the assigns, successors and tenants of the parties hereto. 8. Attorney’s Fees. Either party may enforce this instrument by appropriate legal action and the prevailing party in such litigation may recover as part of its costs in such action reasonable attorneys fees and court costs. 9. Additional Easements. Nothing contained in this Agreement shall prohibit Grantor from conveying additional easements for access, utility or other purposes through, over, under, in, across and along the Easement Area to owners of properties which abut the Easement Area or to government or quasi-governmental agencies, provided, however, that no such additional rights or easements shall impair the use of the Easement herein granted. 10. Entire Agreement. This instrument contains the entire agreement between the parties relating to the use of the Easement Area for access purposes. Any oral representations or modifications concerning this instrument shall be of no force or effect, excepting a subsequent modification in writing, signed by the parties. 11. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. “Grantor” “Grantee” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation By: By: Jay T. Schlum, Mayor Brian Schader ATTEST: Bevelyn J. Bender, Town Clerk 1101911.2 4 (ACKNOWLEDGMENTS) STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2009, 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 My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2009, by Brian Schader, in his individual capacity. Notary Public in and for the State of Arizona My Commission Expires: 1101911.2 EXHIBIT A TO ACCESS EASEMENT AGREEMENT [Legal Description and Map of Easement Area] Pathways to Lasting Solutions Survey of Non-Utility Development Fees –Commercial 25,000 Square Feet Pathways to Lasting Solutions Survey of Non-Utility Development Fees –Commercial 100,000 Square Feet Pathways to Lasting Solutions Survey of Non-Utility Development Fees –Industrial 100,000 Square Feet 1064872.3 ORDINANCE NO. 09-09 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE FOUNTAIN HILLS TOWN CODE, CHAPTER 7, BUILDINGS AND BUILDING REGULATIONS, ARTICLE 7-10, DEVELOPMENT FEES, RELATING TO ADJUSTMENTS TO DEVELOPMENT FEES FOR THE TOWN OF FOUNTAIN HILLS, ARIZONA. WHEREAS, the Town received from Red Oak Consulting two written reports dated April 2009, entitled “Infrastructure Improvement Plan” and “Development Fee Update” and (collectively the “2009 Development Fee Study”) containing the studies and analysis required by ARIZ. REV. STAT. § 9-463.05, as amended, relating to adjustments to the Town’s existing development fees, which 2009 Development Fee Study has been released to the public; and WHEREAS, notice of intention to assess modified development fees was given on April 28, 2009, as required by ARIZ. REV. STAT. § 9-463.05(C); and WHEREAS, the 2009 Development Fee Study recommended increases for all fee categories except for Law Enforcement and Open Space, which were recommended for decreases; and WHEREAS, a public hearing concerning the modified development fees was held on July 2, 2009, in accordance with ARIZ. REV. STAT. § 9-463.05(C); and WHEREAS, subsequent to the public hearing, the Arizona Legislature adopted House Bill 2008, Laws 2009, Chapter 7, Forty-Ninth Legislature, Third Special Session, Section 41 of which related to a moratorium on new or increased development fees (the “Moratorium”); and WHEREAS, to comply with the Moratorium, the Town Council desires to impose a delay in implementation of the fee increases until expiration or elimination of the Moratorium while at the same time immediately implementing (subject to statutory time frames) the decreases in fees recommended by the 2009 Development Fee Study. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The foregoing recitals are incorporated as if fully set forth herein. SECTION 2. The Fountain Hills Town Code, Chapter 7, Buildings and Building Regulations, Article 7-10, Development Fees, Section 7-10-8, Fees, is hereby deleted in its entirety and replaced with the following: Section 7-10-8 Fees A. All new residential (single family and multifamily) and non-residential development in the Town shall be subject to payment of the development fees in amounts as periodically adopted and adjusted by the Town Council pursuant to ARIZ. REV. STAT. § 9-463.05, as amended. 1064872.3 2 B. Pursuant to ARIZ. REV. STAT. § 9-463.05(F), as amended, the development fees adopted by the Town Council according to this section will automatically adjust for inflation using the Engineering News Record - 20 City Construction Cost Index (ENR-CCI) on the first day of each Fiscal Year following adoption. The Town shall provide public notice of such annual adjustments at least thirty (30) days in advance of their effective dates. C. The amounts of the development fees adopted or adjusted as set forth above shall be set forth in a fee schedule adopted by the Town Council either by resolution or as part of the Town’s annual budget. SECTION 3. The following modified development fees are hereby adopted: Fee Area Unit Fee General Government Residential (1) dwelling $1,549 Non-Residential (2) s.f. $0.966 Law Enforcement Residential (1) dwelling $112 Non-Residential (2) s.f. $0.070 Open Space Residential (1) dwelling $430 Parks & Recreation Residential (1) dwelling $2,289 Streets SF-Residential dwelling $5,614 MF-Residential dwelling $3,942 Commercial s.f. $8.207 Hotel s.f. $2.258 Industrial s.f. $1.952 Office s.f. $4.897 Fire & Emergency Residential (1) dwelling $207 Non-Residential (2) s.f. $0.129 Library & Museum Residential (1) dwelling $258 (1)Residential includes single and multi-family dwelling units. (2)Non-Residential includes commercial and industrial square footage 1064872.3 3 SECTION 4. The fees adopted pursuant to this Ordinance shall not become effective until 75 days after the adoption of this Ordinance, subject to the further limitations set forth in Section 5 below. SECTION 5. The fees for Law Enforcement and Open Space shall be collected in the amounts set forth in this Ordinance beginning upon the first day such fees are effective. The fees for General Government, Parks and Recreation, Streets, Fire and Emergency and Library and Museum shall be collected in the amounts existing prior to adoption of this Ordinance until the earlier to occur of (i) expiration or elimination of the Moratorium or (ii) July 1, 2011. SECTION 6. The fee schedule adopted by the Town Council as part of its 2009-2010 Fiscal Year budget is hereby amended to include the adjusted development fees for Law Enforcement and Open Space adopted pursuant to this Ordinance, subject to the delayed effective date set forth above. The Fee Schedule adopted by the Town Council as part of its 2010-2011 Fiscal Year budget shall include all of the adjusted development fees adopted by this Ordinance. SECTION 7. If any provision or any portion of any provision of this Ordinance is for any reason held to be unconstitutional or otherwise unenforceable by a court of competent jurisdiction, such provision or portion thereof shall be deemed separate, distinct and independent of the remaining provisions of this Ordinance and shall be severed therefrom without affecting the validity of the remaining portions of this Ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, October 1, 2009. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney