HomeMy WebLinkAboutAgenda Packet 6-7-07Z:\Council Packets\2007\R6-7-07\EMCFD - agenda & packet\Agenda Special Session 6-7-07 Eagle Mt.doc Last printed 6/1/2007 9:54 AM
NOTICE OF SPECIAL SESSION OF THE
DISTRICT BOARD OF THE EAGLE MOUNTAIN
COMMUNITY FACILITIES DISTRICT
WHEN: THURSDAY, JUNE 7, 2007
TIME: 6:15 P.M.
WHERE: FOUNTAIN HILLS TOWN HALL
COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS
AGENDA
1.) Meeting CALLED TO ORDER and ROLL CALL.
2.) 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 Directors is subject to reasonable time,
place and manner restrictions. The Directors will not discuss or take legal action on matters raised during “Call
to the Public” unless the matters are property noticed for discussion and legal action. At the conclusion of the
call to the public, individual Directors may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask
that the matter be placed on a future agenda.
3.) CONSIDERATION of approving the meeting MINUTES of May 17, 2007.
4.) PUBLIC HEARING regarding the estimates of expenses, tax levies, and approving the
tentative budget as the FINAL BUDGET of the District for the Fiscal Year beginning July 1,
2007, and ending June 30, 2008.
5.) CONSIDERATION of RESOLUTION EMCFD 2007-02, approving the estimates of
expenses, tax levies, and the tentative budget as the FINAL BUDGET of the District for the
Fiscal Year beginning July 1, 2007, and ending June 30, 2008.
6.) ADJOURNMENT.
DATED this 1st day of June 2006.
______________________________________
Bevelyn J. Bender, District Clerk
The Eagle Mountain Community Facilities District in cooperation with the Town of Fountain Hills endeavors to make all
public meetings accessible to persons with disabilities. Please call 837-2003 (voice) or 1-800-367-8939 (TDD) 48 hours
prior to the meeting to request a reasonable accommodation to participate in this meeting. Supporting documentation
and staff reports furnished with this agenda are available for review in the clerk's office and on the Town’s website
www.fh.az.gov.
Pursuant to A.R.S. 38-431.02, notice is hereby given to the Directors of the District Board of the Eagle
Mountain Community Facilities District and to the general public that the District Board of the Eagle
Mountain Community Facilities District will hold a special session open to the public beginning at 6:15 p.m.
and immediately prior to the Cottonwood Maintenance District and Town Council meeting.
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NOTICE OF SPECIAL SESSION OF
THE DISTRICT BOARD OF THE
COTTONWOOD MAINTENANCE DISTRICT [CMD]
WHEN: THURSDAY, JUNE 7, 2007
TIME: IMMEDIATELY FOLLOWNG THE 6:15 P.M. EAGLE MOUNTAIN
COMMUNITY FACILITIES DISTRICT BOARD MEETING AND PRIOR TO
THE SPECIAL AND REGULAR MEETINGS OF THE TOWN OF FOUNTAIN
HILLS TOWN COUNCIL
WHERE: FOUNTAIN HILLS TOWN HALL
COUNCIL CHAMBERS
16705 E. AVENUE OF THE FOUNTAINS
Pursuant to A.R.S. §38-431.02, notice is hereby given to the Directors of the District Board of the Cottonwood
Maintenance District and to the general .public that the District Board of the Cottonwood Maintenance District
will hold a special session open to the public, which will begin immediately following the Eagle Mountain
Facilities District Board Meeting and prior to the June 7, 2007, Town Council meeting.
AGENDA
1. Meeting CALLED TO ORDER and ROLL CALL.
2. 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 Directors is subject to reasonable time, place and
manner restrictions. The Directors 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 Directors may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed
on a future agenda.
3. CONSIDERATION of approving the CMD meeting MINUTES of May 17, 2007.
4. PUBLIC HEARING regarding the estimates of expenses and assessments and approving the
tentative budget as the FINAL BUDGET of the District for the Fiscal year beginning July 1,
2007, and ending June 30, 2008.
5. CONSIDERATION of RESOLUTION CMD 2007-02, approving the estimates of expenses,
assessments, and the tentative budget as the FINAL BUDGET of the District for the Fiscal year
beginning July 1, 2007, and ending June 30, 2008.
6. ADJOURNMENT.
DATED this 1st day of June 2007: Bevelyn J. Bender, District Clerk
The Cottonwood Maintenance District, in cooperation with 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. Supporting documentation and staff
reports furnished with this agenda are available for review in the Clerk’s office and on the Town’s website
[www.fh.az.gov].
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NOTICE OF SPECIAL SESSION
OF THE
FOUNTAIN HILLS TOWN COUNCIL
Mayor Wally Nichols
Councilmember Mike Archambault Councilmember Henry Leger
Councilmember Ginny Dickey Vice Mayor Keith McMahan
Councilmember Ed Kehe Councilmember Jay Schlum
WHEN: THURSDAY, JUNE 7, 2007
TIME: 6:30 P.M. SPECIAL SESSION
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.
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CALL TO ORDER
ROLL CALL – Mayor Nichols
AGENDA ITEMS
1.) PUBLIC HEARING regarding the estimates of expenses and assessments and approving the tentative budget as the FINAL BUDGET for the 2007-2008 fiscal year budget for the Town of Fountain Hills.
2.) CONSIDERATION of RESOLUTION 2007-23, adopting the tentative budget as the FINAL BUDGET for the 2007-2008 fiscal year budget for the Town of Fountain Hills.
3.) ADJOURNMENT.
DATED this 1st day of June, 2007.
_________________________________
Bevelyn J. Bender, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 837-
2003 (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.
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NOTICE OF THE EXECUTIVE AND
REGULAR SESSION OF
THE FOUNTAIN HILLS TOWN COUNCIL
TIME: 5:00 P.M. to 6:10 P.M. - EXECUTIVE SESSION
(Executive Session will be held in 2nd floor Fountain Conference Room)
THE REGULAR SESSION OF THE TOWN COUNCIL WILL BEGIN
IMMEDIATELY FOLLOWING THE ADJOURNMENT OF THE
SPECIAL SESSION SCHEDULED TO BEGIN AT 6:30 P.M.
WHEN: THURSDAY, JUNE 7, 2007
WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS
16705 EAST 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 Wally Nichols
Councilmember Mike Archambault Councilmember Henry Leger
Councilmember Ginny Dickey Vice Mayor Keith McMahan
Councilmember Ed Kehe Councilmember Jay Schlum
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Page 1 of 4
CALL TO ORDER –Mayor Nichols
1.) ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: Pursuant to §38-
431.03(A)(4), for discussion or consultation with the attorneys of the public body in order to
consider its position and instruct its attorneys regarding the public body’s position regarding
contracts that are the subject of negotiations, in pending or contemplated litigation or in
settlement discussions conducted in order to avoid or resolve litigation. (Specifically, (a) a
possible license agreement with MCO, and (b) the FireRock tax litigation.)
2.) RETURN TO REGULAR SESSION
CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Nichols
INVOCATION –Pastor David Iverson, Fountain Hills Christian Center
ROLL CALL – Mayor Nichols
MAYOR’S REPORT
(i) None.
SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
(i) None.
CALL TO THE PUBLIC
Pursuant to A.R.S. §38-431-01(G), public comment is permitted (not required) on matters not listed on the agenda. Any such comment (i) must be within the jurisdiction of the Council and (ii) is subject to reasonable time, place, and manner restrictions. The Council will not discuss or take legal action on matters raised during “Call to the Public” unless the matters are properly noticed for discussion and legal action. At the conclusion of the call to the public, individual Councilmembers may (i) respond to criticism, (ii) ask staff to review a matter or (iii) ask that the matter be placed on a future Council agenda.
CONSENT AGENDA
1.) CONSIDERATION of approving the TOWN COUNCIL MEETING MINUTES from May
17, 2007.
2.) CONSIDERATION of approving a LIQUOR LICENSE APPLICATION for Timothy
Kersey [Fountain View Village] for a Class 12 – Restaurant license, located at 16455 East
Avenue of the Fountains, Fountain Hills.
3.) CONSIDERATION of approving a CONSTRUCTION MANAGER AT RISK
AGREEMENT with Valley Rain Construction Corporation in the amount of $29,404.87 for
pre-construction phase services related to construction of Fountain Park – Phase 4 & 5
improvements.
4.) CONSIDERATION of approving a CONTRACT with Infinity Electric in the amount of $110,500 for
the Desert Vista Neighborhood Park – Dog Park Lighting Project.
5.) CONSIDERATION of approving RESOLUTION 2007-24, abandoning whatever right, title, or
interest the Town has in a portion of the certain public utility easement located at the southerly
property line of Plat 603B, Block 4, Lot 2 (15639 E. Cholla Drive) as recorded in Book 161 of Maps,
Page 41 Records of Maricopa County, Arizona. EA07-05 (Wamboldt).
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6.) CONSIDERATION of approving RESOLUTION 2007-25, abandoning whatever right, title, or
interest the Town has in the certain public utility and drainage easement located at the northwesterly
property line of Plat 506B, Block 1, Lot 18 (14970 E. Aspen Drive) as recorded in Book 159 of Maps,
Page 3 Records of Maricopa County, Arizona. EA07-08 (Terrill).
7.) CONSIDERATION of approving RESOLUTION 2007-29, abandoning whatever right, title, or
interest the Town has in the certain public utility and drainage easements located at the southwesterly
property line of Plat 107, Block 14, Lot 06 (14822 N. Deerskin Drive) as recorded in Book 141 of
Maps, Page 18 Records of Maricopa County, Arizona. EA07-11 (Nemire).
8.) CONSIDERATION of approving RESOLUTION 2007-30, abandoning whatever right, title, or
interest the Town has in the certain public utility and drainage easements located at the southeasterly
property line of Plat 204, Block 9, Lot 13 (17027 E. Windchime Drive) as recorded in Book 142 of
Maps, Page 10 Records of Maricopa County, Arizona. EA07-09 (Puckett).
9.) CONSIDERATION of approving RESOLUTION 2007-18, an intergovernmental agreement with
Maricopa County Animal Care and Control for animal control services for FY2008-2010.
10.) CONSIDERATION of approving RESOLUTION 2007-27, an intergovernmental agreement with
Maricopa County Animal Care and Control for animal shelter services for FY2008-2010.
11.) CONSIDERATION of approving RESOLUTION 2007-26, amending and restating the
intergovernmental agreement between the Fountain Hills Unified School District No. 98 and the Town
for joint use of facilities.
12.) CONSIDERATION of consenting to formation of the GOLDFIELD PRESERVE DOMESTIC
WATER IMPROVEMENT DISTRICT pursuant to Arizona Revised Statutes Section 48-902(G) and
approving the Town Manager’s draft LETTER OF CONSENT to Goldfield Preserve Development,
L.L.C. dated June 7, 2007.
13.) CONSIDERATION of approving the REQUEST of the Fountain Hills Sanitation District to construct
an additional testing well in Fountain Park for the monitoring of effluent water recharge wells.
14.) CONSIDERATION of RESOLUTION 2007-33, authorizing the preliminary steps to be taken to
become a participating employer in the Elected Officials’ Retirement Plan on behalf of the Town’s
elected officials of the Town of Fountain Hills.
REGULAR AGENDA
15.) DISCUSSION WITH POSSIBLE DIRECTION TO STAFF REGARDING the temporary
access to the McDowell Mountain Preserve.
16.) PUBLIC HEARINGS to receive comment on: (i) RESOLUTION 2007-04, an amended
development agreement between the Town of Fountain Hills and JFM Limited Partnership for
the Fountain Hills Conference Resort & Spa, (Case #DA2006-01); (ii) RESOLUTION 2007-
21, a Minor General Plan Amendment, to the Official General Plan, Land Use Map for the
Town of Fountain Hills from multi-family to lodging, (Case #GPA2005-02); (iii)
ORDINANCE 07-06, to amend a portion of the Official Zoning Map for the Town of
Fountain Hills from R-4 to L-3 P.U.D. (Case #Z2005-04) and allow specific variation
between the proposal for the Fountain Hills Conference Resort & Spa and zoning
requirements, (Case #PD2005-03); and (iv) a SPECIAL USE PERMIT to allow retail,
restaurant, lounge, office, and other associated uses within the Fountain Hills Conference
Resort & Spa, (Case #SU2005-05).
17.) CONSIDERATION of RESOLUTION 2007-21, a proposed amendment to the Official
General Plan, Land Use Map for the Town of Fountain Hills. Case #GPA2005-02.
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18.) CONSIDERATION of RESOLUTION 2007-04, an amended development agreement
between the Town of Fountain Hills and JFM Limited Partnership for the Fountain Hills
Conference Resort & Spa. Case #DA2006-01.
19.) CONSIDERATION of ORDINANCE 07-06, to amend a portion of the Official Zoning Map
from R-4 to L-3 P.U.D to allow specific variation between the proposal for the Fountain Hills
Conference Resort & Spa and the zoning requirements.. Case #Z2005-03 and #PD2005-03.
20.) CONSIDERATION of a SPECIAL USE PERMIT to allow retail, restaurant, lounge, office
and other associated uses within the Fountain Hills Conference Resort & Spa. Case
#SU2005-05.
21.) CONSIDERATION of a CUT WAIVER to permit an area of 5,222 square feet to have up to
24 feet deep maximum visible cuts for the development of a single-family residence on lot
#87 in the Eagles Nest subdivision. Case #CFW2007-02.
22.) CONSIDERATION of RESOLUTION 2007-19, approving the Agreement for Law
Enforcement Services between the Town of Fountain Hills and Maricopa County for the
period July 1, 2007, through June 30, 2010.
23.) SUMMARY of COUNCIL REQUESTS by Town Manager.
24.) 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
25.) ADJOURNMENT.
DATED this 1st day of June, 2007.
Bevelyn J. Bender, Town Clerk
The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 837-2003
(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.
Page 1 of 2
TOWN OF FOUNTAIN HILLS
TOWN COUNCIL
AGENDA ACTION FORM
Meeting Date: June 7, 2007
Meeting Type: Regular
Agenda Type: Consent
Submitting Department: Administration
Staff Contact Information: Bevelyn J Bender, 480-816-5115, bbender@fh.az.gov
Strategic Priority: Not applicable
Council Goal: Not applicable
REQUEST TO COUNCIL: CONSIDERATION of approving the Town Council meeting MINUTES from May 17, 2007.
Applicant: N/A
Applicant Contact Information: N/A
Property Location: N/A
Related Ordinance, Policy or Guiding Principle: A.R.S. §38-431.01
Staff Summary (background): The intent of approving previous meeting minutes is to ensure an accurate account
of the discussion and action that took place at that meeting for archival purposes. Minutes are placed on the
Town’s website in compliance with state law within two days of Council approval.
Risk Analysis (options or alternatives with implications): N/A
Fiscal Impact (initial and ongoing costs; budget status): N/A
Recommendation(s) by Board(s) or Commission(s): N/A
Staff Recommendation(s): Approve
SUGGESTED MOTION: Move to approve the consent agenda.
Attachment(s): None
Submitted by:
__________________________________________
Approved:
_________________________________________
Town Manager Date
Bevelyn J. Bender/Town Clerk 5/25/07
Approved by:
___________________________________________
Department Director Date
Page 1 of 2
TOWN OF FOUNTAIN HILLS
TOWN COUNCIL
AGENDA ACTION FORM
Meeting Date: June 7, 2007
Meeting Type: Regular
Agenda Type: Consent
Submitting Department: Administration
Staff Contact Information: Tim Pickering, Town Manager, 480-816-5107, tpickering@fh.az.gov
Strategic Priority: Not applicable
Council Goal: Not applicable
REQUEST TO COUNCIL: CONSIDERATION of consenting to formation of the Goldfield Preserve Domestic Water
Improvement District pursuant to Arizona Revised Statutes Section 48-902(G) and approving the Town Manager’s draft
letter of consent to Goldfield Preserve Development, L.L.C. dated June 7, 2007.
Applicant: N/A
Applicant Contact Information: N/A
Property Location: N/A
Related Ordinance, Policy or Guiding Principle: N/A
Staff Summary (background): Goldfield Preserve Development, L.L.C. is requesting Maricopa County to approve the
formation of the Goldfield Preserve Domestic Water Improvement District (“District”). The District will consist of the
properties described in the attached Exhibit A and depicted in the maps attached as Exhibits B and C.
Certain of the parcels of land to be included in the District are not contiguous to each other. At least a portion of the
proposed District is within 6 miles of the municipal boundary of the Town of Fountain Hills (“Town”). Under these
circumstances, Goldfield Preserve Development, L.L.C. has requested the consent of the governing body of the Town
pursuant to Arizona Revised Statutes Section 48-902(G).
The Town does not provide water or wastewater services. Water is provided inside the Town by the Chaparral City Water
Company, a public service corporation. Wastewater service is provided inside the Town by the Fountain Hills Sanitary
District. The Town is separated from the proposed District by the Fort McDowell Indian Reservation, over which the Town
has no jurisdiction. It does not appear that this situation was intended to be subject to Section 48-902(G) because there is
no way possible for the DWID to interfere with potential water or wastewater services by the Town. However, the letter of
the statute nevertheless appears to require the Town’s consent.
Risk Analysis (options or alternatives with implications): N/A
Fiscal Impact (initial and ongoing costs; budget status): N/A
Recommendation(s) by Board(s) or Commission(s): N/A
Staff Recommendation(s): Approve.
SUGGESTED MOTION: Move to approve the formation of the Goldfield Preserve Domestic Water Improvement District
pursuant to Arizona Revised Statutes Section 48-902(G) and approve the Town Manager’s draft letter of consent to
Goldfield Preserve Development, L.L.C. dated June 7, 2007.
Attachment(s): Town Manager’s draft letter of consent to Goldfield Preserve Development, L.L.C. dated June 7, 2007
with attached Exhibits A, B and C.
Submitted by:
___________________________________________
Name/Title Date
Approved:
_________________________________________
Town Manager Date
Approved by:
__________________________________________
Department Director Date
738742.1
RESOLUTION NO. 2007-33
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AUTHORIZING THE PRELIMINARY STEPS
TO BE TAKEN TO BECOME A PARTICIPATING EMPLOYER IN THE
ELECTED OFFICIALS’ RETIREMENT PLAN ON BEHALF OF THE
ELECTED OFFICIALS OF THE TOWN OF FOUNTAIN HILLS.
WHEREAS, the Elected Officials’ Retirement Plan has been created by the State of
Arizona to provide retirement and other benefits for elected officials; and
WHEREAS, pursuant to the terms of said Elected Officials’ Retirement Plan, it is
optional for an incorporated city or town to include within said system its elected officials; and
WHEREAS, it is deemed in the best interest of the Town of Fountain Hills to include its’
elected officials under the Arizona Elected Officials’ Retirement Plan as prescribed by Title 38,
Chapter 5, Article 3, Arizona Revised Statutes as amended.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. That a preliminary actuarial survey be made to determine the estimated
cost of participation, the benefits to be derived, and such other information as may be deemed
appropriate, the cost of said survey to be paid by the Town of Fountain Hills.
SECTION 2. That the Town Clerk is hereby authorized to provide and turn over such
records as are necessary to make the actuarial survey.
SECTION 3. The Town Clerk shall file a certified copy of this Resolution with the Fund
Manager of the Elected Officials’ Retirement Plan.
SECTION 4. That the Mayor, the Town Manager, the Town Attorney and the Town
Clerk are hereby authorized and directed to take all steps necessary to carry out the purpose and
intent of this Resolution.
738742.1
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
Arizona, June 7, 2007.
FOR THE TOWN OF FOUNTAIN HILLS: ATTEST:
W. J. Nichols, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Timothy G. Pickering, Town Manager Andrew J. McGuire, Town Attorney
Page 1 of 7
TOWN OF FOUNTAIN HILLS
TOWN COUNCIL
AGENDA ACTION FORM
Meeting Date: June 7, 2007
Meeting Type: Regular
Agenda Type: Regular
Submitting Department: Planning and Zoning
Staff Contact Information: Bob Rodgers, Senior Planner, 480-816-5138, rrodgers@fh.az.gov
Strategic Priority: Not applicable
Council Goal: Economic Development
REQUEST TO COUNCIL:
RE: Fountain Hills Conference Resort & Spa
Case Numbers DA2006-01 GPA2005-02 Z2005-04 SU2005-05 PD2005-03
PUBLIC HEARINGS to receive comment on: (i) RESOLUTION 2007-04, an amended development agreement
between the Town of Fountain Hills and JFM Limited Partnership for the Fountain Hills Conference Resort & Spa,
(Case #DA2006-01); (ii) RESOLUTION 2007-21, a Minor General Plan Amendment, to the Official General Plan,
Land Use Map for the Town of Fountain Hills from multi-family to lodging, (Case #GPA2005-02); (iii) ORDINANCE
07-06, to amend a portion of the Official Zoning Map for the Town of Fountain Hills from R-4 to L-3 P.U.D. (Case
#Z2005-04) and allow specific variation between the proposal for the Fountain Hills Conference Resort & Spa and
zoning requirements, (Case #PD2005-03); and (iv) a SPECIAL USE PERMIT to allow retail, restaurant, lounge,
office, and other associated uses within the Fountain Hills Conference Resort & Spa, (Case #SU2005-05).
CONSIDERATION of RESOLUTION 2007-21, a proposed amendment to the Official General Plan, Land Use Map
for the Town of Fountain Hills. Case #GPA2005-02.
CONSIDERATION of RESOLUTION 2007-04, an amended development agreement between the Town of
Fountain Hills and JFM Limited Partnership for the Fountain Hills Conference Resort & Spa. Case #DA2006-01.
CONSIDERATION of ORDINANCE 07-06, to amend a portion of the Official Zoning Map from R-4 to L-3 P.U.D to
allow specific variation between the proposal for the Fountain Hills Conference Resort & Spa and the zoning
requirements. Case #Z2005-03 and #PD2005-03.
CONSIDERATION of a SPECIAL USE PERMIT to allow retail, restaurant, lounge, office and other associated uses
within the Fountain Hills Conference Resort & Spa. Case #SU2005-05.
Applicant & Contact Information:
OWNER:
JFM Limited Partnership, 3333 SE 21st Street, Topeka, KS, 66607
DEVELOPER:
Sierra Ventures, LLC, 7730 E. Greenway Road, Suite 101, Scottsdale, AZ, 85260
PROJECT COORDINATOR:
Geston Duffy Company, 7373 E. Doubletree Ranch Road, Suite 135, Scottsdale, AZ, 85258
ARCHITECT:
Group West Companies, PLLC, 1910 Fairview Ave E., Suite 500, Seattle, WA 98102
CIVIL ENGINEER:
Wood Patel & Associates, 1855 N. Stapely Drive, Mesa, AZ 85203
LEGAL:
Berry & Damore, LLC, 6750 E. Camelback Road, Suite 100, Scottsdale, AZ 85251
HOSPITALITY CONSULTANT:
Sierra Hospitality LLC, 7730 E. Greenway Road, Suite 101, Scottsdale, AZ, 85260
OPERATIONS:
Sentry Hospitality, Ltd, 136 E. 57th Street, New York, NY 10022
Property Location:
The subject property consists of two parcels labeled “Lot 1” and “Tract A” (See Attachments #2 and #3) located at the
northeast corner of Palisades Boulevard and Shea Boulevard, behind the town’s water feature.
Related Ordinance, Policy or Guiding Principle:
Existing March 3, 2003 Development Agreement
Fountain Hills Zoning Ordinance Chapter 2, Section 2.01 Amendments or Zone Changes
Fountain Hills Zoning Ordinance Chapter 2, Section 2.02 Special Use Permits
Fountain Hills Zoning Ordinance Chapter 2, Section 2.06 Planned Unit Developments
Fountain Hills Zoning Ordinance Chapter 5, Section 5.11 Land Disturbance Standards
Fountain Hills Zoning Ordinance Chapter 7- Parking and Loading Requirements
Fountain Hills Zoning Ordinance Chapter 16 – Lodging Zoning Districts
Fountain Hills Subdivision Ordinance Chapter 5 – Grading Standards
Fountain Hills General Plan Chapter 2 - Land Use Map (Exhibit 4)
Fountain Hills General Plan Chapter 7 – Plan Amendments Section
Staff Summary (background):
EXISTING CONDITIONS:
The subject property is currently vacant and consists of two parcels. Tract A is zoned OSR (Open Space Recreation) and
contains 1,600,836 square feet (36.55 Acres) and is the location of the existing Hillside Protection Easement. Lot 1
contains 1,003,666 square feet (23.04 Acres) and is the location where the construction will occur. Lot 1 is currently
divided into two zoning districts; L-3 PUD and R-4.
SURROUNDING LAND USES & ZONING:
North: Westridge Village – Single Family Homes – “R1-10 PUD” Zoning
South: Shea Boulevard - Firerock CC – Single Family Homes - “R1-18 PUD” Zoning
East: Westridge Village – Open Space – “OSR” and “R1-43” Zoning
West: The Summit At Crestview – Condominiums - “M1” Zoning
BACKGROUND:
The subject property has received previous approvals for development proposals.
The first approval was in 1998 and resulted in the property lot divisions, land-use designations, and the development area
of the property being zoned “L-3 PUD”.
The most recent past approval was for “Fountain Vista Properties, LLC’s” March 2003 proposal to construct a Hilton Hotel.
This approval had many of the same components seen in the current proposal such as a Minor General Plan Amendment,
a PUD, Cut & Fill Waivers, Special Use Permits and a Development Agreement. It also included a request to re-zone a
portion of the “L-3 PUD” area to “R-4”.
The current proposal follows this same methodology. The property zoning is proposed to be reverted back to the pre-2003
L-3 PUD designation and although the new development plan is very different from the previous proposals, the basic
application and agreement framework are the same.
SUMMARY:
The Fountain Hills Conference Resort and Spa is proposed to consist of a 233 room hotel, 36 townhouse condominiums,
a restaurant, bar, clothing shop, gift shop, conference facilities, swimming pool, wedding chapel, and other related resort
features. Hotel parking is provided as surface parking, and an underground garage. Townhouse parking is provided by
on-site garages.
The proposed development would re-zone the “R-4” portion to “L-3 PUD” and transfer a portion of Lot 1 into the Hillside
Protection Easement as well.
APPROVALS REQUIRED:
The proposal will require the following approvals:
A. Development Agreement (#DA2006-01) between the developers and the Town of Fountain Hills. The
agreement has already been approved and signed by the property owners.
(See issues #1, #3 and #5 below)
B. Minor General Plan Amendment (#GPA2005-02) to amend the General Plan Future Land Use map from multi-
family to lodging and to accommodate the re-zoning.
(See issue #7 below) (See Attachment #2)
C. Rezoning to “L-3 PUD” (#Z2005-04) to amend the Zoning Map from R-4 to L-3 PUD.
(See issue #7 below) (See exhibit #3) and (#PD2005-03) to allow for the variations between the proposal and the
zoning requirements. (See issues #2 & #4 below)
D. Special Use Permit (#SU2005-05) to permit numerous ancillary uses within the project.
(See issue #6 below)
E. Concept Plan (#CP2005-10) to allow the construction of the resort hotel and townhouses.
(See exhibit #6) (Not a part of this proposal at this time)
F. Condominium Plat to allow the sale of the townhouse units as well as the hotel units.
(Not yet applied for)
GENERAL DISCUSSION:
The Plan depicts 18 duplex buildings containing 36 Townhouse style condominium units along with a 233 room
conference resort hotel. Additionally, there is an event lawn, a pool house, and a sales office building. The buildings are
situated in such a manner so that they step down the east face of the large slope. The townhouse condominiums are at
the top and the hotel is situated below them further down the slope. The design is conducive to maintaining views over the
lower buildings. The estimated project cost is $70 Million.
The L-3 PUD zoning district allows a density of one room/unit per 2,904 square feet of lot area (15 units per acre). Lot 1,
which contains the proposed development, has an area of 1,003,666 sq ft and would allow a maximum density of 345
rooms under this zoning designation. The proposed 269 rooms/units are within this maximum allowance.
Access is provided via two entrances off Palisades Boulevard. The primary entrance is proposed to be the north entrance.
Accel/Decel lanes will be provided for both directions of travel on Palisades Boulevard. A deceleration lane will also be
provided to Westridge Village in lieu of providing one on Shea Boulevard.
Internal vehicular access is provided via a long winding dead-end road that terminates at the top of the hill. An additional
secondary/emergency access is provided to access the cul-de-sac from the south entrance in order to mitigate potential
emergency response delays. The secondary access would also improve internal traffic circulation and will function as a
secondary access if final area grading and engineering design will allow.
Pedestrian access is provided throughout the site with roadside sidewalks and stairways down the hillside connecting the
townhouses to the hotel and its facilities. A sidewalk is to be provided along Palisades Boulevard from Westridge Village
down to Shea Boulevard as well.
Townhouse parking is provided for by 2-car garages for each unit. Hotel parking is provided by surface parking along the
front of the hotel and a parking garage under the hotel. Additional parking spaces for the wedding chapel and sales office
are located near those buildings. (See issue #1 below)
The proposal will have the same approximate impact upon neighboring areas as the previously approved resort proposal.
Density is slightly lower as 304 rooms/units were previously approved.
The Development Agreement and PUD rezoning are intended to address any inconsistencies with the town’s ordinance
requirements. Once the major aspects of the proposal are determined, the Town Council should enter into the formal
agreement.
The resort is not proposed to be operated as a fractional ownership property. The townhouse/condominium units will be
sold. Owners of the townhouse units will have the option of including their units in the rental pool when they are not using
the units. The hotel rooms will be rented as normal thereby providing the benefit of annual room tax revenue.
The Concept Plan is not a part of the proposal currently being presented. It is anticipated that the Concept Plan
application will be presented once the entitlements are decided upon by the Town Council. A number of issues will be
addressed during the Concept Plan stage in order to provide the applicant with enough guidance and information to
proceed. This item will be presented to the Planning & Zoning Commission at a future meeting.
The Condominium Plat application has not yet been filed. This application will be made once the project is underway.
This item will be presented to the Planning & Zoning Commission for a recommendation and to Town Council for final
approval when the application is made.
The Westridge Village Homeowner’s Association has submitted a letter in which they support the re-zoning application.
(See Exhibit #11 below)
The attached Revised Development Agreement is the result of 16 months of negotiation between the Town and the
developer.
ISSUES:
1. Parking. The proposal provides 668 parking spaces. This number falls short of the number normally required by
the Fountain Hills Zoning Ordinance. Staff has calculated that a strict interpretation of the zoning ordinance will
require 879 parking spaces. The applicants propose a parking arrangement to allow them to provide a reduced
number of on-site spaces that will be shared by all the uses within the resort. This is also being proposed as a
part of the development agreement. The town commissioned the services of The CK Group, Inc to perform a
parking analysis in order to determine an appropriate number of parking spaces for a resort of this nature. The CK
Group’s analysis recommended that a minimum of 665 spaces be provided. The report and its findings have been
included in the development agreement. Staff recommends this request be considered favorably. (See exhibit #9
below)
2. Townhouse driveway separation is proposed to be 5’ rather than the required 20’. This is proposed to be a part of
the PUD. Daily traffic generated by 36 condominiums is considered as a negligible impact and the roadway speed
is expected to be 20 MPH and below. Staff recommends that this request be considered favorably.
3. The applicant proposes to add more land to the Hillside Protection Easement (HPE). This arrangement is
proposed as a part of the Development Agreement and will result in the applicant providing approximately
$640,000 to the town as compensation for 5.2 + acres (3.3 acres + of the previously (Hilton project entitlement)
approved 8.5 acres + is being returned) of land disturbance. Staff recommends this request be considered
favorably as it allows for more hillside protection than the previous approval. (See exhibit #7 below)
4. The applicants propose to increase the allowable lot coverage from 25% to 29%. This is proposed to be a part of
the PUD. The project is currently designed with 28.5% lot coverage. Staff recommends this request be considered
favorably as it allows for a better site design.
5. The applicants propose cuts for specific areas in excess of the ordinary standard of 10’ in depth. This request is
addressed in the development agreement. Staff recommends this request be considered favorably. The proposal
allows for better aesthetics and functionality in building design. The cuts are necessary for the roadway design
and to allow the building to be set into the hillside. The majority of the requested cuts apply to areas that will not
be visible when the project is complete. The amount of area contained within the cut request is smaller than the
previously approved Hilton project entitlement. Also, all fill waiver requests have been eliminated. (See exhibit #8
below)
6. Special Use Permits are required for many of the ancillary uses such as the restaurant, bar, gift shop, sales office,
etc. These permits have been applied for as one all-inclusive Special Use Permit. Staff recommends these
requests be considered favorably as the proposed uses are customarily found in and around resort hotels.
7. A Minor General Plan Amendment, and a Re-Zoning are requested in order to permit the resort to be developed
as one cohesive project rather than an assembly of associated parts. Staff recommends these two requests be
considered favorably and notes that the proposed changes would revert the re-zoned property back to its status
before the last development approval. (See exhibits #2 & #3 below)
8. The project is located at one of the primary entry points to the town. As such, a great deal of landscaping and
other aesthetic designs will be incorporated in the Concept Plan and Landscape Plan. The final design of these
plans are not a part of the current application but will be submitted for Planning & Zoning Commission review
soon after the entitlements addressed in this application have been acted upon by the Town Council.
Risk Analysis (options or alternatives with implications):
Approval of the proposal will result in the development of a resort hotel and conference center as outlined. Denial of the
proposal will result in either the property remaining vacant for the foreseeable future, a re-design of the current proposal,
or the construction of the previously approved proposal.
Fiscal Impact (initial and ongoing costs; budget status):
The currently vacant property contributes very little municipal revenue through property taxes. Successful completion of
the project will result in over $634,000 being provided as payment for the additional 5.2 acres of HPE being disturbed.
The town will realize income through building permit fees, plan review fees, and development fees that is estimated to be
approximately $790,000.
Assuming 233 rooms at $150 per night, year-round at 75% occupancy, room taxes through the hotel room rentals is
estimated to be approximately $285,000 + annually.
Public improvements to Palisades Boulevard, to be provided by the developer are as follows:
1. The Westridge Village Deceleration Lane ($42,000)
2. Three additional Deceleration Lanes, one Acceleration Lane and a Median Cut at the main entrance ($500,000+)
3. A future Traffic Signal when warrants are met ($450,000+)
4. A Sidewalk from Westridge Village to Shea Boulevard ($237,000 +)
5. Landscaping along Palisades Boulevard from the project site to Shea Boulevard
The estimated total value of the improvements, exclusive of the landscaping, is approximately $1,229,000.
(See Exhibit 10 below)
Recommendations:
The Planning & Zoning Commission held public hearings regarding the Fountain Hills Conference Resort & Spa on May
10, 2007.
The Commission unanimously voted to forward recommendations to approve the General Plan Amendment, the Re-
Zoning and the Special Use Permit.
The Commission voted 4-2 in favor of forwarding a recommendation to approve the PUD. Concerns cited by the two
dissenting commissioners were regarding increasing the site coverage to 29%. They felt the project should have been
designed within the 25% lot coverage restriction allowed by ordinance.
Staff Recommendation(s):
The development team has indicated that they intend to make a presentation after staff has completed its presentation.
It is important to note that the applicants will not be able to begin any site work or construction activities, and that no
building permits will be issued until after the Planning & Zoning Commission has reviewed and approved the Concept
Plan, Architectural Plans, and Landscaping Plans.
Staff recommends that the Town Council approve the Development Agreement (#DA2006-01), the Minor General Plan
Amendment (#GPA2005-02), the Re-zoning to “L-3 PUD” (#Z2005-04), the Special Use Permits (#SU2005-05), and the
P.U.D. (#PD2005-03).
SUGGESTED MOTIONS:
Move to approve RESOLUTION 2007-04, an AMENDED DEVELOPMENT AGREEMENT between the Town of Fountain
Hills and JFM Limited Partnership for the Fountain Hills Conference Resort & Spa as outlined in the staff report with
attached documents and as presented during the public hearing. Case #DA2006-01
Move to approve RESOLUTION 2007-21, a MINOR GENERAL PLAN AMENDMENT to the Official General Plan, Land
Use Map for the Town of Fountain Hills as outlined in the staff report with attached documents and as presented during
the public hearing. Case #GPA2005-02
Move to approve ORDINANCE 07-06, ZONING AMENDMENT to amend a portion of the Official Zoning Map from R-4 to
L-3 P.U.D. and to allow specific variation between the proposal for the Fountain Hills Conference Resort & Spa and the
zoning requirements as outlined in the staff report with attached documents and as presented during the public hearing.
Case #Z2005-04
Case #PD2005-03
Move to approve the SPECIAL USE PERMIT to allow retail, restaurant, lounge, office and other associated uses within
the Fountain Hills Conference Resort & Spa as outlined in the staff report with attached documents and as presented
during the public hearing. Case #SU2005-05
1
2
RESOLUTION NO. 2007-21
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING AN AMENDMENT TO THE
TOWN OF FOUNTAIN HILLS GENERAL PLAN 2002, RELATING TO
APPROXIMATELY 9.91 ACRES OF LAND LOCATED NEAR THE
NORTHEAST CORNER OF PALISADES BOULEVARD AND SHEA
BOULEVARD.
WHEREAS, on June 20, 2002, the Mayor and Council of the Town of Fountain Hills
(the “Town Council”) approved the Town of Fountain Hills General Plan 2002 (the “General
Plan”), which General Plan was subsequently ratified by the qualified electors of Fountain Hills
on September 11, 2002; and
WHEREAS, Chapter 7 of the General Plan, Plan Implementation, establishes the
authority and procedures for amending the General Plan; and
WHEREAS, on August 26, 2005, the developers of the Fountain Hills Conference
Resort and Spa filed an application, GPA2005-02, to amend the land use designation for
approximately 9.91 acres on the General Plan and the Land Use Map included as Exhibit 4 to the
General Plan, to facilitate the orderly, planned development of the 23-acre parcel of land located
on Palisades Boulevard (the “General Plan Amendment”); and
WHEREAS, the proposed General Plan Amendment provides for an appropriate mix of
residential, open space, commercial, resort and recreational land uses; and
WHEREAS, the proposed General Plan Amendment satisfactorily addresses the issues
of traffic circulation, development on slopes, major drainage corridors, expansive soils, adequacy
of public utilities, housing density, transition to existing development and the preservation of
open space; and
WHEREAS, notice of the public hearings on the proposed General Plan Amendment
before the Planning and Zoning Commission (the “Commission”) and the Town Council was
provided in the Fountain Hills Times on April 25, 2007; and
WHEREAS, public hearings were held by the Commission on May 10, 2007, and by the
Town Council on June 7, 2007.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. That the General Plan Amendment contained in file GPA2005-02,
including narrative text that clarifies and supports modifications in land use and changes to the
Land Use Map included as Exhibit 4 to the Fountain Hills General Plan 2002, altering
approximately 9.91 acres of the area shown on the Land Use Map from Multi-Family to
Lodging, as described on Exhibit A, attached hereto and incorporated herein by reference, is
hereby adopted.
735766.1
SECTION 2. If any provision of this Resolution is for any reason held by any court of
competent jurisdiction to be unenforceable, such provision or portion hereof shall be deemed
separate, distinct and independent of all other provision and such holding shall not affect the
validity of the remaining portions of this Resolution.
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
June 7, 2007.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
W. J. Nichols, Mayor Bevelyn J. Bender, Town Clerk
Timothy G. Pickering, Town Manager Andrew J. McGuire, Town Attorney
735766.1
2
EXHIBIT A
TO
RESOLUTION NO. 2007-21
[Legal Description]
See following pages.
735766.1
3
ORDINANCE NO. 07-06
AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, AMENDING THE OFFICIAL ZONING
DISTRICTS MAPS OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, BY
AMENDING THE ZONING DESIGNATION OF + 9.91 ACRES OF LAND
FROM “R-4” MULTI-FAMILY RESIDENTIAL ZONING DISTRICT TO “L-3
PUD” LODGING ZONING DISTRICT.
WHEREAS, the Town of Fountain Hills (the “Town”) adopted Ordinance No. 93-22, on
November 18, 1993, adopting the Zoning Ordinance for the Town of Fountain Hills (the “Zoning
Ordinance”); and
WHEREAS, Chapter 2, Procedures, Section 2.01, Amendments or Zone Changes, of the
Zoning Ordinance establishes the authority and procedures for amending the zoning district
boundaries; and
WHEREAS, in accordance with the Zoning Ordinance and pursuant to Ariz. Rev. Stat. §
9-462.04, public hearings were advertised in the April 25, 2007 edition of the Times of Fountain
Hills; and
WHEREAS, public hearings were held by the Fountain Hills Planning & Zoning
Commission on May 10, 2007, and by the Mayor and Council of the Town of Fountain Hills on
June 7, 2007.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF
THE TOWN OF FOUNTAIN HILLS as follows:
SECTION 1. That the “Official Zoning District Maps”, codified in Chapter 3,
Establishment of Zoning Districts and Boundaries Thereof, Section 3.02, Boundary Lines on the
Zoning District Maps, of the Zoning Ordinance, are hereby amended to change the Zoning
District designation of + 9.91 acres of land as described in Exhibit A, attached hereto and
incorporated herein by reference, from “R-4” Multi-Family Residential Zoning District to the
“L-3 PUD” Lodging Zoning District.
SECTION 2. If any section, subsection, sentence, clause, phrase or portion of this
Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of
this Ordinance.
[SIGNATURES ON FOLLOWING PAGE]
735623.1
PASSED AND ADOPTED BY the Mayor and Council of the Town of Fountain Hills,
Arizona, June 7, 2007.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
W. J. Nichols, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Timothy G. Pickering, Town Manager Andrew J. McGuire, Town Attorney
735623.1
2
EXHIBIT A
TO
ORDINANCE NO. 07-06
[Legal Description]
See following page.
735623.1
4
5
6
7
8
9
10
11
12
RESOLUTION NO. 2007-04
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, APPROVING A FIRST AMENDMENT TO
THE DEVELOPMENT AGREEMENT WITH FH RESORT DEVELOPERS,
L.L.C., REGARDING THE FOUNTAIN HILLS RESORT.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. That the First Amendment to the Development Agreement between the
Town of Fountain Hills and FH Resort Developers, L.L.C., dated June 7, 2007, is hereby
approved in the form attached hereto as Exhibit A and incorporated herein by this 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 necessary 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,
Arizona, June 7, 2007.
FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO:
W. J. Nichols, Mayor Bevelyn J. Bender, Town Clerk
REVIEWED BY: APPROVED AS TO FORM:
Timothy G. Pickering, Town Manager Andrew J. McGuire, Town Attorney
739063.1
EXHIBIT A
TO
RESOLUTION NO. 2007-04
[First Amendment]
See following pages.
739063.1
FIRST AMENDMENT
TO
DEVELOPMENT AGREEMENT
(Fountain Hills Resort)
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the “First
Amendment”) is entered into June 7, 2007, by and between the TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation (the “Town”) and FH Resort Developers, L.L.C., an Arizona
limited liability company (the “Owner”).
RECITALS
A. The Town and Fountain Vista Properties, LLC, an Arizona limited liability
company (“Fountain Vista”) are parties to that certain Development Agreement dated March 3,
2003 and recorded at Document Number 2003-0365140 in the Maricopa County Recorder's
Office (the “Original Development Agreement”).
B. The Original Development Agreement governs the development of the property
legally described on Exhibit 1 attached hereto and incorporated herein by this reference (the
“Property”).
C. The Owner has succeeded to the interest of Fountain Vista in and to the Property
as well as its interest in the Original Development Agreement.
D. The Original Development Agreement provided for development of a medium
density resort hotel and up to 71 Villas intended for multi-family residential use.
E. The Town and the Owner desire to amend the Original Development Agreement
to alter the development contemplated by the Original Development Agreement by (i) reducing
the amount of cut and fill necessary, (ii) reducing the area of land disturbance, (iii) eliminating
all R-4 zoning category uses from the Property, (iv) reducing the number of condominiums from
71 to 36, (v) increasing the per-square-foot price for excess land disturbance.
F. The Town Council of the Town has authorized execution of this First Amendment
by Resolution No. 2007-04.
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 is hereby acknowledged by the parties, the Town and Owner agree to
amend the Original Development Agreement as follows:
1. Site Development. Section 3 of the Original Development Agreement is hereby
deleted in its entirety and replaced with the following:
Should the Town Council, in the exercise of its legislative discretion,
approve the Zoning and the General Plan Amendment (as each are defined
696617.8
hereinafter), the Town agrees that Owner may develop the Property
consistent with the site plan prepared by Group West Companies, Inc.,
dated April 6, 2007, attached hereto as Exhibit H and incorporated herein
by this reference (the “Site Plan”), subject to any final zoning stipulations,
development standards and the requirements and specifications of final
construction and engineering plans to be approved by the Town, if and as
approved by Owner, which approval shall not be unreasonably withheld,
conditioned or delayed.
The Site Plan has been amended since the Original Development Agreement was approved by
the Town. The amended Site Plan is attached to this First Amendment and shall be substituted
for the original site plan attached to the Original Development Agreement as Exhibit H.
2. Zoning; Use. Section 4 of the Original Development Agreement is hereby
amended to provide that except for that portion of Property zoned “OSR” the remainder of the
Property is intended to be zoned “L-3 PUD” (the “Lodging Zoning Category”) to accommodate
the development of a resort hotel conference center and spa on the Property having
approximately 250 hotel rooms, an approximately 22,000 SF conference facility and 36
condominium units on the Property, together with ancillary uses including, without limitation,
meeting space, lobbies, spa, pool, fitness center and other related amenities (the “Fountain Hills
Conference Resort & Spa” or the “Resort”). The parties hereby agree that should the Lodging
Zoning Category be approved over the New Lodging Area (as defined below) by the Town
Council, the Lodging Zoning Category is the appropriate zoning classification for such use,
including the condominium units. The area of the Property intended to be changed from R-4 to
L-3 PUD is described on Exhibit 2, attached hereto and incorporated herein by this reference (the
“New Lodging Area”). Prior to adoption of the Lodging Zoning Category over the New Lodging
Area (such action is referred to herein as the “Lodging Rezoning”) as set forth above, the Town
Council shall consider a minor amendment (the “General Plan Amendment”) to the Town’s
General Plan 2002 (the “General Plan”) and if, in the exercise of its legislative discretion, the
Town Council approves the General Plan Amendment, the Lodging Zoning Category shall be
consistent with the General Plan. The Resort, including the condominium units shall be
identified and constructed in material accordance with the Site Plan.
3. Limitations on the R-4 Multi-Family Residential. Concomitantly, because the
Property would, after adoption of the Lodging Rezoning, only include L-3 PUD uses and would
no longer include a component of R-4 multi-family zoning and because development of the
Resort contemplates no such uses, Section 5 of the Original Development Agreement is hereby
deleted in its entirety from the Original Development Agreement and shall be of no further force
and effect.
4. Cut and Fill Standards. Section 6 of the Original Development Agreement is
hereby amended to provide that the area of cut and fill needed to develop the Resort on the
Property shall be reduced from the amount of cut and fill authorized by the Original
Development Agreement. The development of the Resort according to the Site Plan would
reduce the area of cut and fill by approximately 12,271 SF (or 6.98%) from the amount of cut
and fill authorized by the Original Development Agreement.
696617.8
2
5. Land Disturbance Provision. In order to provide for the reasonable use and
development of the Resort in accordance with the Site Plan and the policies of the Town, Section
7 of the Original Development Agreement is hereby amended to reduce the hillside disturbance
by approximately 4.72 acres, as shown on the Site Plan.
6. Payment to the Town. Section 8 of the Original Development Agreement
required the Owner to pay to the Town certain sums related to land disturbance on the Property.
Since the time the Original Development Agreement was signed, the cost for such land
disturbance has increased from $1.00/SF to $2.83/SF. Therefore, Section 8 is hereby amended to
provide that in consideration of the land disturbances on the Property, the Owner shall pay to the
Town $634,470.71, payable on the same terms and, in the manner as provided in the Original
Development Agreement.
7. Agreement Adoption and Effectiveness. The Section 9 of the Original
Development Agreement is hereby deleted in its entirety and replaced with the following:
Rescission of Annexation Ordinance and Rezoning. If the Lodging
Rezoning, General Plan Amendment and the Special Uses (as defined
below) (collectively, the Lodging Rezoning, General Plan Amendment
and the Special Uses are referred to herein as “Approvals”) are the not
approved at the same Council meeting, the Council shall (by Motion for
Reconsideration or other appropriate means) repeal the Lodging Rezoning
Ordinance prior to expiration of the 20-day period following the Council’s
adoption of the Approvals and before the Lodging Rezoning is final and
effective under applicable law, even if the Council must hold a special
meeting to do so. The Lodging Rezoning ordinance shall contain
provisions (A) requiring repeal of the Lodging Rezoning ordinance by the
Town if (i) the Town does not approve the General Plan Amendment (if
not previously approved and effective) and the Lodging Rezoning, subject
only to those conditions on development of the Property acceptable to the
Owner, which acceptance shall not be unreasonably withheld, conditioned
or delayed, at the same Council meeting as adoption of this First
Amendment, (ii) any person, other than a Party, files a verified petition
with the Town challenging the General Plan Amendment or the Lodging
Rezoning or (iii) any person, other than a Party, files a verified petition
with the Town challenging the validity of this First Amendment and (B)
causing the automatic repeal of the Lodging Rezoning ordinance in the
event that the Council fails to repeal the Lodging Rezoning ordinance as
set forth above. The Town makes no representation as to the
enforceability of the automatic rescission and termination provision set
forth in Clauses (A) and (B) of this Section, but agrees to use its best
efforts to accomplish the intent of this Section 9. The Parties agree that
nothing in this First Amendment shall affect the Town’s ability to approve
or deny the General Plan Amendment, Special Uses or the Lodging
Rezoning or to impose conditions on development of the Property;
696617.8
3
provided, however, that such conditions on development of the Property
are reasonably acceptable to Owner.
8. L-3 Zoning District - Ten Year Lock. Section 10 of the Original Development
Agreement is hereby amended to provide that: (A) the Property shall be used solely and
exclusively for the Resort as shown on the Site Plan and in accordance with the Approvals and
for no other purposes and (B) for a period of ten years from the date of this First Amendment and
Owner agrees that it shall be precluded from requesting a rezoning or alteration of the use of the
Property during such time. If Owner requests a rezoning or alteration of the uses allowed under
the Lodging Zoning Category which is substantially inconsistent of the uses permitted under the
Lodging Zoning Category, this First Amendment or the Original Development Agreement, the
Original Development Agreement, as amended by this First Amendment, shall immediately
become null and void except that the Town shall retain the $634,470.71 payment set forth in
Section 6 above. The Owner shall commence construction with respect to the Resort as soon as
market conditions permit and market demands support such construction but no later than two
(2) years after the Town Council grants the Approvals, plus thirty (30) days. All references to
the “Hotel” or the “Villas” in Section 10 of the Original Development Agreement shall mean the
Resort and all references to the “Proposed L-3 Area” or the “R-4 Area” in Section 10 of the
Original Development Agreement shall collectively mean the existing L-3 PUD Areas of the
Property and the New Lodging Area. Owner specifically agrees and understands that Hotel
Construction requirements of Section 10 remain in full force and effect, such that any
construction of the Condominium Unit portion of the Resort is commenced prior to construction
of the Hotel portion of the Resort shall be conditioned and restricted in the same respect as the
Villa construction related to the Hotel construction in the Original Development Agreement.
9. Special Uses. Section 11 of the Original Development Agreement is hereby
deleted in its entirety and replaced with the following:
11. Special Uses; Condominium Units.
A. Special Uses. The Owner may, and likely will, require one
or more special use permits in order to operate the Resort as intended by
the Original Development Agreement and this First Amendment,
including allowing the Resort to offer, among other things, first-class
restaurants and bars; 24-hour room service; daily housekeeping, laundry
and maid services; concierge staff; health and fitness spa; business and
conference facilities; banquet facilities; and on-site maintenance staff (the
“Special Uses”). Accordingly, the Town shall consider for approval and
special use permits as necessary to allow for the Special Uses on the
Property; provided, however, that such Special Uses are complimentary to
the Resort as contemplated herein; provided further, however that nothing
contain herein shall limit the discretion of the Town relating to such
special use permits.
B. Condominium Units. It is anticipated that Owner will
submit a preliminary subdivision plat, which, pursuant to a Declaration of
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4
Condominium under Arizona law, will create 36 individual condominium
units (each a “Condominium Unit” or collectively, the “Condominium
Units”). Owner expressly agrees and understands that none of the
250 hotel rooms described in the First Amendment shall be Condominium
Units. Owner may sell each of the Condominium Units to individual
third-party owners or choose to retain ownership of the Condominium
Units or repurchase them and resell them from time-to-time. After a
Condominium Unit is sold, the individual owners may elect to occupy
their Condominium Unit or rent their Condominium Unit as set forth in
this subsection. In recognition that fee ownership of these Condominium
Units would decrease the amount of hotel bed taxes that the Resort would
generate for the Town were the Condominium Units continuously
available for rental to Resort guests, Owner, its successors or assigns shall
provide a method acceptable to the Town whereby individual owners of
privately-owned Condominium Units shall have the option to make such
Condominium Units available for rent through a centralized room rental
and reservation system through which bed taxes shall be collected and
remitted to the Town. Owner, its successors or assigns shall also provide
in its Declaration of Condominium that any individual owners who choose
to rent their units without availing themselves of the Resort’s centralized
room rental and reservation system shall be responsible to remit to the
Town all applicable taxes, including taxes applicable to short term rentals
under the Town Code. Bed taxes shall not be collected with respect to
Condominium Units that, at the time of their use, are owner-occupied.
10. Roadway Improvements; Traffic Signal. The Owner shall reimburse the Town
for installing and constructing acceleration and deceleration lanes and median cuts to provide
safe access into and out of Vista Drive from Palisades Boulevard together with a sidewalk along
Palisades Boulevard. The Owner shall be solely responsible for identifying and constructing all
roadway improvements as required by the Town’s development regulations and in accordance
with the Site Plan. Owner shall, at its sole cost and expense, install a traffic signal at the location
shown on Exhibit 3, attached hereto and incorporated herein by reference, at a time and in a
manner acceptable to the Town Engineer.
11. Landscaping. Owner shall be responsible for installing and constructing (i)
landscaping on and about the Southwest corner of the Property and extending along Palisades
Boulevard and (ii) a top-quality, first-class entrance into the Resort as identified on the Site Plan
(together, the “Landscaping Improvements”). The Landscaping Improvements shall be
identified and constructed in accordance with the Landscape Plan attached hereto as Exhibit 4
and incorporated herein by reference. All such Landscaping Improvements shall be completed
prior to issuance of the first certificate of occupancy for any portion of the Resort.
12. Architectural Approvals. In addition to the requirements of Chapter 19 of the
Town’s Zoning Ordinance and as soon as practical following approval of this First Amendment,
the Owner shall submit to the Town for its approval such elevation drawings and architectural
renderings and deemed desirable by the Town, showing all of the building design characteristics
696617.8
5
for the Resort, including but not limited to, colors, architectural treatments and details, building
massing and composition, building orientation, signage, monumentation, and surface treatments
for exposed retaining walls.
13. Site Development. There is hereby added to the Original Development
Agreement the following provision:
Upon the review and approval of the Approvals for the Property, the Town
hereby agrees to process in a timely manner, applications for approval,
review and issuance of plans, specifications, permits, plats or any other
required filings which substantially conform to the Site Plan, provided the
Owner has (A) complied with the ordinances and regulations applicable
thereto and all platting, applications and permit requirements of the Town
and (B) paid the then current applicable development fees.
14. Entitlements. There is hereby added to the Original Development Agreement the
following provision:
In consideration of the substantial expenditures by the Owner and in
consideration of the substantial sales, hotel bed and board taxes to be
generated from the Property from the construction of the Resort and the
subsequent operation of the Resort on the Property, Owner, its successors
and assigns following the commencement of construction shall have the
vested right to undertake and permit the development and use of the
Property in accordance with the Approvals, without being subjected to any
Town-initiated rezoning of the Property, so long as Owner, its successors
and assigns, are not in breach of this Agreement and so long as they have
not violated the terms and conditions of the Approvals.
15. Waiver of Claims Pursuant to ARIZ. REV. STAT. § 12-1134 et seq. The Owner
agrees and understands that the Town is entering into this Agreement 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 the Owner or other parties having an
interest in the Property. The Owner, on behalf of itself and all other parties having an interest in
the Property, intends to encumber the Property with the following agreements and waivers.
Owner agrees and consents to all the conditions imposed by this First Amendment and the
Original Development Agreement and the Approvals, and by signing this Agreement waives any
and all claims, suits, damages, compensation and causes of action the Owner may have now or in
the future under the provisions of ARIZ. REV. STAT. §§ 12-1134 through and including 12-1136
(but specifically excluding any provisions included therein relating to eminent domain) and
resulting from the development of the Property consistent with this First Amendment, the
Original Development Agreement or the Approvals. Owner acknowledges and agrees that
neither the Approvals nor anything contained herein would result in a reduction of the fair
market value of the Property as defined in ARIZ. REV. STAT. § 12-1136, as amended, or any
successor statute hereinafter enacted purporting to deal with the protection of property rights or
condemnation under Arizona law.
696617.8
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EXHIBIT 1
TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
[Legal Description of the Property]
See following pages.
696617.8
EXHIBIT 2
TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
[New Lodging Area]
See following pages.
696617.8
EXHIBIT 3
TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
[Traffic Signal Location]
See following pages.
696617.8
EXHIBIT 4
TO
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
[Landscaping Improvements]
See following pages.
696617.8
This exhibit is included for purposes of recording only. The full plan sets set forth below
and incorporated herein by reference are attached to the fully-executed duplicate original
of the First Amendment on file in the Office of the Fountain Hills Town Clerk.
Plans incorporated by reference:
Landscaping plans prepared by LVA Urban Design Studio, dated 4/6/07
Context plan
Site Plan
Resort Entry/Penthouse amenity
Main Pool
EXHIBIT H
TO
DEVELOPMENT AGREEMENT
[Amended Site Plan]
See following pages.
696617.8
This exhibit is included for purposes of recording only. The full plan sets set forth below and
incorporated herein by reference are attached to the fully-executed duplicate original of the First
Amendment on file in the Office of the Fountain Hills Town Clerk.
Plans incorporated by reference:
1. Architectural Plans prepared by Group West dated 4/6/07:
Perspective looking East from Shea
Perspective Looking Southwest from Palisades Blvd
Site Vicinity Diagram
Conceptual Site Plan
Plan 1st level through 8th level
Conceptual Hotel Elevations
Building Sections
2. Civil Improvement Plans prepared by Wood Patel and Dated 4/6/07
C1 Cover Page
C2 Aerial Location
T1 Topographic Exhibit
GD1-5 Conceptual Grading and Drainage plans
WS1-5 Conceptual Water and Sewer Plans
CF1-5 Conceptual Cut and Fill
EW1 Earthwork Cut and Fill Exhibit
HP1 Hillside Protective Easement Exhibit
OS1 Offsite Sidewalk Exhibit