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HomeMy WebLinkAboutAgenda 1-3-08Page z:\council packets\2008\1-3-08\agenda 1-3-08 .doc 12/28/2007 3:04 PM Page 1 of 3 NOTICE OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 6:30 P.M. WHEN: THURSDAY, JANUARY 3, 2008 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. If there is a Public Hearing, please submit the speaker card for that issue prior to the beginning of the Public Hearing and the Consideration of said issue. 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 Council Members. Speakers’ statements should not be repetitive. In order to conduct an orderly business meeting, the Presiding Officer shall keep control of the meeting and shall require the speakers and audience to refrain from abusive or profane remarks, disruptive outbursts, applause, protests or other conduct that disrupts or interferes with the orderly conduct of the business of the meeting. Personal attacks on Council members, Town staff or members of the public are not allowed. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. 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. 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. Mayor Wally Nichols Councilmember Mike Archambault Councilmember Henry Leger Vice Mayor Ginny Dickey Councilmember Keith McMahan Councilmember Ed Kehe Councilmember Jay Schlum Page z:\council packets\2008\1-3-08\agenda 1-3-08 .doc 12/28/2007 3:04 PM Page 2 of 3 CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Nichols INVOCATION – Pastor Don Lawrence, Christ’s Church of Fountain Hills ROLL CALL – Mayor Nichols MAYOR’S REPORT i) Recognition of Russ Yeskin, as Scottsdale Healthcare “Paramedic of the Year 2007”. ii) Recognition of Will Young, Luke Air Force Base “Airman of the Fourth Quarter 2007” 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 of December 11th and 20th 2007. 2. CONSIDERATION of RESOLUTION 2008-01, approving an Intergovernmental Agreement with Fort McDowell Yavapai Indian Nation relating to 2007 Proposition 202 funding. 3. CONSIDERATION of approving a PURCHASE AGREEMENT for new, replacement custom signs to include street name, regulatory and custom signs through Zumar Industries in the amount of $60,775.00. REGULAR AGENDA 4. CONSIDERATION of APPOINTING two (2) citizens to serve on the Board of Adjustment for two (2) year terms beginning February 1, 2008, and ending January 31, 2010. 5. PROGRESS REPORT on the established items of Council business: a. Development fees adjustment b. Downtown development agreement/C-2 Zoning to TCCD c. Environmental policy d. General access to the mountain preserve e. Preparing a sound town financial future f. State trust land/Ellman development agreement g. Town Hall water feature at Avenue of the Fountains and La Montana Drive h. Traffic control at Avenue of the Fountains and Saguaro. Page z:\council packets\2008\1-3-08\agenda 1-3-08 .doc 12/28/2007 3:04 PM Page 3 of 3 6. SUMMARY of COUNCIL REQUESTS by Town Manager. 7. 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. 8. ADJOURNMENT. DATED this 28th day of December 2007. 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\2008\1-3-08\aaf res 2008-01 prop 202 awards for 2007.docx Page 1 of 2 TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 1/3/2008 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 RESOLUTION 2008-01, approving an INTERGOVERNMENTAL AGREEMENT with Fort McDowell Yavapai Indian Nation for 2007 Proposition 202 funding requests. Applicant: NA Applicant Contact Information: NA Property Location: NA Related Ordinance, Policy or Guiding Principle: A.R.S. §5-601.02 and Resolution 2004-34 Staff Summary (background): The above reference states that Proposition 202 funds may be solicited by cities, towns, and counties from Arizona Indian Tribes for government services that benefit the general public including (i) public safety, (ii) mitigation of the impacts of gaming and (iii) promotion of commerce and economic development. Resolution 2004-34 was approved by the Town Council on July 1, 2004, and provides for the uniform application process for procurement of Proposition 202 funds on behalf of various entities. A copy of the entities' applications are on file in the Town Clerk's office. Below is the list of entities who were awarded Prop 202 funding by the Fort McDowell Yavapai Nation for 2007: Project Purpose Award Contact Extended Hands Food Bank Public Benefit $10,000.00 David Iverson Visitor Bureau Tourism $90,000.00 Fountain Hills Chamber of Commerce Town of Fountain Hills/Fire Department Public Safety $5,000.00 Interim Town Manager Fountain Hills Unified School District #98 Education Programs $70,000.00 Sandra E. Dowling TOTAL $175,000.00 Risk Analysis (options or alternatives with implications): Entities will not receive funds awarded if the Council does not approve. Fiscal Impact (initial and ongoing costs; budget status): $5,000 was awarded to the Town's Fire Department for the purchase of Automatic External Defibrillators, which will be carried in Fire Department vehicles. This purchase was not in the FY 07/08 budget but can now be made due to this funding award. Recommendation(s) by Board(s) or Commission(s): NA 795419.1 RESOLUTION NO. 2008-01 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE FORT MCDOWELL YAVAPAI NATION RELATING TO PROPOSITION 202 FUNDING. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That the Intergovernmental Agreement between the Town of Fountain Hills and the Fort McDowell Yavapai Nation relating to Proposition 202 funding for promotion of tourism and other public programs (the “Agreement”) is hereby approved 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 cause the execution of the Agreement 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, January 3, 2008. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: W. J. Nichols, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Kathleen M. Zanon, Interim Town Manager Andrew J. McGuire, Town Attorney 795419.1 EXHIBIT A TO RESOLUTION NO. 2008-01 [Intergovernmental Agreement] See following pages. Intergovernmental Agreement Between The Town of Fountain Hills and The Fort McDowell Yavapai Nation To Provide Funds For Promoting Tourism and other Public Programs in the Town of Fountain Hills And Surrounding Communities Pursuant To A Tribal Revenue Sharing Agreement Authorized By Section 12 Payment of Regulatory Costs; Tribal Contributions Fort McDowell Yavapai Nation and State of Arizona Gaming Compact 2002, And A.R.S. § 5-601.02 Fort McDowell, Arizona 674966.1 Intergovernmental Agreement Between The Town of Fountain Hills and The Fort McDowell Yavapai Nation to Provide Funds for Promoting Tourism and other Public Programs in the Town of Fountain Hills and Surrounding Communities This Intergovernmental Agreement (this “Agreement”) is entered into by and between the Town of Fountain Hills, an Arizona municipal corporation (the “Town”) and the Fort McDowell Yavapai Nation (the “Nation”), a Federally-Recognized Indian Tribe, pursuant to Section 12 Payment of Regulatory Costs; Tribal Contributions (“Section 12”) of the Fort McDowell Yavapai Nation and State of Arizona Gaming Compact 2002 (the “Compact”) and A.R.S. § 5-601.02. Recitals A. Town and Nation may enter into an agreement with one another for the distribution of 12% of the Nation’s annual contribution under Section 12(b)(1) of the Compact to cities, towns, or counties that benefit the general public or promote commerce and economic development and pursuant to A.R.S. § 5-601.02. B. The Nation is authorized by Section 13(A)(15) of Article V, Legislative Branch, of the Constitution of the Fort McDowell Yavapai Nation to consult, negotiate, contract and conclude and perform agreements with Federal, state, local governments and Indian tribes, as well as any person, association, partnership, corporation, government or other private entity. C. The Town is authorized by A.R.S. §§ 5-601.02 and 11-952 to enter into agreements with Indian Tribes for the purpose of accepting distributions to cities, towns or counties for governmental services that benefit the general public, including public safety, mitigation of impacts of gaming, or promotion of commerce and economic development. D. Town and Nation desire to enter into this Agreement to provide funds for the purpose of promoting tourism and other public programs in the State of Arizona and specifically the Town of Fountain Hills and surrounding communities, as designated by the Nation, hereinafter referred to as the “Designated Projects”, as more particularly described in Exhibit A attached hereto and incorporated herein by reference. E. Town and Nation desire to enter into this Agreement to define the terms and conditions of the Nations’ funding of the Designated Projects. F. The total cost of the Designated Projects is One Hundred Seventy Five Thousand dollars and zero cents ($175,000.00). G. $175,000.00 is hereby made available for the Designated Projects from revenue generated by the Nation’s Gaming Enterprise also known as the Fort McDowell Casino. H. The Nation intends to provide $175,000.00 (the “Funds”), which represents a portion of its contribution pursuant to a Tribal Revenue Sharing Agreement authorized by Section 12 of the Compact and A.R.S. § 5-601.02 to complete the Designated Projects. 792964.1 Agreement NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein, and the covenants and promises set forth below, the Nation and the Town, hereby mutually agree as follows: 1. Designated Projects. The Designated Projects consist of the Nation providing the Funds to entities within the Town of Fountain Hills to promote tourism and other public programs in the Town of Fountain Hills and surrounding area, as identified in the attached Exhibit A. Funding Agreements shall be executed by and between the Nation and Designated Entities; provided, however, the Town shall not be a party to such funding requests. 2. Disbursement of Funds. Promptly after receipt of the Funds and an executed Funding Agreement between the Nation and the respective Designated Entity, the Town shall send a payment to such Designated Entity in the amount of the payment received from the Nation. 3. Consideration and Reliance. The Nation expressly acknowledges that the Town’s promise to accept and disburse to the Designated Entities all Funds received by the Town pursuant to this Agreement is full and adequate consideration and shall render this promise to provide funding irrevocable, and this Agreement shall constitute a binding obligation of the Nation under applicable law. 4. Limited Duties of Town. The Nation further expressly agrees that, except as specifically set forth in this Agreement, the Town has no duties under or related to this Agreement other than to receive the Funds and deliver same to the Designated Entities; selection of Designated Entities and determination as to the amount of funding are solely at the discretion of the Nation. The Parties agree that there are no third-party beneficiaries to this Agreement. 5. Financing; Verification of Payment. A. Nation Deposit. The Nation shall deposit with the Town the amount of $175,000.00 within thirty 30) days of the Effective Date of this Agreement to be disbursed according the Designated Project amounts in Exhibit A. B. Verification of Payment. At the request of the Nation, the Town shall provide a verification of payment to the Designated Entities. The Town’s responsibility is limited to disbursement to each Designated Entities and the Town’s has no further duty with regard to third party Agreements executed between the Nation and Designated Entities, provided that the disbursement is complete. 6. Inspection and Audit. To ensure compliance with the Town’s limited duties herein, the Nation may inspect any and all records maintained by the Town with respect to the Project upon seven (7) days prior, written notice to the Town. This Section 6 shall survive termination, cancellation, or revocation, whether whole or in part, of this Agreement for a period of one (1) year following the date of such termination, cancellation, or revocation. 7. Term and Termination of Agreement. A. Effective Date. This Agreement shall be effective on the date it is signed by the Nation’s authorized representative. B. Term. This Agreement shall commence upon the Effective Date and shall terminate when the funds have been received by the Town and disbursed to the Designated Entities. 792964.1 2 C. Termination. The Nation may terminate this Agreement with or without cause at any time prior to providing payment to the Town, provided that such notice shall be in writing and delivered to the parties’ designated representatives, as set forth in the Notice section. 8. Indemnification. A. Indemnification. Each party shall indemnify, defend, and hold harmless the other party, its governing body, officers, departments, employees and agents from and against any and all suits, actions, legal or administrative proceedings, claims, demands, liens, losses, fines or penalties, damages, liability, interest, attorney’s, consultant’s, and account’s fees or costs and expenses of whatsoever kind and nature, resulting from or arising out of the negligence or willful misconduct of the indemnifying party, its employees or agents in performing the duties set forth in this Agreement. B. No Liability for Other Party’s Debts and Obligations. Neither party shall be liable for any debts, accounts, obligations, nor other liabilities whatsoever of the other, including and without limitation the other party’s obligation to withhold employment and income taxes for itself or any of its employees. C. Severability. This Section 8 shall survive termination, cancellation, or revocation, whether whole or in part, of this Agreement for a period of one (1) year from the date of such termination, cancellation or revocation unless a timely claim is filed under A.R.S. § 12-821.01, in which case this Section 8 shall remain in effect for each claim and/or lawsuit filed thereafter, but in no event shall this Section 8 survive more than five (5) years from the date of termination, cancellation or revocation of this Agreement. 9. Interpretation of Agreement. A. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained herein, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superceded and merged herein. B. Amendment. This Agreement shall not be modified, amended, altered, or changed except by written agreement signed by both parties. C. Construction and Interpretation. All provisions of this Agreement shall be construed to be consistent with the intention of the parties as expressed in the recitals contained herein. D. Relationship of the Parties. Neither party shall be deemed to be an employee or agent of the other party to this Agreement. E. Days. Days shall mean calendar days. F. Severability. In the event that any provision of this Agreement or the application thereof is declared invalid or void by statute or judicial decision, such action shall have no effect on other provisions and their application which can be given effect without the invalid or void provision or application, and to this extent the provisions of the Agreement are severable. In the event that any provision of this Agreement is declared invalid or void, the parties agree to meet promptly upon request of the other party in an attempt to reach and agreement on a substitute provision. 792964.1 3 10. Waiver. Waiver or delay in enforcement by either party of any breach of a term, covenant, or condition contained herein shall not be deemed a waiver of any other term, covenant, or condition, or any subsequent breach of the same or any other term, covenant, or condition contained herein. 11. Notification. Any notice, communication, or modification shall be given in writing and shall be given by registered or certified mail or in person to the following individuals. The date of receipt of such notices shall be the date the notice shall be deemed to have been given. For the Fort McDowell Yavapai Nation: Orlando Moreno, General Manager Drew Ryce, General Counsel Fort McDowell Yavapai Nation Fort McDowell Yavapai Nation P.O. Box 17779 P.O. Box 17779 Fountain Hills, AZ 85269 Fountain Hills, AZ 85269 For the Town of Fountain Hills: Kathleen M. Zanon, Interim Town Manager Andrew McGuire, Town Attorney Town of Fountain Hills GUST ROSENFELD, P.L.C. 16705 E. Avenue of the Fountains 201 E. Washington, Suite 800 Fountain Hills, AZ 85268 Phoenix, Arizona 85004-2327 12. Assignment and Delegation. Neither party shall assign nor delegate any of its rights, interest, obligations, covenants, or performance under this Agreement. Any termination shall not relieve either party from liabilities or costs already incurred under this Agreement. 13. Non-Waiver of Sovereign Immunity. Nothing in this Agreement, Exhibit A or the Funding Agreements shall be construed to waive the Sovereign Immunity of the Nation. [SIGNATURES ON FOLLOWING PAGE] 792964.1 4 IN WITNESS WHEREOF, The Town of Fountain Hills has caused this Intergovernmental Agreement to be executed by the Town Manager, upon resolution of the Town Council and attested by the Clerk of the Town, and the Fort McDowell Yavapai Nation has caused this Intergovernmental Agreement to be executed by the Nation’s Tribal Council and attested to by its Clerk. This Agreement is effective upon signature of a duly appointed representative of the Fort McDowell Yavapai Nation. ATTEST: FORT MCDOWELL YAVAPAI NATION Pansy Thomas, Secretary Raphael R. Bear Fort McDowell Yavapai Nation President, Tribal Council Fort McDowell Yavapai Nation Date ATTEST: TOWN OF FOUNTAIN HILLS Bevelyn J. Bender, Clerk Kathleen M. Zanon Town of Fountain Hills Interim Town Manager Town of Fountain Hills Date 792964.1 5 The undersigned attorney acknowledges that he has reviewed the above Agreement on behalf of the FORT MCDOWELL YAVAPAI NATION, and has determined that this Agreement is in proper form and that execution hereof is within the powers and authority granted under the Constitution of the Fort McDowell Yavapai Nation, Section 13(A)(15), Article V Legislative Branch, as adopted October 19, 1999 and approved by the U.S. Deputy Commissioner of Indian Affairs November 12, 1999. This acknowledgement shall not constitute nor be construed as a waiver of the Sovereign Immunity of the Fort McDowell Yavapai Nation. Drew Ryce, General Counsel Date Fort McDowell Yavapai Nation In accordance with the requirements of A.R.S. § 11-952(D), the undersigned attorney acknowledges that (i) he has reviewed the above Agreement on behalf of the TOWN OF FOUNTAIN HILLS and (ii) as to the Town of Fountain Hills only, has determined that this Agreement is in proper form and that execution hereof is within the powers and authority granted under the laws of the State of Arizona. Andrew J. McGuire, Town Attorney Date 792964.1 6 EXHIBIT A DESIGNATED PROJECTS Project(s) Purpose Award Contact Extended Hands Public Benefit $10,000.00 David Iverson Food Bank. 16524 E. Laser Dr. Fountain Hills AZ 85268 480-837-0309 Town of Fountain Hills Tourism $90,000.00 Chamber Of Commerce Visitor’s Bureau Fountain Hills Public Safety $5,00000 Town Manager Fire Department Fountain Hills Unified Education Programs $70,000.00 Sandra E. Dowling School District #98 16000 E. Palisades Blvd. Ftn. Hills, AZ 85268 (480) 664-5000 TOTAL $175,000.00 792964.1 z:\council packets\2008\1-3-08\board of adj appoint 08.docx Page 1 of 2 TOWN OF FOUNTAIN HILLS TOWN COUNCIL AGENDA ACTION FORM Meeting Date: 1/3/2008 Meeting Type: Regular Agenda Type: Regular Submitting Department: Planning and Zoning Staff Contact Information: Richard Turner, AICP, Director of Planning and Zoning Strategic Priority: Not applicable Council Goal: Not applicable REQUEST TO COUNCIL: Consideration of appointing two (2) citizens to serve on the Board of Adjustment for a two-year term beginning February 1, 2008 and ending January 31, 2010 Applicant: N/A Applicant Contact Information: N/A Property Location: N/A Related Ordinance, Policy or Guiding Principle: Town of Fountain Hills Town Code, Article 2-8, Section 2-8-2, Membership. Staff Summary (background): On January 31, 2008, E. K. (Bud) Ohsman's term expires and Mr. Oshman has decided not to request reappointment. Another opening was created on the Board upon the September 20, 2007, appointment of Clark Summerfield to the Planning and Zoning Commission. Staff is requesting the Town Council's appointment of Paul Ryan and Angela Strohan to serve on the Board of Adjustment to two (2) year terms. Both applications were accepted on December 6, 2007 and the Town Council interviewed both applicants on December 20, 2007. Risk Analysis (options or alternatives with implications): None Fiscal Impact (initial and ongoing costs; budget status): None Recommendation(s) by Board(s) or Commission(s): N/A Staff Recommendation(s): Consider the appointment of Paul Ryan and Angela Strohan to the Board of Adjustment for two (2) year terms beginning February 1, 2008 and ending January 31, 2010. SUGGESTED MOTION: Move to appoint Paul Ryan and Angela Strohan to serve on the Board of Adjustment for two (2) year terms. Attachment(s): None