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HomeMy WebLinkAbout110203P NOTICE OF THE EXECUTIVE AND REGULAR SESSIONS OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 5:00 P.M. - EXECUTIVE SESSION (Executive Session will be held in the Fountain Conference Room - 2nd floor) 6:30 P.M. - REGULAR SESSION WHEN: THURSDAY, FEBRUARY 3, 2011 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ PROCEDURE FOR ADDRESSING THE COUNCIL Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council Chamber Lobby and near the Clerk’s position on the dais. Speakers will be called in the order in which the speaker cards were received either by the Clerk or the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to state their name prior to commenting and to direct their comments to the Presiding Officer and not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a later time or (ii) transfer any portion of their time to another speaker. If there is a Public Hearing, please submit the speaker card to speak to that issue during the Public Hearing. Individual speakers will be allowed three contiguous minutes to address the Council. Time limits may be waived by (i) discretion of the Town Manager upon request by the speaker not less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the Mayor either prior to or during a Meeting. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. Mayor Jay T. Schlum Vice Mayor Dennis Brown Councilmember Tait D. Elkie Councilmember Dennis Contino Councilmember Cassie Hansen Councilmember Ginny Dickey Councilmember Henry Leger Z:\Council Packets\2011\R2-3-11\110203A.docx Last printed 1/27/2011 1:34 PM Page 2 of 3 EXECUTIVE SESSION AGENDA CALL TO ORDER – Mayor Jay T. Schlum 1.) ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: (i) Pursuant to §38- 431.03(A)(7), discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sales or lease of real property (specifically, a possible property exchange); and (ii) Pursuant to §38-431.03(A)(3), discussion or consultation for legal advice with the attorney or attorneys of the public body (specifically, legal advice regarding land development). 2.) ADJOURNMENT. REGULAR SESSION AGENDA CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum INVOCATION – Carolyn Goldberg, President of Congregation, Temple Beth Hagivot ROLL CALL – Mayor Jay T. Schlum MAYOR’S REPORT i) Mayor Schlum will read a proclamation declaring February 8 through 11, 2011, Pony Express Week. SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) Rotation of the Vice Mayor position to Councilmember Dennis Contino. Pursuant to Section 2-2-2 of the Fountain Hills Town Code, that each member of the Council, except the Mayor, shall serve an eight-month term as Vice Mayor and shall perform the duties of the Mayor during his absence or disability. 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 Co uncil 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 January 11, 13, and 20, 2011. 2. CONSIDERATION of approving a LIQUOR LICENSE APPLICATION submitted by Luigi DeRose, Owner/Agent of TDR Investments LLC dba Luigi’s Pizza and Pasta, located at 16740 E. Palisades Blvd., Fountain Hills, AZ. This is for a series 12 license (Restaurant). 3. CONSIDERATION of RESOLUTION 2011-04, abandoning whatever right, title or interest it has in certain real property and authorizing the exchange of certain easements generally located along Golden Eagle Boulevard, East of Desert Fox Parkway. Z:\Council Packets\2011\R2-3-11\110203A.docx Last printed 1/27/2011 1:34 PM Page 3 of 3 REGULAR AGENDA 4. CONSIDERATION of approving CHANGE ORDER C2011-115.1, between the Town of Fountain Hills and Gen-Tech, for an automatic transfer switch in the amount of $2,836.05. 5. 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. 6. SUMMARY of COUNCIL REQUESTS and REPORT ON RECENT ACTIVITIES by the Town Manager. 7. ADJOURNMENT. DATED this 27th day of January 2011. Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480 -816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council with this agenda are available for review in the Clerk’s office. NOTICE OF THE EXECUTIVE AND REGULAR SESSIONS OF THE FOUNTAIN HILLS TOWN COUNCIL TIME: 5:00 P.M. - EXECUTIVE SESSION (Executive Session will be held in the Fountain Conference Room - 2nd floor) 6:30 P.M. - REGULAR SESSION WHEN: THURSDAY, FEBRUARY 3, 2011 WHERE: FOUNTAIN HILLS COUNCIL CHAMBERS 16705 E. AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ PROCEDURE FOR ADDRESSING THE COUNCIL Anyone wishing to speak before the Council must fill out a speaker’s card and submit it to the Town Clerk prior to Council discussion of that Agenda item. Speaker Cards are located in the Council Chamber Lobby and near the Clerk’s position on the dais. Speakers will be called in the order in which the speaker cards were received either by the Clerk or the Mayor. At that time, speakers should stand and approach the podium. Speakers are asked to state their name prior to commenting and to direct their comments to the Presiding Officer and not to individual Councilmembers. Speakers’ statements should not be repetitive. If a speaker chooses not to speak when called, the speaker will be deemed to have waived his or her opportunity to speak on the matter. Speakers may not (i) reserve a portion of their time for a later time or (ii) transfer any portion of their time to another speaker. If there is a Public Hearing, please submit the speaker card to speak to that issue during the Public Hearing. Individual speakers will be allowed three contiguous minutes to address the Council. Time limits may be waived by (i) discretion of the Town Manager upon request by the speaker not less than 24 hours prior to a Meeting, (ii) consensus of the Council at Meeting or (iii) the Mayor either prior to or during a Meeting. Please be respectful when making your comments. If you do not comply with these rules, you will be asked to leave. Mayor Jay T. Schlum Vice Mayor Dennis Brown Councilmember Tait D. Elkie Councilmember Dennis Contino Councilmember Cassie Hansen Councilmember Ginny Dickey Councilmember Henry Leger Z:\Council Packets\2011\R2-3-11\110203A.docx Last printed 1/27/2011 1:34 PM Page 2 of 3 EXECUTIVE SESSION AGENDA CALL TO ORDER – Mayor Jay T. Schlum 1.) ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: (i) Pursuant to §38- 431.03(A)(7), discussions or consultations with designated representatives of the public body in order to consider its position and instruct its representatives regarding negotiations for the purchase, sales or lease of real property (specifically, a possible property exchange); and (ii) Pursuant to §38-431.03(A)(3), discussion or consultation for legal advice with the attorney or attorneys of the public body (specifically, legal advice regarding land development). 2.) ADJOURNMENT. REGULAR SESSION AGENDA CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum INVOCATION – Carolyn Goldberg, President of Congregation, Temple Beth Hagivot ROLL CALL – Mayor Jay T. Schlum MAYOR’S REPORT i) Mayor Schlum will read a proclamation declaring February 8 through 11, 2011, Pony Express Week. SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) Rotation of the Vice Mayor position to Councilmember Dennis Contino. Pursuant to Section 2-2-2 of the Fountain Hills Town Code, that each member of the Council, except the Mayor, shall serve an eight-month term as Vice Mayor and shall perform the duties of the Mayor during his absence or disability. 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 Co uncil 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 January 11, 13, and 20, 2011. 2. CONSIDERATION of approving a LIQUOR LICENSE APPLICATION submitted by Luigi DeRose, Owner/Agent of TDR Investments LLC dba Luigi’s Pizza and Pasta, located at 16740 E. Palisades Blvd., Fountain Hills, AZ. This is for a series 12 license (Restaurant). 3. CONSIDERATION of RESOLUTION 2011-04, abandoning whatever right, title or interest it has in certain real property and authorizing the exchange of certain easements generally located along Golden Eagle Boulevard, East of Desert Fox Parkway. Z:\Council Packets\2011\R2-3-11\110203A.docx Last printed 1/27/2011 1:34 PM Page 3 of 3 REGULAR AGENDA 4. CONSIDERATION of approving CHANGE ORDER C2011-115.1, between the Town of Fountain Hills and Gen-Tech, for an automatic transfer switch in the amount of $2,836.05. 5. 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. 6. SUMMARY of COUNCIL REQUESTS and REPORT ON RECENT ACTIVITIES by the Town Manager. 7. ADJOURNMENT. DATED this 27th day of January 2011. Bevelyn J. Bender, Town Clerk The Town of Fountain Hills endeavors to make all public meetings accessible to persons with disabilities. Please call 480-816-5100 (voice) or 1-800-367-8939 (TDD) 48 hours prior to the meeting to request a reasonable accommodation to participate in this meeting or to obtain agenda information in large print format. Supporting documentation and staff reports furnished the Council with this agenda are available for review in the Clerk’s office. TOWN OF FOUNTAIN HILLS PROCLAMATION Whereas, the Pony Express played a particularly important and colorful part in the history of the West dating back between 1860 and 1861, And Whereas, each year the Pony Express riders are remembered with a commemorative ride by the members of the Hashknife Gang traveling from Holbrook to Scottsdale, And Whereas, Fountain Hills is the next to last stop on their trek, Now, Therefore, February 8 through 11, 2011, are hereby proclaimed to be Pony Express Days in the Town of Fountain Hills. All Town residents, visitors, and residents and visitors of surrounding areas are invited to join in the festivities and dress western to commemorate this part of our history in the West. IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the official seal of the Town of Fountain Hills, Maricopa County, Arizona this 3rd day of February, 2011. _______________________________________ Jay T. Schlum, Mayor ATTEST: _______________________________________ Bevelyn J. Bender, Town Clerk REDACTED 1367219.3 RESOLUTION NO. 2011-04 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST IT HAS IN CERTAIN REAL PROPERTY AND AUTHORIZING THE EXCHANGE OF CERTAIN EASEMENTS GENERALLY LOCATED ALONG GOLDEN EAGLE BOULEVARD, EAST OF DESERT FOX PARKWAY. WHEREAS, the Town of Fountain Hills (the “Town”) is the owner of certain right-of- way generally located along Golden Eagle Boulevard, east of Desert Fox Parkway (the “Property”) and certain easements appurtenant to the Property (the “Appurtenant Easements”); and WHEREAS, the Mayor and Council of the Town of Fountain Hills (i) has determined that the Property is no longer needed for public use, (ii) has no useful purpose or value and (iii) desires to abandon whatever right, title, or interest it has in the Property; and WHEREAS, pursuant to ARIZ. REV. STAT. § 28-7201, et seq., the Town may abandon the Property without compensation to the Town from those to whom legal title to the Property will vest upon such abandonment (the “Recipients”), in the event the Recipients agree to assume (i) the cost of maintaining the Property and (ii) the liability for the Property; and WHEREAS, the Town desires to vacate and abandon the Property and transfer its interest therein to the Recipients and the Recipients have agreed to assume (i) the cost of maintaining the Property and (ii) liability for the Property; and WHEREAS, the Town desires to accept the dedication of certain alternate easements in exchange for the extinguishment of the Appurtenant Easements. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. The recitals above are hereby incorporated as if fully set forth herein. SECTION 2. The Property, as more particularly depicted on Exhibit A and described on Exhibit B and Exhibit C, each attached hereto and incorporated herein by reference, is hereby abandoned by the Town and the legal title thereto is vested in the Recipients, in accordance with ARIZ. REV. STAT. § 28-7205. SECTION 3. A public utility and sidewalk easement and a public utility easement, each as more particularly depicted on Exhibit D and described on Exhibit E and Exhibit F, each attached hereto and incorporated herein by reference, are hereby abandoned by the Town. 1367219.3 2 SECTION 4. A vehicular no access easement and a no build easement, each as more particularly depicted on Exhibit G and described on Exhibit H and Exhibit I, each attached hereto and incorporated herein by reference, are hereby abandoned by the Town. SECTION 5. The dedication of a public utility and sidewalk easement and a public utility easement, each as more particularly depicted on Exhibit J and described on Exhibit K and Exhibit L, each attached hereto and incorporated herein by reference, are hereby accepted by the Town. SECTION 6. The dedication of a vehicular no access easement and a no build easement, each as more particularly depicted on Exhibit M and described on Exhibit N and Exhibit O, each attached hereto and incorporated herein by reference, are hereby accepted by the Town. SECTION 7. 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 provisions and such holding shall not affect the validity of the remaining portions of this Resolution. SECTION 8. The Mayor, the Town Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to take all steps and to execute all documents necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, February 3, 2011. FOR THE TOWN OF FOUNTAIN HILLS: ATTESTED TO: Jay T. Schlum, Mayor Bevelyn J. Bender, Town Clerk REVIEWED BY: APPROVED AS TO FORM: Richard L. Davis, Town Manager Andrew J. McGuire, Town Attorney 1367219.3 EXHIBIT A TO RESOLUTION NO. 2011-04 [Map of Property Abandonment] See following page. 1367219.3 EXHIBIT B TO RESOLUTION NO. 2011-04 [Legal Description of Property Abandonment] See following page. 1367219.3 EXHIBIT C TO RESOLUTION NO. 2011-04 [Legal Description of Property Abandonment] See following pages. 1367219.3 EXHIBIT D TO RESOLUTION NO. 2011-04 [Map of Public Utility and Sidewalk Easement and Public Utility Easement Abandonment] See following page. 1367219.3 EXHIBIT E TO RESOLUTION NO. 2011-04 [Legal Description of Public Utility and Sidewalk Easement Abandonment] See following pages. 1367219.3 EXHIBIT F TO RESOLUTION NO. 2011-04 [Legal Description of Public Utility Easement Abandonment] See following pages. 1367219.3 EXHIBIT G TO RESOLUTION NO. 2011-04 [Map of Vehicle No Access Easement and No Build Easement Abandonment] See following page. 1367219.3 EXHIBIT H TO RESOLUTION NO. 2011-04 [Legal Description of Vehicle No Access Easement Abandonment] See following pages. 1367219.3 EXHIBIT I TO RESOLUTION NO. 2011-04 [Legal Description of No Build Easement Abandonment] See following pages. 1367219.3 EXHIBIT J TO RESOLUTION NO. 2011-04 [Map of Public Utility and Sidewalk Easement and Public Utility Easement Dedication] See following page. 1367219.3 EXHIBIT K TO RESOLUTION NO. 2011-04 [Legal Description of Public Utility and Sidewalk Easement Dedication] See following page. 1367219.3 EXHIBIT L TO RESOLUTION NO. 2011-04 [Legal Description of Public Utility Easement Dedication] See following pages. 1367219.3 EXHIBIT M TO RESOLUTION NO. 2011-04 [Map of Vehicle No Access Easement and No Build Easement Dedication] See following page. 1367219.3 EXHIBIT N TO RESOLUTION NO. 2011-04 [Legal Description of Vehicle No Access Easement Dedication] See following page. 1367219.3 EXHIBIT O TO RESOLUTION NO. 2011-04 [Legal Description of No Build Easement Dedication] See following pages. 1385777.2 When Recorded Mail To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 PUBLIC UTILITY AND SIDEWALK EASEMENT AGREEMENT GRANTOR: MCO Properties Inc., a Delaware corporation GRANTEE: Town of Fountain Hills, an Arizona municipal corporation (the “Town”) THIS PUBLIC UTILITY AND SIDEWALK EASEMENT AGREEMENT (this “Agreement”) is entered into , 2011, by and between the Town and Grantor for the purposes set forth below. RECITALS A. On February 3, 2011, the Mayor and Council of the Town adopted Resolution No. 2011-04 (the “Resolution”) relating to vacating and abandoning certain rights-of-way and easements and accepting the dedication of substitute easements. B. Grantor is the record owner of certain real property at the location described and depicted on Exhibit A, attached hereto and incorporated herein by this reference (the “Easement Area”). C. The Town and Grantor desire to enter into this Agreement for Grantor to grant to the Town a non-exclusive, continuous and perpetual easement together with the necessary right of access, ingress and egress over the Easement Area (the “Easement”), for purposes of installing, operating, inspecting, maintaining, repairing, replacing or removing public utilities and public facilities, including, but not limited to, irrigation, fire hydrants, street lights, street pavement, curbs, sidewalks, traffic control signs/signals and equipment and all appurtenances thereto (the “Facilities”) as more particularly described herein to carry out a portion of the transaction contemplated by the Resolution. D. The Grantor specifically agrees and understands that the Town is not the sole provider of utilities within Fountain Hills and it is an express purpose of this Agreement to allow other utility providers to utilize the Easement Area for their respective facilities. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference and the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1385777.2 2 1. Accuracy of Recitals. The parties hereby acknowledge the accuracy of the recitals set forth above. 2. Grant of Easement. The Grantor hereby grants and conveys the Easement to the Town for the installation, operation, inspection, maintenance, repair, replacement or removal of the Facilities within such Easement, whether such Facilities are installed, operated, inspected, maintained, repaired, replaced, removed or otherwise owned or controlled by the Town or a utility provider other than the Town, as may be permitted by law within such Easement. 3. Maintenance of the Easement. Grantor shall not install or construct, or authorize to be installed or constructed, any building, structure, or other improvement or obstruction which shall interfere with or impede the Town’s or other public utility providers’ access to the Easement Area or the Town’s right to maintain the Facilities in the Easement, nor shall Grantor drill any well, plant any trees, store materials of any kind, or alter ground level by cut or fill, within the limits of the Easement Area, without the prior, written consent of the Town. 4. Indemnification. The Town shall, to the extent permitted by law, indemnify and hold Grantor harmless from any and all damages, costs, expenses, attorney fees, claims or liabilities arising from or relating to the use of the Easement Area by the Town, its successors in interest, assigns, agents, employees, visitors or invitees. 5. No Assignment. The Town shall have no right or authority to assign, in whole or in part, any of its rights or obligations under this Agreement, or any portion of this Agreement to any third party without the prior written consent of Grantor, which consent shall not be unreasonably delayed, conditioned or denied. Grantor specifically agrees and understands that it shall not be deemed an assignment under this Agreement for other utility providers to utilize the Easement for their respective purposes. 6. Liens and Encumbrances. The Town represents and warrants that it will maintain the Easement Area free and clear from any liens or encumbrances of any nature whatsoever in connection with Town’s construction of improvements on the Easement Area or the use by Town of the Easement Area. 7. Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the assigns and successors and tenants of the parties hereto. 8. Attorneys’ Fees. Either party may enforce this instrument by appropriate legal action and the prevailing party in such litigation may recover as part of its costs in such action reasonable attorneys’ fees and court costs. 9. Additional Easements. Nothing contained in this Agreement shall prohibit Grantor from conveying additional easements for access, utility or other purposes through, over, under, upon, in, across and along the Easement Area to the owners of properties which abut the Easement Area or to government or quasi-governmental agencies; provided, however, that no such additional rights or easement shall impair the Town’s use of the Easement herein granted. 1385777.2 3 10. Entire Agreement. This instrument contains the entire agreement between the parties relating to Town’s use of the Easement for Facility installation, operation and maintenance. Any oral representations or modifications concerning this instrument shall be of no force or effect, excepting a subsequent modification in writing, signed by the parties. 11. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511 at which time, the Easement shall be extinguished. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. ACCEPTED BY: “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation By: Richard L. Davis, Town Manager “Grantor” MCO PROPERTIES INC., a Delaware corporation By: Name: Title: ATTEST: Bevelyn J. Bender, Town Clerk 1385777.2 4 (ACKNOWLEDGMENTS) STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on , 2011, by , as , of MCO PROPERTIES INC., a Delaware corporation, on behalf of the corporation. Notary Public in and for the State of My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2011, by Richard L. Davis, Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: 1385777.2 EXHIBIT A TO PUBLIC UTILITY AND SIDEWALK EASEMENT AGREEMENT [Legal Description and Map of Easement Area] See following pages. 1385734.2 When Recorded Mail To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 VEHICULAR NON-ACCESS EASEMENT AGREEMENT GRANTOR: MCO Properties Inc., a Delaware corporation GRANTEE: Town of Fountain Hills, an Arizona municipal corporation (the “Town”) THIS VEHICULAR NON-ACCESS EASEMENT AGREEMENT (this “Agreement”) is entered into , 2011, by and between the Town and the Grantor for the purposes set forth below. RECITALS A. On February 3, 2011, the Mayor and Council of the Town adopted Resolution No. 2011-04 (the “Resolution”) relating to vacating and abandoning certain rights-of-way and easements and accepting the dedication of substitute easements. B. Grantor is the record owner of certain real property at the location described and depicted on Exhibit A, attached hereto and incorporated herein by this reference (the “Easement Area”). C. The Town and the Grantor desire to enter into this Agreement for Grantor to grant to the Town a non-exclusive, continuous and perpetual vehicular non-access covenant-easement (the “Easement”) as more particularly described herein to carry out a portion of the transaction contemplated by the Resolution. AGREEMENT NOW, THEREFORE, in consideration of the recitals set forth above, which are incorporated herein by reference, the mutual covenants set forth herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and the Town agree as follows: 1. Accuracy of Recitals. The parties hereby acknowledge the accuracy of the recitals set forth above. 2. Grant of Easement. Grantor hereby grants and conveys to the Town the Easement that Grantor shall not, nor shall Grantor’s successors, heirs and assigns, permit vehicular access on, over or across the Easement Area. However, Grantor shall have full use and enjoyment of the Easement Area for all other purposes, including non-vehicular ingress and egress, and the maintenance of utility services on, over and under the Easement Area, and such Easement Area 1385734.2 2 may be improved and used for sidewalks, non-motorized vehicle access, curbs and gutters, roadways, landscaping and other uses which do not constitute vehicular access. 3. Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the successors, assigns, employees, tenants, subtenants, licensees, concessionaires, agents, representatives, guests and invitees of the parties hereto. 4. Attorneys’ Fees. Either party may enforce this instrument by appropriate legal action and the prevailing party in such litigation may recover as part of its costs in such action reasonable attorneys’ fees and court costs. 5. Additional Easements. Nothing contained in this Agreement shall prohibit Grantor from conveying additional easements for access, utility or other purposes through, over, under, upon, in, across and along the Easement Area to other parties; provided however, that no such additional rights or easements shall interfere with or abridge the rights conveyed to the Town by this Agreement. 6. Counterparts. This Agreement may be executed in counterparts, all of which are identical, each of which shall be deemed an original, and all of which counterparts, when executed, in the aggregate shall constitute one and the same instrument. 7. Entire Agreement. This instrument contains the entire agreement between the parties relating to parties’ use of the Easement Area. Any oral representations or modifications concerning this instrument shall be of no force or effect, excepting a subsequent modification in writing, signed by the parties. 8. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511, at which time the Easement shall be extinguished. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. ACCEPTED BY: “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation By: Richard L. Davis, Town Manager “Grantor” MCO PROPERTIES INC., a Delaware corporation By: Name: Title: ATTEST: Bevelyn J. Bender, Town Clerk 1385734.2 3 (ACKNOWLEDGMENTS) STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on , 2011, by , as , of MCO PROPERTIES INC., a Delaware corporation, on behalf of the corporation. Notary Public in and for the State of My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2011, by Richard L. Davis, Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: 1385734.2 EXHIBIT A TO VEHICULAR NON-ACCESS EASEMENT AGREEMENT [Legal Description and Map of Easement Area] See following pages. 1374188.2 When Recorded Mail To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 NO-BUILD EASEMENT AGREEMENT GRANTOR: MCO Properties Inc., a Delaware corporation GRANTEE: Town of Fountain Hills, an Arizona municipal corporation (the “Town”) THIS NO-BUILD EASEMENT AGREEMENT (this “Agreement”) is entered into , 2011, by and between the Town and the Grantor for the purposes set forth below. RECITALS A. On February 3, 2011, the Mayor and Council of the Town adopted Resolution No. 2011-04 (the “Resolution”) relating to vacating and abandoning certain rights-of-way and easements and accepting the dedication of substitute easements. B. Grantor is the record owner of certain real property at the location described and depicted on Exhibit A, attached hereto and incorporated herein by this reference (the “Easement Area”). C. The Town and the Grantor desire to enter into this Agreement for Grantor to grant to the Town a non-exclusive, continuous and perpetual no-build covenant-easement (the “Easement”) together with the necessary right of access, ingress and egress over the Easement Area as more particularly described herein to carry out a portion of the transaction contemplated by the Resolution. AGREEMENT NOW, THEREFORE, in consideration of the recitals set forth above, which are incorporated herein by reference, the mutual covenants set forth herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and the Town agree as follows: 1. Accuracy of Recitals. The parties hereby acknowledge the accuracy of the recitals set forth above. 2. Grant of Easement. Grantor hereby grants and conveys to the Town the Easement that Grantor shall not, nor shall Grantor’s successors, heirs and assigns, construct buildings on the surface of the Easement Area. However, Grantor shall have full use and enjoyment of the Easement Area for all other purposes, including ingress and egress, and the maintenance of utility services on, over and under the Easement Area, and such Easement Area may be improved and 1374188.2 2 used for sidewalks, access, drives, curbs and gutters, parking, roadways, landscaping and other uses which do not constitute buildings according to the current building code. 3. Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the successors, assigns, employees, tenants, subtenants, licensees, concessionaires, agents, representatives, guests and invitees of the parties hereto. 4. Attorneys’ Fees. Either party may enforce this instrument by appropriate legal action and the prevailing party in such litigation may recover as part of its costs in such action reasonable attorneys’ fees and court costs. 5. Additional Easements. Nothing contained in this Agreement shall prohibit Grantor from conveying additional easements for access, utility or other purposes through, over, under, upon, in, across and along the Easement Area to other parties; provided however, that no such additional rights or easements shall interfere with or abridge the rights conveyed to the Town by this Agreement. 6. Counterparts. This Agreement may be executed in counterparts, all of which are identical, each of which shall be deemed an original, and all of which counterparts, when executed, in the aggregate shall constitute one and the same instrument. 7. Entire Agreement. This instrument contains the entire agreement between the parties relating to parties’ use of the Easement Area. Any oral representations or modifications concerning this instrument shall be of no force or effect, excepting a subsequent modification in writing, signed by the parties. 8. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511, at which time the Easement shall be extinguished. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. ACCEPTED BY: “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation By: Richard L. Davis, Town Manager “Grantor” MCO PROPERTIES INC., a Delaware corporation By: Name: Title: ATTEST: Bevelyn J. Bender, Town Clerk 1374188.2 3 (ACKNOWLEDGMENTS) STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on , 2011, by , as , of MCO PROPERTIES INC., a Delaware corporation, on behalf of the corporation. Notary Public in and for the State of My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me , 2011, by Richard L. Davis, Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: 1374188.2 EXHIBIT A TO NO-BUILD EASEMENT AGREEMENT [Legal Description and Map of the Easement Area] See following pages. 1385789.2 When Recorded Mail To: Town Clerk Town of Fountain Hills 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 PUBLIC UTILITY EASEMENT AGREEMENT GRANTOR: MCO Properties Inc., a Delaware corporation GRANTEE: Town of Fountain Hills, an Arizona municipal corporation (the “Town”) THIS PUBLIC UTILITY EASEMENT AGREEMENT (this “Agreement”) is entered into , 2011, by and between the Town and Grantor for the purposes set forth below. RECITALS A. On February 3, 2011, the Mayor and Council of the Town adopted Resolution No. 2011-04 (the “Resolution”) relating to vacating and abandoning certain rights-of-way and easements and accepting the dedication of substitute easements. B. Grantor is the record owner of certain real property at the location described and depicted on Exhibit A, attached hereto and incorporated herein by this reference (the “Easement Area”). C. The Town and Grantor desire to enter into this Agreement for Grantor to grant to the Town a non-exclusive, continuous and perpetual easement together with the necessary right of access, ingress and egress over the Easement Area (the “Easement”), for purposes of installing, operating, inspecting, maintaining, repairing, replacing or removing aboveground and underground public utility facilities, as more particularly described herein to carry out a portion of the transaction contemplated by the Resolution. D. The Grantor specifically agrees and understands that the Town is not the sole provider of utilities within Fountain Hills and it is an express purpose of this Agreement to allow other utility providers to utilize the Easement Area for their respective facilities. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by reference and the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1385789.2 2 1. Accuracy of Recitals. The parties hereby acknowledge the accuracy of the recitals set forth above. 2. Grant of Easement. Grantor hereby grants and conveys the Easement to the Town for the purposes of installing, operating, inspecting, maintaining, repairing, replacing or removing (i) aboveground and underground public utility facilities including, but not limited to water, sewer, electrical, telecommunications, gas, storm drainage and such other public utility facilities (the “Facilities”), whether such Facilities are installed, operated, inspected, maintained, repaired, replaced, removed or otherwise owned or controlled by the Town or a utility provider other than the Town, as may be permitted by law within such Easement. 3. Maintenance of the Easement. Grantor shall not maintain the Easement Area in a manner that impairs the ability or capacity of the Town or other public utility providers to fully utilize the Easement. Grantor shall not construct, install or place, or permit to be constructed, installed or placed upon the Easement Area any fence, wall, structure or other improvement or obstruction which shall interfere with or impede the Town’s or other public utility providers’ access to the Easement Area or the Town’s right to maintain the Facilities in the Easement. The Town shall allow reasonable, typical landscaping within the Easement Area, including shrubs, groundcover and decomposed granite; provided, however, that a ten-foot clear zone around any sewer manholes or clean-out locations shall be maintained. 4. Indemnification. The Town shall, to the extent permitted by law, indemnify and hold Grantor harmless from any and all damages, costs, expenses, attorney fees, claims or liabilities arising from or relating to the use of the Easement Area by the Town, its successors in interest, assigns, agents, employees, visitors or invitees. 5. No Assignment. The Town shall have no right or authority to assign, in whole or in part, any of its rights or obligations under this Agreement, or any portion of this Agreement to any third party without the prior written consent of Grantor, which consent shall not be unreasonably delayed, conditioned or denied. Grantor specifically agrees and understands that it shall not be deemed an assignment under this Agreement for other utility providers to utilize the Easement for their respective purposes. 6. Liens and Encumbrances. The Town represents and warrants that it will maintain the Easement Area free and clear from any liens or encumbrances of any nature whatsoever in connection with Town’s construction of improvements on the Easement Area or the use by Town of the Easement Area. 7. Running of Benefits and Burdens. All provisions of this Agreement, including the benefits and burdens, run with the land and are binding upon and inure to the assigns and successors and tenants of the parties hereto. 8. Attorneys’ Fees. Either party may enforce this instrument by appropriate legal action and the prevailing party in such litigation may recover as part of its costs in such action reasonable attorneys’ fees and court costs. 1385789.2 3 9. Additional Easements. Nothing contained in this Agreement shall prohibit Grantor from conveying additional easements for access, utility or other purposes through, over, under, upon, in, across and along the Easement Area to the owners of properties which abut the Easement Area or to government or quasi-governmental agencies; provided, however, that no such additional rights or easement shall impair the Town’s use of the Easement herein granted. 10. Entire Agreement. This instrument contains the entire agreement between the parties relating to Town’s use of the Easement for Facility installation, operation and maintenance. Any oral representations or modifications concerning this instrument shall be of no force or effect, excepting a subsequent modification in writing, signed by the parties. 11. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ. REV. STAT. § 38-511 at which time, the Easement shall be extinguished. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. ACCEPTED BY: “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation By: Richard L. Davis, Town Manager “Grantor” MCO PROPERTIES INC., a Delaware corporation By: Name: Title: ATTEST: Bevelyn J. Bender, Town Clerk 1385789.2 4 (ACKNOWLEDGMENTS) STATE OF ) ) ss. COUNTY OF ) This instrument was acknowledged before me on , 2011, by , as , of MCO PROPERTIES INC., a Delaware corporation, on behalf of the corporation. Notary Public in and for the State of My Commission Expires: STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) This instrument was acknowledged before me on , 2011, by Richard L. Davis, Town Manager of the TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation, on behalf of the Town of Fountain Hills. Notary Public in and for the State of Arizona My Commission Expires: 1385789.2 EXHIBIT A TO PUBLIC UTILITY EASEMENT AGREEMENT [Legal Description and Map of Easement Area] See following pages.