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TOWN OF FOUNTAIN HILLS
MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
JUNE 21,2007
CALL TO ORDER—Mayor Nichols called the meeting to order at 5:00 p.m.
ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION
ROLL CALL—Present for roll call were the following members of the Fountain Hills Town Council: Mayor
Nichols, Councilmember Kehe, Councilmember Leger, Vice Mayor McMahan, Councilmember Schlum,
Councilmember Archambault and Councilmember Dickey. Town Attorney Andrew McGuire and Recording
Secretary Janice Baxter were also present.
VOTE TO GO INTO EXECUTIVE SESSION
(i) Pursuant to 38-431.03(A)(1), for discussion or employment, assignment, appointment,promotion, demotion,
dismissal, salaries, disciplining or resignation of a public officer, appointee or employee may demand that the
discussion or consideration occur at a public meeting. The public body shall provide the officer, appointee or
employee with written notice of the executive session as is appropriate but not less than twenty-four hours for
the officer, appointee or employee to determine whether the discussion or consideration should occur at a public
meeting. (Specifically, (a)the Town Manager's 2007 performance evaluation process and(b)for the purpose of
interviewing applicants for the vacancy on the Planning and Zoning Commission.) ; and (ii) 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
Ntiso resolve litigation. (Specifically, a possible license agreement with MCO.)
Vice-Chairman McMahan MOVED to adjourn the Executive Session and Councilmember Kehe SECONDED
the motion,which CARRIED UNANIMOUSLY.
RETURN TO REGULAR SESSION
• CALL TO ORDER AND PLEDGE OF ALEGIANCE
Mayor Nichols called the meeting to order at 6:31 p.m.
• INVOCATION-Pastor Tom Daly,Trinity Lutheran Church
ROLL CALL—Present for roll call were the following members of the Fountain Hills Town Council: Mayor
Nichols, Councilmember Kehe, Councilmember Leger, Vice Mayor McMahan, Councilmember Schlum,
Councilmember Archambault, and Councilmember Dickey. Town Attorney Andrew McGuire, Assistant to the
Town Manager Kate Zanon and Recording Secretary Janice Baxter were also present.
• MAYOR'S REPORT
(i) None.
• SCHEDULED PUBLIC APPEARANCES AND PRESENTATIONS
Low (i) Facilities Maintenance Director Don Thumith addressed the Council relative to the responsibilities of
the Facilities Maintenance division for the Town of Fountain Hills. He outlined their Mission Statement,
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i
which is to maintain all Town facilities in a manner that provided a safe, healthy, and secure
environment for staff and the visiting public. Mr. Thumith explained that Facility Operations covered a
wide variety of maintenance and events that applied to facilities.Responsibilities included preparing and
administering the annual budget for the division,preparing, implementing, and project managing capital
improvement projects related to Town facilities, preparing and reviewing Town property leases,
assisting other department staff members that are managing projects affecting other Town properties,
implementing ADA requirements (Americans with Disabilities Act), and reviewing and upgrading
policies associated with ADA issues. Discussion ensued relative to managing the Town fleet's fueling
station, conducting auctions for Town surplus equipment and property, managing Town facility waste
collection, working in partnership with the Town Clerk in managing the Arizona Records Reduction
Act, and assuring proper record keeping and scheduling of commercial shredding.
Mr. Thumith provided a list of the Town-owned buildings such as the Town Hall, Community Center,
Library, Museum, physical plant, as well as the Kiwanis building, a leased facility, as well as the
Community Theater buildings 1 & 2, both leased facilities, and Fire Stations 1 & 2, totaling 116,000
square feet of ownership and maintenance responsibilities. Additional discussion ensued relative to the
divisions areas of responsibility.
Mr.Thumith introduced staff present at the meeting and thanked Mayor Nichols and the members of the
Council for their ongoing support. He indicated his willingness to respond to questions.
Mayor Nichols thanked Mr. Thumith for his informative presentation and the excellent job he and his
staff performed on a daily basis.
• CALL TO THE PUBLIC
There were no citizens wishing to address the Council at this time.
CONSENT AGENDA
AGENDA ITEM #1 - CONSIDERATION OF APPROVING THE TOWN COUNTIL MEETING
MINUTES OF JUNE 7(SPECIAL& REGULAR),2007.
AGENDA ITEM #2 - CONSIDERATION OF APPROVING THE CANCELLATION OF THE
FOUNTAIN HILLS' TOWN COUNCIL MEETINGS SCHEDULED FOR JULY 5, 10,AND 19,2007.
AGENDA ITEM #3 — CONSIDERATION OF APPROVING RESOLUTION 2007-31, AN
AMENDMENT TO THE FISCAL YEAR 06-07 INTERGOVERNMENTAL AGREEMENTWITH
MARICOPA COUNTY TO PROVIDE SPECIAL TRANSPORTATION SERVICES (STS) IN AN
AMOUNT NOT-TO-EXCEED$90,380.79.
AGENDA ITEM #4 — CONSIDERATION OF APPROVING AN AMENDMENT TO THE
ENGINEERING CONTRACT IN THE AMOUNT OF $335,411.80 WITH ENTELLUS, INC. FOR
DESIGN OF A CLIMBING LANE ALONG SHEA BOULEVARD BETWEEN FOUNTAIN HILLS
BOULEVARD AND PALISADES BOULEVARD.
AGENDA ITEM #5 — CONSIDERATION OF APPROVING RESOLUTION 2007-28, AN
INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND THE
FORT MCDOWELL YAVAPAI NATION FOR REINBURSEMENT OF A PORTION OF THE
CANDIDATE ASSESSMENT REPORT(CAR)IN AN AMOUNT NOT TO EXCEED$37,500.
AGENDA ITEM #6 — CONSIDERATION OF APPROVING RESOLUTION 2007-34, ABANDONING
WHATIVER TITLE, RIGHT, OR INTEREST THE TOWN HAS IN THE CERTAIN NO BUILD
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EASEMENT (NBE) LOCATED AT THE SOUTHWESTERLY PROPERTY LINE OF EAGLES NEST
LOT 151 (16308 N. BERREGO TRAIL) AS RECORDED IN BOOK 742 OF MAPS, PAGE 13
Le RECORDS OF MARICOPA COUNTY,ARIZONA.EA07-10(EN LLC).
AGENDA ITEM #7 - CONSIDERATION OF APPROVING RESOLUTION 2007-35, ABANDONING
WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN THE EXISTING DRAINAGE
EASEMENT IN LOT 117 OF EAGLES NEST PARCEL 10.EA07-13(EN LLC).
AGENDA ITEM #8 - CONSIDERATION OF APPROVING THE CONTRACT RENEWAL WITH
BUSE PRINTING AND ADVERTISING FOR PRINTING SERVICES OF THE COMPASS AND IN
THE LOOP PUBLICATIONS FOR FISCAL YEAR 07/08.
AGENDA ITEM #9 - CONSIDERATION OF APPROVING AN AMENDMENT TO THE
ENGINEERING CONTRACT IN THE AMOUNT OF $10,800 WITH CK GROUP, INC. FOR
SERVICES DURING CONSTRUCTION OF THE TRAFFIC SIGNAL AT PALISADES BOULEVARD
AND SUNRIDGE DRIVE INTERSECTION.
AGENDA ITEM #10 - CONSIDERATION OF APPROVING A CONTRACT WITH IMAGE
WEAVERS, IN THE AMOUNT OF $45,500, FOR THE REVENUE SHORTFALL EDUCATION
PROGRAM AND THE STRATEGIC PLANNING ADVISORY COMMISSION UPDATES.
AGENDA ITEM #11 - CONSIDERATION OF APPROVING THE RENEWAL OF THE ANNUAL
NICHOLS AND SONS LANDSCAPE MAINTENANCE CONTRACT FOR FISCAL YEAR 2007-2008
IN THE AMOUNT OF$269,370.00.
AGENDA ITEM #12 - CONSIDERATION OF APPROVING THE RENEWAL OF THE ANNUAL
LANDSCAPING CONTRACT WITH MARIPOSA HORTICULTURAL ENTERPRISES, INC. FOR
FISCAL YEAR 2007-2008 IN THE AMOUNT OF$298,891.92.
AGENDA ITEM #13 - CONSIDERATION OF APPROVING A WAIVER OF CHAPTER 6 OF THE
ZONING ORDINANCE, SIGN REGULATION, FOR THE CIRCLE OF PEACE FUNDRAISER
EVENT.
Councilmember Leger MOVED to approve the consent agenda items as listed and Councilmember Schlum
SECONDED the motion.
A roll call vote was taken with the following results:
Councilmember Dickey Aye
Mayor Nichols Aye
Councilmember Leger Aye
Councilmember Schlum Aye
Councilmember Kehe Aye
Vice Mayor McMahan Aye
Councilmember Archambault Aye
The motion CARRIED UNANIMOUSLY(7-0)
REGULAR AGENDA
AGENDA ITEM #14 - CONSIDERATION OF APPOINTING ONE CITIZEN TO THE PLANNING
AND ZONING COMMISSION TO FILL THE VACANCY CREATED BY A RESIGNING MEMBER.
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Mayor Nichols MOVED to appoint Cecil A. Yates to the Planning and Zoning Commission and
Councilmember McMahan SECONDED the motion,which CARRIED UNANIMOUSLY(7-0).
Mayor Nichols requested that Mr. Yates stand and be recognized by the members of the audience.
AGENDA ITEM #15 — DISCUSSION WITH POSSIBLE DIRECTION TO STAFF REGARDING
ACCESS TO THE MCDOWELL MOUNTAIN PRESERVE.
Parks and Recreation Director Mark Mayer addressed the Council relative to this agenda item and discussed
staff and the Council's extensive efforts to provide the public with immediate access to the Preserve. Mr.Mayer
stated that this ongoing effort has lasted over seven months and that both he and the Council had reviewed six
different possibilities and eliminated four of those options at previous meetings. Mr. Mayer explained that this
evening they would discuss two more options and said that it was his understanding that there were recent
developments and so he would turn the meeting back over to the Council for their input.
Councilmember Kehe stated that before he made a motion, he would like to read a letter into the record, an
email from Jeremy Hall, President of MCO to Edwin Kehe with carbon copies to Sean Herowitz, the Chief
Executive to the parent company, Maxum, and Paul Gilbert, the attorney for MCO. This email was dated
Thursday, July 21st at 4:17 p.m. The email read as follows: "Ed, neither Paul Gilbert nor I can attend tonight's
meeting. You can use the following statement from me to support your motion. MCO would like to clear the
record that we have not made Town Council's support of a bond financing a condition of granting expanded
trail access through Adero Canyon. We have made it a condition that the Town Council agrees to only consider
an application for a bond financing fairly and objectively without prejudging the merits before a full
understanding of the facts has been considered. In short, we only wanted Council to agree to be impartial and
work with MCO in good faith. It is apparent that Council may be inclined to defeat this issue entirely if it meant
including such language deemed objectionable in an agreement. Therefore, as a gesture of goodwill, MCO will
agree to strike this language from the agreement in its entirety and allow the public access for the terms of the
outline submitted to the Council on June 2007 without the CFD language."
Councilmember Kehe MOVED to direct Town Attorney Andrew McGuire to meet with the attorney
representing MCO to draft a license agreement between the two parties including an insurance provision,
pertaining to the use of the alternate Eagle Ridge route for temporary general access to the Fountain Hills
Preserve.
Councilmember McMahan SECONDED the motion.
Mr. Roy Kinsey, 17120 E. Fairway, addressed the members of the Council as a representative of the Sonoran
Conservancy. He recognized the Council for prioritizing the need to find an alternate route to the Fountain Hills
McDowell Mountain Preserve. In pursuit of this goal, he noted that Council and staff have conducted many
different studies in search of such a route, the last one being consideration of accepting the MCO offer to allow
a trail to be built over their land in the Preserve. Mr. Kinsey explained that his remarks were based on his
attendance at all of the joint meetings scheduled among the members of the Town Council and staff,
representatives from MCO and the Sonoran Conservancy. Mr. Kinsey noted that that this group of people
deserved recognition for the amount of hours spent and, more importantly, their ability to work together to
resolve specific issues that opening this route would entail. He further noted that the total cooperation and
sharing that took place ended in a successful and positive result. Specific topics resolved included trail location,
trail head and parking, surveying the property, trail fencing, trail construction and specifications, liability and
insurance issues,installation of active water lines and hydrants,and finally, a defined license agreement between
the Town and MCO Properties to build a trail. He further explained that the Town agreed to pay for the survey
and the water hydrants and fencing. MCO, in addition to giving up the land, agreed to accept the terms for
liability insurance, assisted in the layout for the specific route for the trail and showed a willingness to allow this
trail to remain until the very last moment when the construction of the permanent roadway would begin.
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Mr. Kinsey stated the opinion that this was certainly the answer that the Council had been looking for since
January, to provide a quest of temporary access to the Preserve. He thanked the Council on behalf of the
Conservancy and the citizens of Fountain Hills.
Grace Jakubs, 16440 N. Aspen Drive, addressed the Council representing herself and her husband and thanked
the Council for the support they had given towards securing access to the McDowell Mountain Preserve. Ms.
Jakubs also asked the Council to please pass the motion that had been made and seconded. She stated that most
people would agree that we live in a world that has gone mad by opposing factions that are unable to negotiate
agreements. She went on to say that we witness unsatisfactory results in negotiations breaking down on the
international, the national, and regional levels and that we look at our newspapers, watch television, and see city
Councils near us that are unable to act because they are unable to reach agreements. Ms.Jakubs commented that
Fountain Hills had been luckier than many local governmental bodies, demonstrating that they stand above all
others. She commended the Council on their ability to give attention to reasonable consideration of proposals
brought before them, on their ability to listen to diverse views, and weighing many factors and negotiating
agreements on tough issues. She further stated that the Council's diligence benefited everyone. Ms. Jakubs
reminded the Council of their opportunity to pass a motion and to take another significant step for the Town.
Ms.Jakubs provided brief history relative to the Preserve and encouraged the Council to pass the motion.
Mayor Nichols thanked the speakers for their input.
Town Attorney Andrew McGuire clarified that they were not moving towards 24/7 access, they were looking
for access that would pair up with the park's hours.
The motion CARRIED UNANIMOUSLY(7-0).
Mr. Nichols noted that it would now be up to the attorneys to come up with the language on the license
agreement.
AGENDA ITEM #16 - CONSIDERATION OF RESOLUTION 2007-37 LEVYING UPON THE
ASSESSED VALUATION OF PROPERTY WITHIN THE TOWN OF FOUNTAIN HILLS, SUBJECT
TO TAXATION A CERTAIN SUM UPON EACH ONE HUNDRED DOLLARS ($100.00) OF
VALUATION SUFFICIENT TO RAISE THE AMOUNTS ESTIMATED TO BE REOUIRED IN THE
ANNUAL BUDGET. SPECIFICALLY BONDED INDEBTNESS, FOR THE PURPOSE OF PAYING
PRINCIPAL AND INTEREST UPON BONDED INDEBTNESS; ALL FOR THE FISCAL YEAR
ENDING JUNE 30,2008.
Finance Director Julie Ghetti addressed the Council relative to this agenda item and said that since 1991, the
Town has issued four bond issues, the most significant to purchase the Preserve. She explained that those
payments are made through an ad valorem property tax and the annual payments for a Fiscal Year 07-08 is
about $1.3, which with the Town's assessed valuation equates to a tax of about .21 (twenty one cents). She
further stated that this resolution would authorize Maricopa County to levy that tax on all property owners in the
Town of Fountain Hills.
Councilmember Schlum MOVED to approve resolution 2007-37 and Councilmember Kehe SECONDED the
motion.
There were no citizens wishing to speak on this item.
The motion CARRIED UNANIMOUSLY(7-0).
AGENDA ITEM #17 - CONSIDERATION OF APPROVING AN AMENDMENT TO THE
Ilbe CONSTRUCTION MANAGER AT RISK AGREEMENT WITH VALLEY RAIN CONSTRUCTION
CORPORATION ESTABLISHING THE GUARANTEED MAXIMUM PRICE (GMP) IN AN
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AMOUNT NOT TO EXCEED $1,264,974.10 FOR CONSTRUCTION OF FOUNTAIN PARK
IMPROVEMENTS.
Recreation Supervisor Bryan Hughes addressed the Council relative to this agenda item and said that the item
before them was an important step in the ongoing improvements to Fountain Park. These improvements include
a sidewalk along the western edge of the lake, disc golf tee pads, and landscaping around the Splash Park. He
added that the most important of these improvements is the irrigation system that will be installed throughout
the entire park. He deferred to Mr.McGuire to talk about the Construction Manager at Risk process.
Mr. McGuire said that he was expecting the Council to ask why they were amending the contract that was
passed a week ago. He explained that typically, the two documents they that made up the Construction Manager
at Risk contract were usually separated by quite a bit more time than they currently have and said that because
of the Council's schedule over the summer and the need to get this project underway, staff compressed the
second one in. The way this document was built was intended to make sure that they never had the problem of
getting to the guaranteed maximum price discussions with a contractor who was then surprised at the extent of
the agreement. The Construction Manager at Risk agreement is about sixty pages long and very detailed. It
contained a great deal of very Town-friendly provisions that were pointed out to all of the construction
companies that applied and the goal was to make sure that they were familiar with those provisions up front
before they even threw their hat in the ring.
Mr. McGuire provided the Council with additional information relative to the Construction Manager at Risk
process and said that the goal was to ensure that the price of the project remained the same. He noted that the
project was a fairly short one so it was likely that there would not be any changes in construction material prices
and/or other unforeseen issues but added that, just in case, the agreement contained a provision relative to
amending the contract and handling change orders.
Mr. Hughes thanked Mr. McGuire for his overview and said that fortunately they were working with a
contractor who was very familiar with the Construction Manager at Risk process, had been very open regarding
how the process works and had helped move the negotiations on the price along very quickly,because they were
aware of the timelines that had to be met. He noted that the amendment this evening was to establish a
Guaranteed Maximum Price(GMP) which was $1,364,974.00. That, along with the almost$30,000.00 that was
approved two weeks ago, would bring the total contract amount to $1,394,379.00. Staff did anticipate doing
much of work including the preconstruction during the Fiscal Year, so they were anticipating spending
approximately $100,000.00, which was roughly 5% to 7% of the total contract and then the remainder of the
work would be completed in the next Fiscal Year with a budget amount of$1,358,579.00, that was included in
the budget the Council approved two weeks ago. He stressed that it was important to know that it was a GMP;
the final cost could actually be less if everything went well and there were contingencies that might not be spent.
He added that they might find that as they were doing the layout of the irrigation system, there might be less
heads or valves required so there were a number of ways they could potentially save even more money. Staff
was optimistic that with their consultants on board for irrigation and the contractor that they had, that that was
very real possibility.
Mr. Hughes also discussed the construction schedule and referred to a map showing what Valley Rain was
hoping to do. He noted that work would start on the southeast side of the park. The irrigation would be done in
three phases and the park would be closed off in that section. Each phase would take thirty days so they would
start there and work their way around and finish up with the irrigation. While they were doing the first phase,
simultaneously they would be pouring the sidewalk that would go along the lakeshore and connect up with the
performance pad near the Kiwanis Ramada and Splash Park so much would be happening over the summer. He
added that fortunately it was the best time of year to be doing this;the park use was probably the slowest that it
would be throughout the year, no major events were scheduled and so they did not anticipate any delays. Staff
hoped that it would move forward and be completed in time for fall over-seeding. Mr. Hughes stated that staff
recommended approval of the amendment.
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Councilmember Schlum MOVED to approve the amendment to the Construction Manager at Risk Agreement
with Valley Rain Construction and Councilmember Leger SECONDED the motion.
In response to a question from Councilmember Schlum, Mr. Hughes advised that staff was still working out
details and would try to utilize the existing irrigation system to keep what was not under construction watered
and the grass as green as possible. He added that depending on how the new pumps, etc. hooked up, they were
going to look at using the new system as they finished a phase. He said it was possible that they could be
watering with the new system as soon as they finished and moved on to each section. If they were not able to
use the existing system and pumps throughout the process, they might see a phase not getting watered as much
as they would like. They might energize the whole system at once at the end but they were looking at keeping it
green as much as possible.
Councilmember Schlum asked whether much new seed would be planted and Mr. Hughes advised that as they
moved forward, Don Clark was going to be following behind or working with the contractor to address some of
the areas that were not included in his construction such as bare spots and they might be able to put down some
seed. The overall goal of the project for October is to over seed right away so there will be green grass for the
winter months,which will help and then staff will address the Bermuda grass when spring arrived.
Councilmember Schlum asked whether the donated trees in the area will be affected and Mr. Hughes said that
they would not be affected anymore than usual. They were going to keep water on anything that had been
donated.He believed that there were some trees that Don Clark was going to replace that had not done so well in
the past few months but they would be looking at that as they moved forward.
Mayor Nichols stated that one of the things that they had learned over the last several years was that one of the
problems with the grass had to do with the fact that the soil washed away and was not so good in some areas.He
asked whether staff was planning to have them bring new soil in so there would be a good foundation for any
Le new seeding that was done.
Mr. Hughes responded that the contract did not include the importing of soil but added that Don Clark would be
working as he moved through each section of the park while performing some aeration. With the new irrigation
system, liquid fertilizer would be injected directly into the irrigation system and Mr. Hughes believed that this
would help out quite a bit. He noted that they would be addressing some of the bare spots and if necessary
bringing in soil.
Mayor Nichols asked whether staff had coordinated with the Sanitary District as far as their plans for the new
well that they were going to put in the park as far as not impacting plans to put the irrigation system in and Mr.
Hughes stated that Mark Mayer just brought that to their attention this morning--that they had the ability to get
in there right away and drill the well that was discussed a few weeks ago and approved. He stated the opinion
that that would not interfere with what they had going on at this time. They would be in the same section of the
park but there was enough trenching and things going on that they would be able to avoid them until they were
gone.
In response to a question from the Mayor,Mr. Hughes said that one of the things his department wanted to do in
the future was to coordinate better with the Sanitary District and their equipment. Obviously, once they got the
new irrigation system in and the turf established, the Town wanted to take care of it. That might mean limiting
the amount of vehicles that drove on the turf for special events, sanitary maintenance, etc., so they were
definitely going to be working closely with the Sanitary District or event coordinators to make sure that nothing
happened to the new,costly system.
Mayor Nichols commented that this afternoon they talked a little bit about the fact that there were some old
benches located in the park that did not have the appropriate coating to minimize heat. He asked what the plans
were for those benches.
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a
Mr. Hughes responded that the contract called for a new sidewalk that would go along the lakeside and one of
the things that staff looked at was moving some of those benches closer to the new sidewalk or leaving them as
is and replacing them with new benches. They had a few different options and staff will talk with Don Clark
regarding this issue. They definitely had money in the budget to install some new benches in the areas that
needed them so they could ensure that no one got burned from the older benches in the park.
Vice Mayor McMahan asked whether there were plans to put grass between the Splash Park and Plaza
Fountainside where there is currently gravel.
Mr. Hughes replied that there would be a combination of granite and turf. They do intend to put some turf back
in there and the new design called for a combination of turf and shrubs to beautify that area more.
Vice Mayor McMahan thanked Mr.Hughes for his input.
Councilmember Archambault said that Mr. Hughes did not discuss the Frisbee/golf platforms and asked whether
he was going to touch on that.
Mr. Hughes stated that that was probably one of the smaller parts of the project but added that it was definitely
important to the disc golfers, a pretty big group out there. He said this would be a welcomed improvement.
There would be eighteen concrete disc golf tee pads, 12 ft. in diameter, which sounded big but when placed in a
64-acre park, they were not going to be very noticeable. He added that this would definitely be a welcome
addition to that disc golf course.
Councilmember Archambault said that all of the residents wanted to know whether they were going to have a
nice,lush,green park again after we spend all this money and asked Mr. Hughes to comment on this.
Mr.Hughes confirmed that the end result would meet the residents' expectations.
Nerd
The motion CARRIED UNANIMOUSLY(7-0).
AGENDA ITEM # 18 — 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, LLC, DATED
JUNE 21.2007.
Kate Zanon addressed the Council relative to this issue. She noted that at the June 7th meeting there was a letter
presented to the Council from Goldfield Preserve Development LLC asking for the Council to consent to the
formation of the Goldfield Preserve Domestic Water Improvement District. At that meeting, Council continued
the item asking for some additional information. Included in the Council's packets was information given to
staff by the applicant showing the history of communication with Fort McDowell Yavapai Nation, as well as a
letter from ADWR showing that there was an assured one hundred year water supply. She pointed out that the
letter that was produced on June 21st and included a provision that said that this Water District would not
provide service to the Fountain Hills area. She wanted to note that that exclusion was contained in the letter.
Lee Storey,the applicant in this case and an attorney,addressed the Council and provided additional information
relative to this issue. She noted that this was her first opportunity to come before the Council and thanked them
for this opportunity. She advised that her firm worked with the Town in the past and added that she was the
water attorney at the firm and had spent about twenty years working on water adjudication, negotiations with
Indian tribes, and had also represented municipal clients as well as developers.The formation of the DWID was
really the issue here. She stated that there was a unique provision in the DWID statute and had the Preserve at
Goldfield Ranch come forward as the Goldfield Ranch, one single parcel, she wouldn't be here today but it had
been sold in the past so now there were five acquired by the Ellman Companies. Only those five parcels were
06-21-07 minutes.doc Page 8 of 15
seeking to form a Domestic Water Improvement District for both water and waste water services. She added that
because the Town was within six miles of the Goldfield Preserve, one of the provisions in the statute asked for
consent from the neighboring municipality and that was why she was there this evening.
Ms. Storey said that she was pleased to say that she believed they had submitted all of the information requested
by the Council and indicated her willingness to respond to questions from the Council. She added that they
appreciated the opportunity to work with the Council on the formation of the DWID and further stated that she
would like to confirm for the record that no intention existed to serve within the Town either water or waste
water services and they had crafted the letter to address that issue. She added that it would also not apply to the
property that had been recently acquired. She informed the Council that they were able to confirm that with the
Chaparral City Water Company and the Sanitary District prior to this meeting.
Councilmember Dickey said she would like to know whether there were any citizens present wishing to speak
on this item. She added that she intended to ask that this item be tabled so procedurally she could find out how
to proceed.
Town Attorney Andrew McGuire stated that if the desire was to hear people speak, then the motion should be
withheld until after all the presentations had been made because after the motion was made, then the discussion
was only with respect to table it.
Bruce Hansen, President of the Board of the Sanitary District, 15716 E. Sunburst Drive, addressed the Council
regarding this issue. He advised that the Board had some concerns about this motion over the last two weeks
and experienced a great deal of difficulty gathering information on this issue. He noted that in order to form
this Special District, a petition must go before the County Board of Supervisors. He stated the opinion that no
one had seen such a petition and therefore they did not know what this District was right now. He added that if
they voted to approve it,he would question what they were really approving. He said that he had a conversation
with the attorneys for the Ellman Companies and they did not want to expand this. He added, however, that if
they formed a Special District; it could be expanded and it did not have to be contiguous property. He advised
that their fear was that since Ellman owned what was formerly State land, would they want to expand this and
do this?He said that a Special District was a"real funny animal;"they had taxing authority and they could issue
bonds so they had concerns about this. He informed the Council that they did not have a problem with the
Goldfield project if it was limited to the Goldfield project but added that he did not believe that a letter from the
Town Manager saying"we understand that this will be limited to this"was sufficient. He expressed the opinion
that the Council needed to make a motion or approve a resolution to limit this to the Goldfield property and said
that without such action taking place, they did not believe they had what they would really like to have. He
stated that they did not want to see somebody come in the back door to what were the State lands to provide,
particularly, sanitary services —that was what we're interested in. They would really like to see the Town staff
consult with the Sanitary District and the water company when these issues come up. So far there had been no
communication between them and this would be an important step. He reiterated that they did not have a
problem if it was limited to Goldfield Ranch but stressed that it needed to be more than just a comment in a
letter. He thanked the Council for the opportunity to address them.
Ms. Storey readdressed the Council and stated that time really was of the essence with this process. She added
that a petition was filed with the County on May 16th. The staff met and they were moving forward with the
entitlement process and dealing with the Water Improvement District. They had to get the DWID approved in
order to get the MAG 208 sponsored by the County and there was a short deadline for that.The DWID also had
to be approved to get their service area right to finish up the entitlement process on the Certificate of Assured
Water Supply that would come shortly thereafter. She added that they could state on the record, if the letter
needed to be conditioned with respect to the Town's approval, that they would not serve anywhere outside the
Goldfield Preserve and that consent was given with that expressed understanding. She said that they would be
happy to accept that condition. She said that the other point she would like to make was that the provisions that
Visor were being referred to about serving within and outside the District deal with the construction of facilities to
deal with easements. For example, if you needed to have a well outside the property or District area and you
06-21-07 minutes.doc Page 9 of 15
needed to connect it, the District did have the authority to do that. If the District were to "hop" over to the
Reservation and seek to expand its boundaries, it would have to come back to the Town and get consent to do
that. That was required by the same statute that governed why they were here this evening. They would still
have to seek the Town's approval to do that. Ms. Storey said that if the Council was going to cause any sort of
delay, she would ask that they be specific on what additional information they could provide.
Councilmember Archambault asked Ms. Storey to explain MAG 208.
Ms. Wendy Riddell with the law firm of Berry and Dumore addressed the Council and stated that part of the
process for obtaining approval for their Master Plan through Maricopa County was to obtain approval for their
water and waste water services. She noted that that required a vote by the MAG Regional Council, what they
called a "MAG Amendment, 208 Amendment," showing that the Council authorized them to have this kind of
sewer system. In order to do that, they must have the legal entity form to make the necessary arrangements for
that to happen. So we had been working with the County very closely, they had filed the request for the DWID
to form that legal entity to make our application to the regional Council. She said that her understanding was
that the Town of Fountain Hills had a voice on that Council as well.
Councilmember Dickey stated that she agreed that in order for them to "jump or leapfrog", they would have to
come back before the Town Council. She explained that she was not that concerned about the order of their
petition, because she knew that there was a lot of paperwork involved. She continued to say that one of those
things that they needed in order to "get their ducks in a row" was the consent. She added that her question was
how the Town's consent played with the acceptance when they went to the County. Councilmember Dickey
stated that because she had information that led her to believe that perhaps this DWID, without actually having
residents, was something she never made a connection between the funding of the infrastructure and the creation
of the DWID. That was why she was not prepared to vote today because that was something different. She
thought we were just saying"okay,there's going to be this governmental entity,"and it made it seem like it was
almost just a formality but now she realized that there were other ramifications and she needed to understand
where in that process it said what we're allowing to happen to those future tax payers or residents.
Ms. Riddell stated that the future taxpayers were those who acquire property within the Goldfield Preserve.The
DWID only applies to those lands and the developer intends to build all the infrastructure and there would be an
arrangement, probably with some reimbursable fees associated with it, as would any DWID or any entity like
that. Part of the petition process was an acknowledgement as the owners of that property that they would be
subject to the DWID. What happened was when residents acquire the property was then entitled to be on the
board of the DWID and eventually it was the residents that run the DWID. It's non-profit, so usually DWID's
end up being much better for customers in the long run than sometimes private water companies are, present
water company excluded, of course. A water company could be an option. If they had formed a water company
out there we would have no need to be here but it would take a long process to do that and, from our
understanding, the Arizona Corporation Commission was not excited about new water companies being formed
in the County and other places in the State. She stated that she had formed many DWIDs throughout the State
and other Counties.The process was very detailed and we are going through that with the County but with some
of the DWIDs that had been formed for very large development projects and some the size of Goldfield,usually
the economics worked out extremely well for a project this size.
Councilmember Dickey stated that her problem was that there was a lot of information that she felt she did not
have and wished she knew more and had more information about the whole history of DWIDs. She also
questioned why the Town's consent was needed because it was obvious if you needed it,there was a reason.
Ms. Riddell said that she would like to respond to Councilmember Dickey's comments. She advised that there
was a unique provision in the Statute that was modified in 1997 to address this specific issue and the champion
of that modification was a consent provision that the towns and cities had all consented to it but it was initiated
in a way to deal with City of Tucson and their issues dealing with the Metropolitan Water District because the
city was apparently in negotiations with a large developer down there and they were having difficult
06-21-07 minutes.doc Page 10 of 15
negotiations so the developer then went over to the Municipal Water District and said "we'll pay you x and why
Loydon't you be our water provider instead of the city." That kind of"puddle jumping" was not acceptable and so
the Statute was rightly corrected to avoid that kind of thing and ensure that jurisdictional issues would be
respected and municipal service areas would be respected and that is how all that came about. In this instance
what was interesting was that the Town was not a water provider but you had an interest and we respected that
interest and that was why we were here. It was part of the process.
Councilmember Kehe asked whether Ms.Riddell was familiar with a Letter of Purpose.
Ms. Storey stated that a Letter of Purpose had been filed with the petition, with the County. Their entire
package of materials included a Statement of Purpose for the Domestic Water Improvement District, the map
that showed the specific parcels, an acknowledgement of the Board members who were elected members and
also who would be appointed by the County but also have an interest in the property and it was part of that entire
package and submitted to the County on May 16`s.
Councilmember Kehe expressed the opinion that it might be helpful for the applicant to provide a copy of the
Letter of Purpose to Town staff. He asked whether the previously discussed petition that went before the Board
of Supervisors was returned or rejected.
Ms. Story advised that it was going through the process right now. They actually had a staff meeting on Tuesday
of this week to look at the formation documents that were submitted and to address any concerns that the county
might have. A meeting had been scheduled for the 27th to continue discussions.
Councilmember Kehe noted that the process had not been completed.
Ms. Story said that they would not expect it to be completed until they had a Letter of Consent from the Town.
Loy
Councilmember Kehe asked whether they had obtained a Letter of Consent from the Fort McDowell/ Yavapai
Nation(the same type of consent they were asking the Town to give).
Ms. Storey stated that the statute only required the consent of the Town or municipality within six miles of the
DWID and that was for the water, which was what they were here for. She added that with respect to the Fort
McDowell Indian Community, Councilmember Kehe might be referring to the MAG 208 process, not the
DWID. That consent was required but it was through the approval process of modifying a waste water facility
or allowing its small plant on site. That had been requested and was also going through the process. That was a
different process and a different use.
Councilmember Kehe asked whether it required consent and Ms. Storey replied that consent was not required
for the DWID
Councilmember Kehe requested that they hear from Mr. Hanford with Chaparral Water Company. Mr. Hanford
said that he was present to serve as a resource or to answer any questions. He added that Chaparral really did
not have any comments on the matter at this time.
Councilmember Kehe stated that he did not possess the expertise to raise a whole lot of questions in this specific
field but added that perhaps someone else did. He asked whether they were asked to approve the proposal as an
entity.
Mr. Hanford replied that it was his understanding, reading the Statutes that their approval was not required but
they were consulted. Councilmember Kehe asked whether they were satisfied that this opportunity for
Lieconsultation met their needs in terms of the information they needed to have.
Mr. Hanford replied that Chaparral was satisfied and added that at the request of the Council in early 2005, they
were asked for their intent to serve the State Trust lands and that was the reason Chaparral spent a considerable
06-21-07 minutes.doc Page 11 of 15
amount of time and effort going through the preliminary process. He added, however, that there was an
expiration date in October of next year.
Councilmember Kehe asked whether that agreement was renewable and Mr. Hanford advised that it was but he
could not speak for the Chaparral Commissioners or the Commission staff. He added that unless considerable
progress had been made, they usually did not accept extensions. They just wanted you to come in and do a
regular CC&N application at the time you were ready.
Mayor Nichols commented that the Council received a letter from the Sanitary District yesterday. In that letter
from Chairman Hansen, reference was made to the fact that they had not seen the petition Goldfield Preserve
development filed with Maricopa County. Mayor Nichols asked Mr. Hanford if he would like to see the petition
as well. Mr. Hanford responded that that was not necessary, it was strictly between the County and the
applicant. If a copy was made available,they would keep it on file.
In response to a question from the Mayor,Mr. Hansen said that he would like to obtain a copy of the petition.
Ms. Riddell informed the Mayor that a copy of the petition was just provided to the Town Attorney along with
copies of the other materials that were submitted. She added that they could provide copies to the Sanitary
District and anyone else they would like to have the information.
Mayor Nichols advised Mr.Hansen that he would be provided a copy.
Councilmember Dickey raised a question relative to timing. She stated that since things were pretty much lined
up. She stated she would like to get the information that had to do with what is the Town's tie-in with the
County would be, including their request to the County. She added that she just wished she knew more right
now than she did and the possible ramifications to the Town if Council gave their consent since they did not
know what the County did with that consent and where it could go was unsettling to say the least.
Councilmember Dickey stated that she would like to table the item, maybe not until August 2nd but until more
information could be relayed to the members of the Council before giving consent to sign. She stated that she
would be willing to come back and vote even if that was the only agenda item. Councilmember Dickey asked if
the Council signed the agreement on August 2'd and they were still in the midst of the process, what that would
do to them.
Ms. Storey advised that the MAG 208 filing was due today and the County could not form the district without
the formation of the DWID.With respect to what was actually in the petition and what would be required,it was
pretty straightforward.Ms. Storey explained it was an acceptance by the landowners that they were willing to be
assessed for these improvements at some point in the future for water infrastructure and wastewater
infrastructure. If the Town was to provide its consent today with conditions, and we were not going to serve in
the Town, and if the County for some reason did not approve the DWID,the DWID just was not formed. It was
a recognition and it was a respect by the County to say to a municipality within that jurisdictional location if
they had an issue with water service or wastewater service and the Town wanted to serve in that area, then you
should have the entitlement to do that or the right to negotiate to service. That was really the essence of the
consent requirement and that was all that was being sought. The Town was not responsible for the DWID or
how it functioned-that would be the responsibility of the publicly elected Board that served that development.
Mr. McGuire stated there were two options. They could either gain your approval by motion tonight
conditioned in as many number of ways as the Council wanted and they could make sure the letter adhered to
those conditions and spelled out the desires of the Council including the representations tonight made by the
representatives. The other way was to delay the approval, put it into a formal resolution. He added that he did
not want the Council to formalize an approval if they could accomplish it by a letter.
Councilmember Leger thanked the applicant for being there and answering their questions. He said that it had ''44111)
been brought to his attention that if they had had the petition and an opportunity to review the petition, perhaps
06-21-07 minutes.doc Page 12 of 15
they would have been able to put their concerns to rest. He added that he had not seen the petition and was not
familiar with the process; therefore he would like to ask some additional questions about the petition. He asked
whether the petition specified the boundaries of the DWID to be established. Ms. Storey responded that it did.
Councilmember Leger then asked whether establishing the boundaries in the petition would take care of the
question about the Town's annexed property. Ms. Storey expressed her opinion that it would and added that if
the DWID were someday to seek to serve the property within the Town, as indicated earlier,they would have to
come before this body and obtain consent but she was happy to state on the record that that was not the intent of
the DWID. Their intent was only to serve the property on the other side of the river, on the other side of the
Reservation; it was not intended to serve within the Town boundaries.
In response to a question from Councilmember Leger, Ms. Storey advised that the attachment that was at the
back of the petition showed five parcels, clearly identified on the map and there was also a legal description
attached to the petition specifically identifying these five parcels. All of the parcels would be for water and
sewer but it was only Parcels A and B that would have the small waste water treatment plant and the other three
parcels would be served by a septic.
Councilmember Leger asked if anything else in the petition legally defined the boundaries of the DWID.
Ms. Storey responded in the affirmative and noted that there was a legal description of the property, which was
included in the District and it was specific to those five parcels on the Goldfield Preserve.There was also a map
of the District which reflected the same parcels. She added that there was also a description of the proposed
water facilities that were on those parcels at the Goldfield Preserve. There was also a description of the
proposed wastewater facilities that would be developed on those parcels in the Goldfield Preserve. She
confirmed that that would be a facility and advised that there was also what was called a verification of the
petition, which was required by the statute and in that document; the owners of the property verified that these
documents are correct. In addition, there was proof that the property was owned by the petitioners and that was
the title policy, which was included as well. There was a map of the location of the property from the Beeline to
the Fort McDowell Indian Reservation that was referred to earlier.
Councilmember Leger posed a `theoretical' question, probably a `naive question' but wanted to ask it because
someone has asked him. Given the fact that you had a design for specific facilities like water and sanitary, was
there any possible way from an engineering point of view that those facilities could service the state trust land.
Discussion ensued relative to the fact that there was no possibility that the facilities could service the State Trust
Land since they would have to cross over a jurisdiction and that the applicant doubted that jurisdiction would
agree to an easement across the property;the fact that if for some reason they wanted to pursue serving the State
Trust Land, they would have to come back before the Town Council for approval but that was an unlikely
scenario; Mr. Hansen's statement that if the boundaries were kept at the Preserve, the Sanitary District had no
problem and his opinion that a resolution adopted by the Council would be appropriate (to keep Goldfield in
Goldfield and not allow it to expand into State land); the applicant's willingness to abide by such a resolution
and limit the DWID to the Goldfield Preserve; the fact that the applicant had requested Town Manager Tim
Pickering's assistance in setting up a meeting with the Sanitary District to discuss providing their own
sanitary/water service in the future for the State Trust Land; the fact that public meetings had been held and
water had been one of the main topics discussed and another meeting was planned for June 27th and a
hydrologist would discuss the results of the study that had been conducted.
Councilmember Leger MOVED to provide consent for the DWID with the stipulation that the DWID prohibited
the extension of the District's boundaries or the District's provision of the service outside of the proposed
cm, boundaries that had been petitioned for.Councilmember Archambault SECONDED the motion.
06-21-07 minutes.doc Page 13 of 15
Councilmember Kehe requested that Councilmember Leger amend the motion to be more specific in terms of
the boundaries with the goal being to keep it out of State Trust Land. „via)
Councilmember Leger AMENDED THE MOTION to provide consent for the DWID with the stipulation that
the DWID prohibits the extension of the District's boundaries or the District's provision of service outside the
proposed boundaries of the Goldfield Preserve. Councilmember Archambault SECONDED the amended
motion.
Councilmember Dickey said that she would like to explain why she could not support the motion. She stated
that it had nothing to do with where it was going to end up, it was really because she did not come in ready
philosophically to put this in the idea of who was paying for the infrastructure, and as they had been sitting here
discussing the issue, she started thinking about earlier discussions regarding the Preserve that had to do with the
CFDs. She added that her opposition was not because of where it was and not to be uncooperative, it was
because this issue represented a huge philosophical decision and she did not feel like that was what they thought
they were going to be talking about.
Mayor Nichols said that he would support the motion because they had satisfied the concerns as far as the
Sanitary District and there was no opposition from the water company. He stressed the importance of
maintaining good relationships with both entities and added that he believed they had accomplished that with the
resolution.
Councilmember Leger, responding to Councilmember Dickey's comments, stated that if the Council decided to
table the issue, moved on and received some clarification, there was no guarantee that the developer would not
ask for a CFD for some other portion of infrastructure.
Councilmember Archambault commented that he was originally concerned with the water table but that was
addressed when they received the survey from the Arizona Department of Water Resources. He added that they
were not approving the CFD, they were just giving our blessing and this really was not Council's jurisdiction.
He said that to withhold approval for something that was outside of our jurisdiction he believed would be
wrong.
Councilmember Schlum stated that his sensitivity was also regarding the premise behind their authority to grant
permission or give consent. He added that Ms. Storey's explanation regarding the City of Tucson made sense as
well so he was comfortable with that and would support it.
Mr. McGuire noted that now that they did have the application in hand, staff would make sure that they provide
the GIS department the legal documents tomorrow and make sure that the legals and the maps match up. He said
that if staff uncovered any discrepancies,the Council would be immediately notified. He clarified that the Town
Manager's signature on the letter was conditioned upon staff verifying all of the information, but that could
certainly be part of the motion if the Council so desired.
Councilmember Kehe asked whether the letter would be revised to reflect the geographical limitations.
Mr. McGuire responded that the intention was that the letter would be revised to include the exact stipulation
that was approved this evening and verification would take place to ensure that the information was correct.
The amended motion CARRIED by majority vote(6-1), with Councilmember Dickey voting Nay.
ITEM#19—SUMMARY OF COUNCIL REQUESTS BY TOWN MANAGER.
Mayor Nichols stated that he wished to discuss the second item on the consent agenda, which concerned the
cancellation of the Fountain Hills Town Council meetings in July. Mayor Nichols wanted to inform everyone Noir
06-21-07 minutes.doc Page 14 of 15
•
that Town staff would be on hand and all the departments would still be open in July,providing full service. He
added that the Town offices would not be shut down,but the Council would not be convening during that time.
Councilmember Dickey commented on the legislature that adjourned last night at 10:58 p.m. and Senator
Allen's Air Quality Bill, which passed. She said that this would have good ramifications for the Town as well
as added responsibilities. The budget went through last week and there was some good news there for teachers
and some other items that she believed were important to the Town, such as transportation. She added that the
Bill to prevent cities and towns from giving sales tax incentives also passed. She said that the Council would
have to really think about what that would mean as far as their future, especially as they moved forward with
some of their economic development plans. She pointed out that the Governor had not signed the bill yet but
there was a strong possibility that that would happen.
Mayor Nichols wished to recognize Julie Ghetti and her department for receiving the Excellence for Financial
Reporting award for the tenth year in a row.
AGENDA ITEM #20 — COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. ITEMS
LISTED BELOW ARE RELATED ONLY TO THE PROPIETY 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
AGENDA ITEM#21—ADJOURNMENT.
Vice Mayor McMahan MOVED that the Council adjourn and Councilmember Archambault SECONDED the
motion, which carried unanimously(7-0).The mee ' g adjourned at 8:12 p.m.
TOWN F AIN HIL
By
Wally N h s,
ATTEST AND
PREPARED BY:
Bevelyn J. d ,Town Clerk
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Session held
by the Town Council of Fountain Hills on the 21st day of June, 2007. I further certify that the meeting was duly
called and that a quorum was present.
Dated this 2nd day of August, 2007.
Bevelyn J. nde ,Town Clerk
06-21-07 minutes.doc Page 15 of 15
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