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HomeMy WebLinkAbout2012.0202.TCREM.Minutesz:\council packets\2012\r2-16-12\120202m.docx Page 1 of 22 TOWN OF FOUNTAIN HILLS MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL FEBRUARY 2, 2012 EXECUTIVE SESSION AGENDA CALL TO ORDER Mayor Schlum called the Executive Session to order at 5:30 p.m. in the Town Hall Fountain Conference Room at Town Hall. AGENDA ITEM #1 – ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: (i) PURSUANT TO A.R.S. §38-431.03(A)3, DISCUSSION OR CONSULTATION FOR LEGAL ADVICE WITH THE ATTORNEY OR ATTORNEYS OF THE PUBLIC BODY (SPECIFICALLY, IMPLEMENTATION OF MEDICAL MARIJUANA PROGRAM). ROLL CALL: Present for roll call were the following members of the Fountain Hills Town Council: Mayor Schlum, Councilmember Brown, Councilmember Leger, Councilmember Hansen, Vice Mayor Dickey, Councilmember Contino and Councilmember Elkie. Director of Development Services Paul Mood, Town Attorney Andrew McGuire, Interim Town Manager/Finance Director Julie Ghetti, Senior Planner Bob Rodgers, and Town Clerk Bev Bender. Councilmember Brown MOVED to enter into the Executive Session and Vice Mayor Dickey SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #2 – ADJOURN TO THE REGULAR SESSION Without objection, the Executive Session adjourned at 6:03 p.m. REGULAR SESSION AGENDA * CALL TO ORDER AND PLEDGE OF ALLEGIANCE Mayor Schlum called the meeting to order at 6:30 p.m. in the Town Hall Council Chambers. * INVOCATION – Susan Ducot, Baha'i Faith Community * ROLL CALL Present for roll call were the following members of the City Council: Mayor Schlum, Vice Mayor Dickey, Councilmember Brown, Councilmember Leger, Councilmember Contino, Councilmember Elkie, and Councilmember Hansen. Acting Town Manager/Finance Director Julie Ghetti, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. * MAYOR’S REPORT i) The Mayor will read a Proclamation declaring February 11, 2012 as "Public Safety Day." Mayor Schlum stated that the Fountain Hills Rural/Metro Fire Department and Maricopa County Sheriff's Office have dedicated themselves to the protection of life and property of citizens of the Town, often at great risk to their own safety and well being. He said that both entities have continuously supported efforts to elevate their standards and training and have been instrumental in improving methods of fire and crime prevention. The Mayor commented on the extreme hazards associated with both professions, the contributions and sacrifices firefighters and police officers make on a daily basis, and the extensive training, courage and selfless concern that is needed in order to carry out their important responsibilities. He added that the work of firefighters and police officers deserves the attention and gratitude of all individuals in the Town of Fountain Hills. Mayor Schlum stated that it is his honor to proclaim z:\council packets\2012\r2-16-12\120202m.docx Page 2 of 22 February 11, 2012 as "Public Safety Day" in the Town and encouraged all citizens of Fountain Hills to recognize and honor the Town's firefighters and police officers for their efforts to keep all citizens safe. ii) The Mayor will read a proclamation declaring February 9, 2012 as "Pony Express Day." Mayor Schlum stated that the Pony Express played a particularly important and colorful part in the history of the West dating back between 1860 and 1861. He noted that each year the Pony Express riders are remembered with a commemorative ride by the members of the Hashknife Gang traveling from Holbrook to Scottsdale. He said that Fountain Hills is the next to last stop on their trek. The Mayor said that it is his honor to proclaim February 9, 2012 as "Pony Express Day" in the Town of Fountain Hills and encouraged all Town residents, visitors and residents and visitors of surrounding areas to join in the festivities and dress western to commemorate this part of our history in the West. The Mayor noted that the Arizona Centennial Celebration is coming up and the Town's Centennial Circle is just being completed. He said that the festivities will begin at 3:00 p.m. on Sunday at the Circle on February 12th. He encouraged attendance at this wonderful event as well as other events that will take place that day. * SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS (i) PRESENTATION BY THE FOUNTAIN HILLS CHAMBER OF COMMERCE TOURISM DIVISION ON FY 11-12 DISBURSEMENT OF FUNDS FOR TOURISM. Mark McDermott, Director, and Francesca Carozza of the Fountain Hills Visitors Bureau, a division of the Chamber of Commerce in the area of destination marketing, addressed the Council and briefly highlighted a PowerPoint presentation on goals and achievements, strategies and programs, new initiatives, including a brand identity and a Fountain Hills destination website (to launch in February, 2012), print advertising, other advertising, publications, the visitors guide (40,000 distributed in 400+ visitor related locations throughout the Valley), the Fountain Hills Dining Guide and Map, a calendar of events, a bridal guide, niche markets including golf, and weddings, social media/trip advisor.com (sponsor page, combines user content with Visitor Bureau content), social media/on-line marketing, meetings and conventions, and scope of work deliverables (a complete copy of the presentation is on line and available in the office of the Town Clerk). Mayor Schlum thanked Mr. McDermott for his presentation. Councilmember Leger stated that great progress has been made and he is looking forward to the fruits of their labor in terms of "feet on the street" in downtown Fountain Hills. Councilmember Brown complimented Mr. McDermott and the Visitors Bureau on the new branding logo and said that the progress to date is "completely blowing him away." Councilmember Contino congratulated Mr. McDermott on the work that has been done to date and thanked the Bureau for their outstanding efforts. Vice Mayor Dickey also commended the Bureau and asked how often the Visitor's Guide comes out. Mr. McDermott replied that it is published once a year and advised that e-blasts from the Chamber as well as a sales force actively works to let everyone know when the Guide will be coming out. He noted that it is distributed by a firm called Certified Folders throughout the State to over 400 locations. He confirmed that if someone wants to be in it next year (they missed out this time) should just contact the Chamber and arrangements will be made. Councilmember Elkie complimented the Bureau on a job well done and added that he is pleased with the improved relationship between the Chamber and the Town. Councilmember Hansen agreed with the comments of the previous speakers. Mayor Schlum reiterated his appreciation for all of the excellent work that has been done and Mr. McDermott thanked the Council for the opportunity to address them and for their continuing support. z:\council packets\2012\r2-16-12\120202m.docx Page 3 of 22 Mayor Schlum noted that Vice Mayor Dickey and Councilmember Hansen recently celebrated their birthdays and wished them both a very happy birthday. The Mayor advised that the State of the Town will occur at the next Regular Council Meeting. He added that it is peak season for winter sports at Fountain Hills High School (the Falcons) and encouraged attendance and support at those events. CALL TO THE PUBLIC Town Clerk Bev Bender advised that one citizen wished to speak under this agenda item. Charles Herman addressed the Council and said he was present to discuss what he believes is a problem in Fountain Hills -- the growing number of birds at Fountain Park Lake. He stated that a lot of money is being spent to clean the park and the walks but the mess left from the birds is hampering enjoyment of that great amenity. He added that people continue to feed the birds and that is not good for them and then the birds create a mess in the park w here children play. He stated the opinion that the lake is filled with seriously polluted water and called on the Council to do something to reduce the bird population at that location. Mayor Schlum thanked Mr. Herman for his comments. CONSENT AGENDA AGENDA ITEM #1 – CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES FROM JANUARY 19, 2012. AGENDA ITEM #2 – CONSIDERATION OF APPROVING THE LIQUOR LICENSE APPLICATION SUBMITTED BY MOHINDER SINGH MANHAS, OWNER/AGENT OF NANAK 786 LLC/DBA ADOBE WINE & LIQUORS, LOCATED AT 16726 EAST EL PUEBLO, FOUNTAIN HILS, AZ. THIS IS FOR A SERIES 09 LICENSE (LIQUOR STORE). AGENDA ITEM #3 - CONSIDERATION OF APPROVING A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT D. SCHMITZ, REPRESENTING THE AMERICAN LEGION POST 58, LOCATED AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, FOR THE PURPOSE OF A FUND RAISER. EVENT TO BE HELD AT 16837 E. PARKVIEW, SCHEDULED TO BE HELD ON FRIDAY, SATURDAY AND SUNDAY, FEBRUARY 24, 25, 26, 2012, FROM 9:00 A.M. TO 12:00 P.M. AGENDA ITEM #4 - CONSIDERATION OF APPROVING A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT D. SCHMITZ, REPRESENTING THE AMERICAN LEGION POST 58, LOCATED AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, FOR THE PURPOSE OF A FUND RAISER. EVENT TO BE HELD AT 16837 E. PARKVIEW, SCHEDULED TO BE HELD ON SATURDAY, FEBRUARY 18, 2012, FROM 9:00 AM TO 12:00 PM. AGENDA ITEM #5 - CONSIDERATION OF APPROVING A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT D. SCHMITZ, REPRESENTING THE AMERICAN LEGION POST 58, LOCATED AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, FOR THE PURPOSE OF A FUND RAISER. EVENT TO BE HELD AT 16837 E. PARKVIEW, SCHEDULED TO BE HELD ON SATURDAY, MARCH 17, 2012, FROM 9:00 AM TO 12:00 PM. AGENDA ITEM #6 - CONSIDERATION OF APPROVING A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT D. SCHMITZ, REPRESENTING THE AMERICAN LEGION POST 58, LOCATED AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, FOR THE PURPOSE OF A FUND RAISER. EVENT TO BE HELD AT 16837 E. PARKVIEW, SCHEDULED TO BE HELD ON SATURDAY, MARCH 24, 2012, FROM 9:00 A.M. TO 12:00 PM. z:\council packets\2012\r2-16-12\120202m.docx Page 4 of 22 AGENDA ITEM #7 - CONSIDERATION OF APPROVING A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY GISELA H. NAVONE, REPRESENTING THE AMERICAN LEGION AUXILIARY FOUNTAIN HILLS UNIT 58, LOCATED AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, FOR THE PURPOSE OF A FUND RAISER. EVENT TO BE HELD AT 16837 E. PARKVIEW, SCHEDULED TO BE HELD ON FRIDAY AND SATURDAY, FEBRUARY 24 AND 25, 2012, FROM 9:00 AM TO 6:00 PM, AND SUNDAY, FEBRUARY 25, 2012, FROM 10 AM TO 6:00 PM. AGENDA ITEM #8 - CONSIDERATION OF ACCEPTING THE AREA AGENCY ON AGING CONTRACT FOR SERVICES FROM JULY 1, 2011 AND ENDING JUNE 30, 2012. Councilmember Hansen MOVED to approve the Consent Agenda as listed and Councilmember Brown SECONDED the motion. A roll call vote was taken as follows: Mayor Schlum Aye Vice Mayor Dickey Aye Councilmember Leger Aye Councilmember Hansen Aye Councilmember Contino Aye Councilmember Brown Aye Councilmember Elkie Aye The motion CARRIED UNANIMOUSLY (7-0). REGULAR AGENDA AGENDA ITEM #9 - CONSIDERATION OF A POSSIBLE TRANSFER OF BUDGET AUTHORITY IN THE AMOUNT OF $6,900 FROM THE CAPITAL PROJECTS FUND TO THE PUBLIC ART FUND FOR APPROPRIATION OF PUBLIC ART IN FY 11-12. Interim Town Manager/Finance Director Julie Ghetti addressed the Council relative to this agenda item and advised that the Town has a separate fund, a Public Art Fund, which was established with the adoption of Resolution 2008-39. She said that the budget for FY 2011-12 was adopted with a zero appropriation amount due the expectation that there would be limited commercial development that would contribute towards public art. She noted, however, that there were six commercial projects that contributed $7,970 to the Public Art Fund this fiscal year and the Fountain Hills Cultural & Civic Association has requested to use those funds to purchase additional art pieces. She informed the Council that without an authorized budget, the Association is unable to spe nd the money that has been deposited into the fund and therefore they are requesting a budget transfer in the amount of $6,900. She explained that this would be in addition to the budget transfer that was approved during the January 19th Council meeting a nd would bring the total budget for the Public Art Fund from zero to $10,000. She added that the budget transfer would come from the capital projects contingency line item and moved to the Public Art fund expenditure line item. She stated that the balanc e in the Public Art Fund is currently $7,471 and the expenditures cannot exceed the available revenues. Mayor Schlum thanked Ms. Ghetti for her presentation. There were no citizens wishing to speak on this agenda item. Councilmember Contino MOVED to approve the transfer of budget authority from the contingency expenditure line item within the Capital Projects Fund to the expenditure line item in the Public Art Fund and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #10 - CONSIDERATION OF AN EXPENDITURE TO PRECISION ELECTRIC COMPANY, IN THE AMOUNT OF $43,805.17, FOR THE REPAIR AND REPLACEMENT OF THE THIRD AND FINAL PUMP AND MOTOR FOR THE FOUNTAIN AT FOUNTAIN PARK. z:\council packets\2012\r2-16-12\120202m.docx Page 5 of 22 Community Services Director Mark Mayer addressed the Council relative to this agenda item and explained that last Fiscal Year the first pump and motor that operates the Fountain in Fountain Park had to be removed , serviced and reinstalled. He said that staff is not aware of any previous major work on the p umps and motors since they were originally installed in the early 1970's. He added that staff budgeted funds this year to pull the two remaining pumps and motors and stated that the third and final pump and motor were pulled recently and staff has receive d a quote from Precision Electric Company for the repairs at a cost of $43,805.17. He noted that the cost for the last two pumps and motors was more expensive as the pump belts on both of those pumps had deteriorated to the point that they needed to be replaced instead of repaired. He outlined the scope of work that would take place and said that the current balance in funding is not sufficient to cover all of the repair costs, which would leave a negative balance of $2,410.69 (this amount would be covered by the contingency left in the Capital Projects Fund). Mr. Mayer requested Council approval of this agenda item and indicated his willingness to respond to any questions. Mayor Schlum thanked Mr. Mayer for his presentation. Mayor Schlum expressed the opinion that the lighting has seemed dimmer that normal and Mr. Mayer agreed. He said that some of the lights were repaired today and a few more will be repaired shortly so the lighting will be much improved. There were no citizens wishing to speak on this agenda item. In response to a question from Councilmember Elkie, Mr. Mayer advised that they will have a ten-year warranty on the workmanship and materials themselves for the pumps. He explained that the Town's pumps don't fully load because one pump is turned on for the Fountain and then the second one starts up so they don't have to ramp up -- they are simply on or off. Vice Mayor Dickey asked if the gauge (to avoid wind problems) was ever put in and Mr. Mayer replied yes, it has been in place for a little over a year now and the system is working. Councilmember Leger MOVED to approve a Professional Services Agreement for the repair of the third and final pump for the Fountain at Fountain Park in the amount of $43,805.17 to Precision Electric Compan y and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #11 - PUBLIC HEARING TO RECEIVE COMMENTS ON A PROPOSED CONCEPT PLAN FOR PROPOSED RETAIL/OFFICE/RESTAURANT USES IN TWO 42' TALL BUILDINGS AND TO ALLOW A 45' TALL THEATER BUILDING WITHIN THE TOWN CENTER COMMERCIAL ZONING DISTRICT (TCCD) AT 16725 E. VERDE RIVER DRIVE. (CASE #CP 2011-06) Mayor Schlum declared the public hearing open at 7:23 p.m. Mayor Schlum announced that there will be one report for Agenda Items 11, 12 and 13 and added that public comments will be accepted under this agenda item. Senior Planner Bob Rodgers addressed the Council relative to these agenda items and said that this is the application for the Concept Plan for approval of the Avenue Theater and commercial use project -- a mixed use project containing retail/office/restaurant uses. (Copy available in the office of the Town Clerk.) He referred to the site plan and reported that the project is proposed to occur in two phases, Phase 1A and 1B. He said that Phase 1A consists of three buildings -- the first is a 60,362 square foot, 12-screen movie theater that would be 45-feet tall and requires specific approval under the Town Center Commercial Zoning District (TCCD) regulations (Building Q). He added that the second building is a 4,378 square foot one story attached building, which is proposed to be a martini bar and could potentially include a patio for dining (Building M). He stated that the third building, a 5,200 square foot one-story space, is proposed to be a single structure and is actually attached to the north side of building Q and currently a video arcade and ice cream parlor are being proposed at that location (Building N). He noted that parking lots would be constructed as part of Phase 1A. z:\council packets\2012\r2-16-12\120202m.docx Page 6 of 22 Mr. Rodgers further stated that Phase 1B would consist of two buildings, a 44,124 square foot building containing 14,708 square feet of retail space on the ground floor and 29,416 square feet of office space on the second and third floors. He noted that the building is a stand-alone, 42' tall building that faces Avenue of the Fountains on the north side of the project (Building B). He said that the second building would consist of 41,141 square feet containing 1,998 square feet of restaurant space and 11,932 square feet of retail space on the ground floor, as well as 27,211 square feet of office space on the second and third floors. He added that this building is also a stand alone, 42' tall building and also faces the Avenue of the Fountains on the north side of the project (Building C). Mr. Rodgers informed the Council that both buildings B & C are currently proposed to be 42' high with retail and/or restaurant space on the ground floor and office space on the second and third floors. Mr. Rodgers said that parking will be provided on the south and west sides of the theater and stated that a total of 843 spaces are being provided on-site (on Town property) and along the Avenue of the Fountains and Verde River Drive frontages. He explained that under the shared parking model, this number is sufficient for the proposal and the proposed Development Agreement authorizes the use of the Town-owned parking areas. He said that without a Development Agreement and attached Reciprocal Parking Agreement this project's parking would not comply with zoning. Mr. Rodgers discussed loading areas and connections from the Town property to this property. He noted that there would be a pedestrian plaza between the buildings that would run from Verde River Drive (no vehicles in that area). He said that the building is proposed to have a contemporary Southwest design and said that material boards have been provided to the Council for their review. He advised that the applicant has stated that they may want to modify some of the materials and not use some of the stone treatments. He referred to various slides showing the views of the various buildings and the entire project. He said that there is also a possibility that the applicant may want to eliminate a third story on buildings B and C and have their stone facades modified. He stated that this coul d modify Stipulation #7 in the Staff Report. In summary, Mr. Rodgers advised that the applicants are seeking approval for a 45' tall theater building, two 42' tall commercial buildings, three 30x10 loading zones and utilizing the Shared Parking proposal a s discussed. He said that there will be right-of-way encroachments in the drop off and patio areas that will require separate permitting and a Development Agreement is being proposed that includes such things as the use of Town property and the Reciprocal Parking Agreement. He reported that the both the Planning & Zoning Commission and staff recommend that the Council approve the plan, including the increased building heights and parking space waivers as discussed, subject to the stipulations contained in the Staff Report as well as the Stipulation added by the Planning & Zoning Commission requiring re-approval of the Concept Plan if it should change. He added that staff also recommends approval of the Development Agreement, which outlines the responsibilities of the developer and the Town as they relate to the development, including among other things use and development of Town property for parking and the parking agreement. Mr. Rodgers indicated his willingness to respond to questions from the Council. He added that the developer does have a presentation of his own and he would like to present that before the question and answer period begins. Mayor Schlum thanked Mr. Rodgers for his presentation. Vice Mayor Dickey asked if Mr. Rodgers could provide some definitions, such as what is a Concept Plan, a Development Agreement, right-of-way versus easement, the TCCD Zoning District, etc., and Mr. Rodgers complied with this request and provided an explanation of the terms used in his presentation. In response to a question from the Vice Mayor, Town Attorney Andrew McGuire stated that the Concept Plan and Development Agreement, in this case, are "paired together" (separate approvals) -- the Concept Plan approval stands on its own and the Development Agreement approval stands on its own. The Development Agreement does reference over to the Concept Plan so any modifications to the Concept Plan would have to happen in conjunction with the Development Agreement (they are not inter-related in any other way). Dave Fackler, a partner in the development currently before the Council, addressed the Council and noted that there are four partners all together. He said that architects for the proposed project are in the audience and would be willing to speak to any issue raised this evening. He noted that there has been a change in the project builder and said that z:\council packets\2012\r2-16-12\120202m.docx Page 7 of 22 Adolfe Peterson Construction, a very well known and accomplished builder, will be the General Contractor in charge. He discussed his and his partners’ commitment to utilize Fountain Hills' subcontractors and said that they have already made contact with a number of them. He expressed appreciation to Mr. Rodgers and staff who have worked with them to bring this project forward. He stated that they agree with the contents of the Staff Report (and conditions), the Development Agreement, the Reciprocal Parking Agreement that is part of the Development Agreement and said they are ready to move forward with the project. He noted that Concept approval is a major step in the process and added that from that point, they will move on to construction drawings and final bids for the project. He said he hopes that they can move forward and begin dirt work in March. He commented on Buildings B & C, the office/retail buildings along the Avenue, and said that they have been studying these buildings on an on-going basis, primarily the office component (the upper two floors and almost 57,000 square feet of space), and said that current markets are not supporting the development of that much office space in Fountain Hills as much as they would like to see it. He added that it looks as though there will not be any way to fill that within a reasonable economic timeframe so at this point they are reserving the right to remove the upper floor of both buildings B & C. He noted that it may only apply to one building but right now it looks like both buildings. He said that a significant amount of square footage would still remain. He reported that there will not be any changes to the materials that were provided to the Council for their review as they relate to Phase 1 A -- the theater building and buildings that are attached to the theater. He added that any changes in materials and design as a result of reducing the number of floors in buildings B & C would be brought before Planning & Zoning and the Council (a revised Concept Plan). He referred to slides depicting building/site designs (Copy available in the office of the Town Clerk). Mayor Schlum thanked Mr. Fackler for his comments. Ms. Bender advised that she has received requests to speak from 20 citizens at this point in time. Mike Wager addressed the Council and said he and his neighbors (Village at Towne Center) would like to take a few minutes of the Council's time to discuss the theater complex that is being considered. He discussed the enormity of this undertaking and stated that they believe that this proposal requires much more consideration before the Council takes action. He agreed that most people would want a movie theater in their community but to approve the proposal at hand without first addressing the negatives, both real and potential, raises serious questions. There will be a lot more asphalt, a huge structure and if it succeeds, great but if not they will have a large building to add to the Town's existing vacancies. He noted that one of the developers was involved in the Water's Edge project , which was unsuccessful and created a vacancy along Saguaro Boulevard. He questioned whether this is a developer they want involved in this project and questioned who would be on the hook if it does fail. He requested that this project be given much more scrutiny and added that it should be moderated based on public opinion. He noted that a similar project was discussed in 2008 and stated that it was much more realistic but inappropriate and expressed the opinion that this is totally the opposite of what the community stands for. He commented on concerns that will be expressed by other citizens this evening and requested that the Council consider what they will hear. Tim Call (Village at Towne Center) addressed the Council and passed out copies of a PowerPoint presentation that he highlighted for the Council (Copy available in the office of the Town Clerk). He discussed his intention to address some of the economics associated with the project and said that the material he has collected for his presentation comes from credible sources like the National Association of Theater Owners, the Arizona Republic newspaper, and from walking the Fountain Hills business corridor to assess for himself the current state of Fountain Hills' commercial real estate. He noted that pollution has an economic impact and said researchers have stated that ozone can form near paved parking lots as surface heat mixes with cars' gasoline fumes. People exposed to pollution can, over time, sicken and shorten their lives. Growth and land use compound the challenges. He also outlined a list of notable empty commercial properties observed in the business core and discussed US and Canada theater admissions (currently trending downward). He provided a list of five reasons why people are not going to the movies, including better home equipment, the Video on Demand window, television (HBO and Showtime), increasing ticket prices and substandard movies. He referred to a chart depicting the number of US movie screens and said that it too is currently trending downward. He stated that economic concerns warrant additional research and community involvement in the decision- making process. Jean Rollo (Village at Towne Center) addressed the Council and discussed the contents of a handout that was distributed to the Council (Copy available in the office of the Town Clerk). She expressed concerns about increased automobile traffic and new traffic patterns that will be generated by "The Avenue" and movie theater project. She z:\council packets\2012\r2-16-12\120202m.docx Page 8 of 22 added that her concern is increased by the fact that no official traffic impact analysis has been conducted prior to tonight's request for approval. She listed the number of things that such a study would consider. She said that at the Planning & Zoning Commission meeting last Thursday, it was stated that traffic matters will be examined at a future date and the findings will not impact the building pr ocess. She added that the only action available to the Town is to withhold a Certificate of Occupancy for an already completed building until traffic issues are mitigated. She stated that the Town's Traffic Engineer has stated that a delay in obtaining such information could result in off-site traffic mitigations (over $1 million). She advised that her home is located next to the huge parking lot attached to the proposed new movie theater and added that the two primary points of entrance and exit for this parking lot are immediately adjacent to her community. She emphasized that the impact of greatly increased traffic volumes on Verde River Drive and Paul Nordin Parkway is of primary importance to everyone. She pointed out that all cars entering/existing the parking lot as currently envisioned will pass within 25 feet of their buildings, creating traffic noise and, after dark, repeated glare of headlights in their homes. She questioned why these two lanes, non-thru streets bordering a residential community should provide primary access to the theater parking lot and suggested that access be created from the commercial area along the four-lane Avenue of the Fountains or the significantly wider La Montana Drive. She requested that some sort of buffer between their community and the parking lot be included in the plan in the form of a wall along Paul Nordin Parkway and right-of-way and/or landscaping to minimize the traffic impact. She urged the Council not to take any action prior to serious consideratio n of mitigating issues which the project will create. Gigi Lentz (Village at Towne Center) addressed the Council and discussed the contents of a handout that was distributed to the Council (Copy is available in the office of the Town Clerk). She said that she would like to focus on the south end of the proposed parking lot, which is adjacent to her complex. The proposed area for vehicles to enter and exit the parking lot is at the end of Verde Rive Drive where it meets Paul Nordin Parkway. When entering /exiting the parking lot at night the headlights of the vehicles will shine right into homeowners' buildings. She commented on the 2008 proposal and said that Town property was to be used as a gateway garden and stated the opinion that the current concept would be a beautiful complement to the Library, Community Center and the new Centennial Circle complex. She said that the developer has eliminated the area that was proposed for a walkway and vegetation and replaced it with blacktop to provide parking spaces, which will impact everyone. She also expressed concerns about overhead lighting, noise from the vehicles and the impact of carbon monoxide exhaust from the vehicles, runoff problems during monsoon season that may cause problems from the parking lot into the residential area and the impact of the high temperatures on blacktop. She requested that the Council reconsider the donation of Fountain Hills' public land to build a parking lot of this size without a significant buffer between it and her community. Lee Miller (Village at Towne Center) addressed the Council and discussed the contents of a handout that was distributed to the Council (Copy is available on line and in the office of the Town Clerk). She stated that according to the planned project introduced to the Planning Commission last week, the developer made the following points: There was a planned wall six feet high along the end of the south parking section but they were not building it; there was planned vegetation along that area but they were not planting it and there was a planned walkway along that area but they were not constructing it. She stated that the developer is asking for 60 more parking spaces to the detriment of the only residential area and asked if an environmental study had been done outlining the impact on adjacent residents. She questioned who is going to be responsible and liable if there is proven pollution and water hazards from the parking lot being so close to the building. She commented on the fact that a traffic analysis study has not been conducted and pointed out that according to the developer there will be 1,000 vehicles traveling on Verde River Drive and Paul Nordin Drive each day. She noted that Village at Towne Center does not have a fence in that area a nd asked whether the Town or developer is going to pay for one to be constructed so that pedestrian traffic does not trespass on their property (who is going to build the wall and when?). She also asked who is going to plant the vegetation and when and who is going to construct the walkway and when. Ms. Miller said that she and fellow Village at Towne Center residents would like to present a solution -- the property owned by the Town reverts back to previous intentions of a Gateway Garden with a walkway and all parking is removed from that area. This will move the parked vehicles from 50 feet away to 150 feet away. A planned walkway, vegetation and a wall of 6-feet above the blacktop are reinstated. This will reduce the immediate glare of the headlights, the potential deadly problem of carbon monoxide poisoning and potential water runoff into their complex. The Town property parking portion containing 73 of those spaces are not necessary per the Utilization Study or projected required parking. She requested that the Council be a good neighbor as the residents of The Village at Towne Center are trying to be and to consider all of the points being raised this evening. z:\council packets\2012\r2-16-12\120202m.docx Page 9 of 22 John Fraser (Village at Towne Center) addressed the Council and discussed the contents of a handout that was distributed to the Council (Copy available in the office of the Town Clerk). He commented on the number of parking spaces in and around Fountain Hills' town center and the increase in parking spaces that the proposed "The Avenue" project will create. He reported that the project will add another 399 new spaces, in addition to the 400 spaces currently dedicated to serve the municipal complex. He said that there are an estimated 465 spaces located on and around Parkview Avenue that are in need of some TLC. He noted that that totals 1,264 dedicated parking lots spaces, which is above and beyond what is permitted for on street parking within the center of Town. He stated the opinion that the number is excessive and will result in more empty asphalt in the center of Town. He also said that some of the land for the 399 new spaces will come from the Town (per the plan, the Council will be contributing 1 3/4 acres of the Town's own unimproved desert land to the project resulting in 189 unnecessary parking spaces). He added that the parking model study indicates that the total shared parking of 843 spaces is in excess of the projected required need by either 58 or 106 spaces depending on the day and the week. He noted that Mr. Fackler, one of the developers, testified before the P&Z Commission that in his experience a 68-70% utilization of required parking spaces is reality and that equates into an excess of 253 spaces. He suggested that the Town not turn over its land to become more asph alt and further suggested that together the Town Council and the developer enter into discussion with the Parkview merchants group about incorporating their underutilized 465 parking spaces into "The Avenue" project and perhaps giving it a needed facelift. He expressed the opinion that the structures (e.g. places of business, offices, etc.) are servicing the needs for parking as opposed to the opposite concept that parking should service the needs of structures or businesses. He requested that the Council not approve the resolution this evening without taking time for further review. Janet Call (Village at Towne Center) addressed the Council and reiterated concerns previously stated relative to the lack of screening between the parking lot and the residential area. She said that Mr. Rodgers had told her that a wall would be put up but it cannot be found on the Concept Plan. She encouraged the members of the Council to physically walk this parcel and stated that there is no fence between the Town land and the homes to the south. She noted that the Development Agreement allows the developer to use all of the vacant land during construction phases, which means that heavy construction equipment will be close to the adjacent homes. She pointed out that some homes are below the grade of the parking lot and this may be problematic. She encouraged the Council to step back and carefully review concerns and adverse impacts. She asked them to put themselves in the residents' shoes and to look at the big picture. Sid Sheggeby (Village at Towne Center) addressed the Council , distributed a map depicting a specific area (Copy available in the office of the Town Clerk), and expressed concerns about the south end of the proposed parking lot adjacent to the residential area in which he lives. He discussed the fact that the Town is a very well -planned community where development has been done with quality and good taste (buildings, landscaping, the Fountain, parks and residential areas). He stated that the south end of the black top parking lot will come right up to the area he lives in and added that the area is a natural for a beautiful gateway garden art walk, which connects to what already exists by the Library and Community Center and would preserve the property values and privacy of the Village at Towne Center residents. He added that the Library, Community Center and nearby art work, including the Centennial Circle and the Greening project, are all so complementary and work together and add to the charm of the Town. He said that the east end of the art work display ends abruptly and turns into a dusty gravel road. He advised that the residents would rather see a continuum of the art work down to Verde River Drive and then on to the Fountain area. He stated that the residents are recommending that the Council recommend a 150-foot wide area at the south end of the proposed parking lot for development of this walkway. He added that the work should be done by the developer as the project progresses. He asked the Council to look at this development project as an opportunity to develop and enhance the Fountain Hills area. Wendy Kelleher (Village at Towne Center - HOA Board) addressed the Council and said that she is a resident and owner of a condominium in the complex that would be seriously impacted by this proposal. She said that the Council should focus on the well being of its constituents including the 145 families who live close by. She said that there are serious problems with this proposal. She added that she feels a keen responsibility to protect the residents' quality of life and property values. She stated that she hopes that by now the Council will have come to the same conclusion that this small delegation of residents has to come to -- that there are serious flaws in the proposed Concept Plan (from the weak understanding of the economics of a small town to un-thought out traffic issues, to light, sound and heat pollution issues and excessive and unnecessary parking spaces). She advised that the proposa l is asking the residents at the Village at Towne Center and everyone in Town who values the quality of life they enjoy here to sacrifice too much. She informed the Council that she and her husband sell real estate all over the Valley and they see firstha nd what happens when a community surrenders thoughtful planning to the god of urgency. She noted that the Town has a z:\council packets\2012\r2-16-12\120202m.docx Page 10 of 22 vision that the Town Councils and Mayors have had for the last 40 years -- the vision and dedication to artistic unity, a Town that has personality. She stated that because of the flaws in the proposed Concept Plan, the residents strongly urge the Council to not approve this proposal until after the questions that the residents of the Village at Towne Center have raised and who will suffer the greatest impact, have been answered and the proposal has been modified to more accurately reflect the values, personality and vision of Fountain Hills. Lisa Wager did not address the Council since her concerns had been previously expressed (opposition to the proposal). Bill Luzinski addressed the Council and stated that the movie theater is a good idea but the proposed location and size is wrong. He expressed the opinion that six screens would be more appropriate for the community than twelve. He suggested that a better location would be on Shea Boulevard west of Technology Drive where the Town owns acreage. He said that residents of the Town would use it and so would people driving on Shea Boulevard as they travel to Saguaro Lake and those going from Mesa to Scottsdale. He noted that other major theaters are located on major roadways or in malls and provided examples and said a theater should not be located where people cannot easily see it. Mary Ann Michaels addressed the Council and stated that she is a resident, a Fountain Hills real estate agent and the originator of the proposed Fountain Hills Urban Gardens Learning Center. She said that as a resident she is thrilled to see a movie theater coming into Town. She advised that she goes to Tempe to see newly released movies and they cannot get those movies if they have a smaller theater complex. She noted that this is an $18 million investment in Town and emphasized the importance of bringing life into the downtown area. She said that this will bring people up from Frank Lloyd Wright Boulevard and from east Mesa, Rio Verde and north Scottsdale into the Town. She stated that since 2003, she has been telling her clients interested in locating in Town that a proposed movie theater complex is being planned and said that this has been a great marketing tool. She further stated that as they are working on the Urban Gardens Learning Center they need this foot traffic, especially the out -of-area foot traffic. She added that the proposal looks beautiful and she hopes that the other issues can be worked out (she would like to buy the first ticket). Vreny Middleton addressed the Council and stated that she too would like to see a movie theater in Town but reiterated previous concerns about having twelve screens instead of six like Camelview, which is always full. She said that she is not sure they have to have new movies the second they come out. She also expressed concerns about the possibility of the theater not being a success and the Town being stuck with a huge, unusable building. She asked the Council to reconsider this whole project and said that the project should be geared to the community of Fountain Hills instead of a large city like Scottsdale. Frank Ferrara, CEO and President of the Fountain Hills Chamber of Commerce, addressed the Council and requested that the Council support this well thought out project. He noted that the Chairman of their Board planned to attend but had another engagement that he could not cancel. He advised that the Chamber has supported this project from the outset -- when it was a bigger project than it is now. They knew that the 13.5 acres on the south side was going to be commercially developed and they knew there were going to be homes out the land -- the people who bought the condominiums there knew that parcel was zoned commercial. He stated that they don't view this project solely as a movie theater, they view it as an entertainment center (something that could be vibrant for the middle of their downtown area). He reminded everyone that the Urban Land Institute said that if they want to have a vibrant downtown they have to have something there to attract people and generate activity. He emphasized the importance of having gathering centers such as theaters, restaurants, bars, etc. and said that the Town is spending money to attract people to Fountain Hills but they need something to do when they get here. He noted that almost two years was spent developing a Vision Plan for the Town -- residents were strongly involved in that process and provided their input -- and this is part of the General Plan as well. Tim O'Rourke addressed the Council and stated that he and his wife love to go to movies and his son is involved in the business in Hollywood. He advised that they are tired of having to drive anywhere from a half hour to forty -five minutes to see a movie. He stated that they and he is sure a lot of other Town residents are spending their money in other municipalities because an amenity such as the proposed theater is not located in Town. He added that the theater will be an anchor that future development, a social area, could be built around. He commended the Visitors Bureau on their presentation and noted that they are doing a lot of work to bring people to Town but it will be all for naught if there are not things for people to do when they get here, especially during the evening hours. He said that the commercial operator of the proposed theater would not be planning on coming to Fountain Hills if he had not done his z:\council packets\2012\r2-16-12\120202m.docx Page 11 of 22 homework and added that the Town must continue to grow. He urged the Council to approve the proposed Concept Plan. Jeff Cohen addressed the Council and said as members of government, they are not there to pick winners and losers -- entrepreneurs come to Town and take on that responsibility. He commented that the Village at Towne Center is a beautiful location and the people who bought there did so because of that and the fact that they can w alk to the downtown area. He said that he doubts they ever envisioned that a cemetery would be located adjacent to them or a large park -- they must have known that something was going to be built there. He added that it is like people buying property close to an airport and then complaining about planes flying over. He stressed the importance of bringing business downtown and said that the nightlife in Town is extremely lacking. The theater would provide jobs for teens and generate sales tax dollars. He added that it fits the zoning model that has been developed for the Town and although you can't make everyone happy, he believes that this is a wonderful opportunity for the Town of Fountain Hills. Al Donaldson addressed the Council and advised that he is a long-time resident and business owner in Town as well as a member of the Fountain Hills Business License Association as the owner of his corporation, Double D Construction, which has been selected to do the site work for this project. He said that t hey are very excited about this prospect because of the positive economic benefit it will have on the entire Town. He stated that this project will bring in so many jobs afterwards as well and he looks forward to its completion. Jim Catrill was no longer present at the meeting but submitted a speaker card in opposition to the proposal. John Lindsay addressed the Council and said he is there on behalf of the theater. He added that he hopes it does get approved and it would be great to be able to take his ten-year old son to the movies in Town rather than having to travel to other communities. He questioned previous speakers' comments regarding negative environmental impacts on the Town and added that sooner or later, Air Quality Control will make the Town pave or mill the dirt areas to improve air quality. He stated that he hopes this proposal is approved. Jerry Kirkendoll addressed the Council and said he is a 30-year resident of the Town. He noted that in the past there has been resident opposition to a number of proposals and tonight he is hearing the same arguments that he has heard in the past. He emphasized the importance of getting the Town going and spoke in support of the proposal being built in the downtown area. He pointed out that the property has always been zoned for commercial use and the Town is mostly built out so they need ways to generate more revenue. He added that he is not concerned about the height of the buildings and said that one school in Town has already closed down. He add ed that people with children would love to live in Fountain Hills but there are simply not enough activities for the youths. He urged the Council to get this project going and move forth without delay. Mayor Schlum thanked all of the speakers for their input this evening. The Mayor declared a brief recess at 8:35 p.m. and the meeting reconvened at 8:50 p.m. Ms. Bender advised that one more speaker would like to talk on this issue. Evelyn Munn addressed the Council and said this is like deja vu for her because when there was an issue in her neighborhood, the Council (not all of the current members but some) were condescending and ignored the input of the residents and homeowners. She added that she sympathized with the people here this evening because it is the people who make up this community -- they have problems with this project -- and it is time that the Council listens to them. Mayor Schlum declared the public hearing closed at 8:50 p.m. AGENDA ITEM #12 - CONSIDERATION OF A PROPOSED CONCEPT PLAN FOR PROPOSED RETAIL/OFFICE/RESTAURANT USES IN TWO 42' TALL BUILDINGS AND TO ALLOW A 45' TALL THEATER BUILDING WITHIN THE TOWN CENTER COMMERCIAL ZONING DISTRICT (TCCD) AT 16725 E. VERDE RIVER DRIVE. (CASE #CP 2011-06) z:\council packets\2012\r2-16-12\120202m.docx Page 12 of 22 Councilmember Leger asked Mr. Rodgers what the distance is between the condominiums and their property line (the setback) and Mr. Rodgers responded that it is approximately 25 feet off the property line. Councilmember Leger asked what the distance is from their property line to the last bay of the parking area on the south side and Mr. Rodgers replied that it is another 25 feet. Councilmember Leger stated that if they were to take a lane of parking, it is his understanding that parking space is 19 feet and the roadway is 20 feet -- he asked if that was correct. Mr. Rodgers advised that the depth of the parking space is definitely 19 feet and he believes the roadway is a little wider than that. He added that the drive aisle is 26 feet wide. Councilmember Leger said that they are talking about 100 feet. He added that he heard comments tonight about a 2008 that was not feasible and stated that the plan was feasible and passed by a unanimous vote. He added that over the last week he went back and looked at the original plan to determine what was different about that plan versus this plan that has created so much concern for the residents in that area. He advised that in the 2008 plan, the parking lot was pretty much where it is being proposed today. The only difference is that they had an art walk that he thinks was a little wider and it was considered a buffer -- and that art walk was included in the plan. He said what he is trying to do here is be responsive to what the residents are saying and a lot of what he has heard has something to do with the buffer, the green belt. He added that if they were able to remove one lane of pa rking (approximately 49 spaces -- and as stated daytime parking is 58 spots) they could gain 40 more feet if that is doable. He stated that he is bringing this forward as a starting point in terms of being responsive to the residents' concerns. He advised that he was involved in the 2008 plan for two years and the only reason that plan went away was because the lending industry was faced with an economic crisis. Councilmember Leger further stated that if they move in this direction there is a higher feasibility that this could be successful because they are talking about a smaller, condensed plan. He pointed out that 12 acres were approved in the past and this is a much smaller plan. He added that he respects what the residents are saying. He explained that the reason the art walk was taken out by the developer was because of a conversation that took place with the develope r to basically say "move that away from the developer" and the Town took responsibility for that. The Town could get the art community, the Greening Committee and the Urban Garden people involved to make that all work rather than just have a contract to slap up some little walkway (he is not sure they would do it that way but he is trying to look at both sides of this). He added that improvements to the streetscape on the Avenue were also taken out of the plan because the Town wants to get involved in that -- they want to design that when it is necessary. He stated that he is just throwing out that idea as a possibility. Councilmember Brown commented that he certainly understands everything that has been talked about this evening and as far as the dust control, Maricopa County now has an extremely strict dust control plan that is strictly regulated. He referred to the parking lot that was circled on one of the slides displayed in the Chambers . He stated that if they were to eliminate the 43 feet of asphalt and the concrete curbing that goes around it and leave the parking aisle and construct a six foot wall on the south side of the island they would then be 130 plus or minus feet from the nearest condominium and they could save the money for the asphalt and the curb, which would probably pay for that fence. He added that then they are down to building a sidewalk. He requested input relative to this idea from the developer. Mr. Fackler said that the only issue he has as far as the parking is that the 58 spaces (extra) that they show is for the overall Phase 1A and Phase 1B. He stated that his only concern is that they are getting a lot of feedback from the community that they don't have enough restaurant space or service space included in the proposed development. He added that the caveat would be until they redo those parking calculations and the traffic study they don't have a solid answer. He added that he does not have a problem conceptually with what is being proposed but he would like to clarify that along the edge of the parking is essentially the six foot wall -- there is a retaining wall because the parking lot is actually cut into the slope of the hill. He noted that even though the art walk is at natural grade from the Community Center it drops approximately eight feet down to Verde River Drive and along that edge there is a retaining wall and the parking lot is cut into the grade of Verde River Drive. He added that when people are sitting in that parking lot, their lights cannot shine into the adjacent property because of that retaining wall (there would be parking up against that retaining wall). In addition, there will be trees and shrubs built in the art walk when the Town does that. The 50 feet of setback buffer is currently between the edge of the parking lot and the nearest condominium z:\council packets\2012\r2-16-12\120202m.docx Page 13 of 22 and the lower levels of those condominiums are about five feet below that natural grade. On the other side of that natural grade there is about six feet so in all likelihood the residents would not even see the parking lot let alone any lights shining into their windows. The upper floor condominiums would be looking down on the parking lot but they are talking about a parking lot that by ordinance will have about 90 trees in it where there are no trees now and it is below grade. The visual impact of what they are talking about is extremely minimal since there is a significant buffer planned even before the Town builds its art walk and puts in enhanced landscaping. They are building a detention wall and putting 90 trees in the parking lot so a lot of that gets mitigated. Mr. Fackler noted that the parking lot will have underground detention so all of the water coming off of the buildings and the parking lot, even off of a portion of the Town's current parking areas, will flow through the parking lot into a detention area. With a major storm, the detention area would fill up and over the next 36 hours would "bleed off" into the Town's existing storm sewer and ultimately into the Town lake. He also discussed the Dark Sky Ordinance as it relates to the parking lot and said that he likes the lights that are used out on Avenue of the Fountains -- all down light and heavily shielded -- and the same type of lighting would be used here. They are not talking about any up lighting coming off the parking lot. A big issue is the grade difference; they are essentially cutting into the side of the hill to bring the parking in and grade the parking for drainage -- they are also going to reduce the overall height of the building. The theater building gets reduced off the back of that -- they cut into eight feet of that in order to keep the building grades down. They need reasonably flat floors in buildings and they are responding to that issue as well. Mr. Fackler further stated that a lot of concerns were brought up this evening and he would like to thank the residents and homeowners for their comments. He emphasized that the plan that they are proposing to build now is the same plan they proposed to build two years ago but unfortunately the financing fell apart at that time. The plan is now put together and they are ready to move forward -- the larger project will not be built by them. The 155,000 square feet will probably drop down to about 127,000 square feet and that is not all in one building, it is in five buildings. Mr. Fackler also talked about a traffic study and reported that two previous studies were done, the last in 2009. The Town marked it up because they have some concerns with the study and when they resubmitted the project they thought they were just resubmitting the traffic study. The Town Engineer wants more definition included in the study and they have agreed to do that. They will be using all the traffic counts from the 2008 study so they should be able to get it done in very short order and get it back to the Town so they can resolve any issues as they relate to off-site mitigation (they will work with staff and the Traffic Engineer). He noted that before they go vertical they will be out there moving dirt. The Development Agreement says this must be done before they start putting up walls (the traffic issues must be resolved). Mr. Fackler discussed jobs and sales tax and said they project about 320 to 350 permanent full-time jobs resulting from this project and some part-time jobs as well. This will be major sales tax generator -- they see this job as a $3 to $4 million net present value boom to the Town's bottom line (fees, sales tax, et c.). There is significant revenue impact for the Town. Mr. Fackler thanked the Town for working with them -- they are nothing if not tenacious and have been working on this project going on five years now and been through numerous Town Managers and a few Councilmembers as well. They have received great cooperation from the entire community and have spent the last 18 to 24 months negotiating with members of the Council and key staff members on how to put this together and how to mitigate the adjacent property issues as best as possible. He said that he really believes that they are there. They have already suffered about two months' worth of delays (holidays, site plan issues) and to further delay this would definitely impact them, mainly because they are cutting into the prime time for theaters -- next fall, next winter is prime time for opening these theaters. He noted that the theater operator, Frank Hafar, is a community-based theater group and four screens will be available for premier movies (they don't make any money off of those -- the movie houses take all the proceeds for the first three or four weeks and then they move into the secondary theaters within the complex that contains another four screens), and then the last four screens that Mr. Hafar is talking about building have some flexibility -- in fact, the main theater will have a stage so the possibility of live performances does exist as well as art films -- those are all possibilities. He emphasized that being a community-based theater he is looking to cater to whatever markets are available so they are really trying to design a theater that caters to the market in Fountain Hills and surrounding areas. He indicated his willingness to respond to questions from the Council. Mayor Schlum thanked Mr. Fackler for his comments. z:\council packets\2012\r2-16-12\120202m.docx Page 14 of 22 Vice Mayor Dickey commented that this is a really challenging issue and part of it has to do with defining the Council's role. Some people said this evening that the Council could try and figure out if something is feasible or not and said they know that everyone has different opinions about that. It is difficult when you know there have been studies in the past that showed a movie theater would not succeed with that many screens (mileage, ticket prices, demographics and things like that were included in the studies that don't totally guarantee success). She stated that whether it is the Council's role to decide she is not sure but they do have a certain amount of flexibility to talk on some of these issues. She said that one of the things that occurred to her that is different from before is when they did the plan in 2008 it was before they did the Downtown Vision Plan with the Swaback Group and that was very well vetted. Ultimately the Council, in December of 2009, passed a resolution that accepted the visioning plan and the south end, that has been talked about, was proposed to have some green space and a park and mixed-use residential, which is there. The Theater District (the west end) was over by Bashas. She noted that private property is being bought by a private enterprise so that can't just say "hey, go over to Shea." She said she does have a problem with the incongruency with the area in the downtown plan because it was clearly spelled out what this south end should be. Part of what would mitigate that would be obviously a green space and a park so she hopes they are not dismissing outright what Councilmembers Brown and Leger were talking about -- trying to create a green space in that area, which would ultimately be an art walk or something like that. She noted that everyone here obviously accepted the Swaback Plan and so she would be interested in hearing how everybody justifies that to themselves and help her get there. The Vice Mayor said that Mr. Fackler mentioned that the traffic study had to be done before they go vertical but it was her understanding that it had to be done prior to occupancy. She said if it is before going vertical that is a little more palatable. Town Attorney Andrew McGuire clarified that there are two pieces -- there has to be a solution arrived at prior to them going vertical and implemented prior to occupancy. Vice Mayor Dickey stated that the study would then be done before they go vertical and it would lay out what they have to do and Mr. McGuire concurred and said that the study would be agreed to and complete d prior to them going vertical and then the implementation of those changes would have to occur prior to occupancy. Vice Mayor Dickey asked if the Council could obtain copies of the study (would they be able to approve the hiring of whoever bids that study). Mr. McGuire replied that they have a study already from the developer so it is either that study or a new one and if that is done it will be "on their dime" one way or the other. He added that as long as everyone is agreeing to what the solutions are he doesn't believe it matters who hires the consultant. It is the developer's responsibility to pay for and provide the study. Councilmember Elkie stated that he believes there was some discussion during one of the meetings relative to the fact that the Town would be intimately involved as far as traffic studies that are going to be done. He added that the developer will be paying that cost but the Town would certainly have a seat at the table during that discussion. He asked if his recollection was correct. Mr. Fackler agreed and said that essentially there will be a scope of work meeting with Kimberly-Horne and they will use that firm because they have done everything else in the past (the previous two studies). He added that they will sit down with the Town Engineer, the firm, and put together a scope of work for the company and a timeline. They will go out and do the work, come back and whatever recommendations they bring forward will be discussed at sit down meetings to resolve who is going to do what and when and resolve any issues to arrive at a successful and agreeable outcome. Vice Mayor Dickey said that this is actually the first time they have all been here to discuss this and she hasn't been in any of the meetings so she would like to know whether a Camelview type theater had been considered (was there a reason why they are so motivated for a 12-screen theater). She commented that when you go to Camelview the parking is hard and people go there specifically because it is a certain type of movie theater and if she goes to Pavilions or something, they are not really that filled up. She asked if there was a reason why this is the better way to go. z:\council packets\2012\r2-16-12\120202m.docx Page 15 of 22 Mr. Fackler responded that he knows Dan Harkins really well and worked with him in Tempe for many years. He owns two theater complexes that he knows he is going to lose money on but they round out his offerings Valley wide - - he views Camelview purely as an arts film location. From the standpoint of putting together a theater complex in Fountain Hills, first -- do you do second run movies rather than first run? Frank Hafar and many others do not do second run theaters, those are a totally different mix and totally different type of operation. Mr. Hafar approached this as building a first run, premier, community-based theater complex with four screens dedicated to premier films, four screens would be the backup for moving those films over after they are done with their premier films to make room for the newest ones and the other four for the most part are purely market. He wanted fourteen and we moved him down to twelve and he wants to make sure that he does not get built out of the market by some other complex coming in once he has proven the market and is doing well. He wants to make sure that he has twelve screens and someone else won't come in and build another twelve. If he has six screens he believes that he could very well get built out of the market. He doesn't feel that running a first-run movie theater should contain less than twelve screens (he doesn't feel he can make that work). The Vice Mayor referred to the four purely market screens and said Mr. Fackler mentioned that there will be a stage on one that could possibly be used for live theater. She asked if it was possible that it could also be used for educational purposes, planetarium types of things, etc. Mr. Fackler replied that it really comes down to what works for the Town. He noted that the stage theater is their largest theater and that is where people will see the blockbuster premiers but working it into a schedule so a community play or other entertainment can take place on that stage are all possibilities but detailed discussions have not taken place. He noted that although it will have a stage it is not a performance theater; it is a movie theater with a stage that could host those types of events. Mayor Schlum commented that Mr. Fackler had addressed many of the residents' concerns in his presentation and during their break he heard from many of those Village at Towne Center residents who said they wanted the developer to know that they are not against the theater (they did focus primarily on the parking area, environmental issues and the wall). Mr. Fackler stated that as they move forward with the redesign of Phase 1B and the traffic study over the next two to three months, they don't want to overbuild parking either. They will definitely take a look at the Council's suggestions offered this evening (including doing away with one row of parking). He said that if they look at the plan they will see that is not the typical double row of parking, it is a single row of parking in a wide aisle, and he wouldn't mind reconfiguring that. They did have the land to put the double row in there but they will take a look at what the final mix of this project is going to be and the feedback from the community (they would like to see a lot more food service rather than just pure retail here). They will work will staff (the parking model is somewhat fixed but it is not totally rigid and he thinks there are things that they could do with it). He also wants to take a look at the traffic study. They will be bringing Buildings B & C back for a revised concept and they will work with this at that time. Mayor Schlum noted that the closeness of the cars is an issue and the vastness of the parking area. Mr. Fackler stated that he does not believe the residents will see those cars. The Mayor added that a preference is for a sufficient art walk protecting the view corridor and said that parking lots do that, particularly with trees. He added that a wider space is desired there and they want to do this right (they have heard a lot of very good feedback). He concurred with what Councilmember Leger brought up but they can't expect to make a lot of changes here tonight and come up with something that everyone will be happy with. He stated that everyone did a nice job but the parking area is a sensitive issue that needs to be worked on so everyone feels comfortable with it. He added that he doesn't know if they are able to approve the Concept Plan without having addressed the exhibits (the Development Agreement contains so much) and asked Mr. McGuire for input as to whether he clearly explained that the Council wants the art walk included and more space to provide additional cushion (and perhaps address a wall). He asked whether Mr. McGuire would advise doing that tonight (proceeding based on those additional items). Mr. McGuire advised that he is always reluctant to revise a contract on the dais, especially one they have worked this long on. He noted that this particular change will be on one map which is to alter one aisle and one row of parking but z:\council packets\2012\r2-16-12\120202m.docx Page 16 of 22 it is included on a lot of exhibits to this agreement and in some text so i n order to make sure they catch all the places and make the correct changes (and if there are any more he would like to get all those back to the Council as well in a final form). He recommended that this come back in front of the Council with the propose d changes. Councilmember Hansen noted that people are passionate about the movie theater and said it is an exciting idea and great to discuss. She added, however, that she believes the Vice Mayor brought up a very good point about the Visioning Plan. She recalls the theater being over more where the Chamber of Commerce is and Bashas as well. She wasn't on the Council the last time this issue was approved but if she had been a part of it, she would have expressed concerns about using the Town property to the south of the project as a parking lot. When you look at the boundary that curves in by the condominiums it is kind of angled and when they acquired that property, it was MCO at the time, they agreed to re-route the condominium project in order to leave what they call the Linear Mall, which was really taking the place of the longer Lineal Mall that was originally planned to go all the way down to Saguaro. That was part of the vision at that time and it was always looked at to be what is now the Cen tennial Circle, a nice green area that would be the connectivity between the Community Center buildings and the rest of the downtown. She has always had heartburn about turning that into a parking lot. The developer is really only providing 210 new space s and all the rest is existing property on the public streets and the Community Center property and what sh e is calling the Linear Mall has 169 spaces on it and it just seems like maybe they could come up with that 169 from some other place. Councilmember Hansen further stated that the idea of approving this when there are so many potential changes – such as are they going from three stories to two stories for sure, are they adding more restaurants for sure and how does that impact the parking -- appears premature at this time. She added that the Town Engineer's report reflects that the traffic study was pretty strong and he said it is a major issue. She said that she is hesitant to go ahead until they finalize that traffic plan because it said the 2009 plan was approved by staff and there was some trepidation with the plan at that time. She feels as though there are some balls in the air that need to be taken care of and decided upon before they actually approve something. Vice Mayor Dickey said that is what she was wondering -- whether they wanted to bring it back -- but she just has a couple of other items. She advised that she does not understand the reciprocal parking agreement surviving the development and asked for an explanation. Mr. McGuire advised that the concept of the reciprocal parking agreement is if the theater goes away the agreement spells out a number of scenarios whereby the theater would be re-established for other uses. If other uses are re- established that are not as parking intense as this, it would be modified/reduced down to the extent necessary to serve the building. In the original plan everyone is pretty comfortable the size of that building could not be accommodated by the parking just next door to it regardless of what it i s. If the theater went away and the reciprocal parking went with it, it could kill any reuse if there was no parking with it so that is the means by which the reuse could be facilitated. In response to a question from the Vice Mayor, Mr. McGuire stated t hat the traffic study would not affect the amount of parking needed. Vice Mayor Dickey referred to the Building Permit section (Page 4) that talks about "no grading permits will be issued by the Town to the developer until necessary assurances are received and approved by the Town Attorney and the Town Engineer and the developer has either taken ownership of the property or obtained and delivered to the Town written authorization from the property owners granting the authority" and asked what would make th at happen (that they wouldn't be the property owners?). Mr. McGuire replied that that provision was anticipating that there would be on -site grading prior to the time of closing. The closing has to happen within 60 days of the agreement being executed to allow for any pre-grading work out on the site if the necessary assurances have been received and they haven't seen anything on that. He said that he is comfortable with the language but has not seen any sort of assurance yet. Vice Mayor Dickey referred to the Parking Agreement (Page 2, #2) reciprocal easements and asked if the Town could "share their share." It looks like there are times when they may end up not having enough parking for one of their own functions and asked what they would do at that point. Do they have a right to use their own parking? z:\council packets\2012\r2-16-12\120202m.docx Page 17 of 22 Mr. McGuire responded that the entire reciprocal parking agreement is based on the concept that the parking lot is used during different time periods. During those times when there is an overlap, there could be a parking crunch. An event at the Community Center coupled with a peak night of movie theater use will put a strain on those spaces that are closest to both those uses. The Vice Mayor said the agreement says "the benefitted party" versus "the granting party" but they are sharing everything so how do they know who is who. Mr. McGuire stated that "the benefitted party" would depend on which piece of property being talked about . The only reserved parking spaces allowed are the spaces located just to the east of the building for law enforcement uses outside of the model and small groups of spaces for employees of the movie theater. Everything else is first come first serve. The only time a reservation would be allowed is during a large Town event -- some movie spaces could be reserved in the lot right next to it so the movie theater would have parking there for a major event. Vice Mayor Dickey referred to temporary relocation of easements and said if they had a water leak and couldn't use their parking or if they are going to construct or do something different (like with the art walk) would they ever be in the position of having to spend money to use public property. She said she doesn't expect an answer now but it is another reason why she believes they are not ready to go ahead with amendments at this time. Mr. McGuire stated that the temporary relocation of easements was a lot more important when this was a multi -phased project going east of Verde River because there was always going to be a time period when construction would be happening nearby. In this case it is less likely because the improvements that would impact around the Community Center will be done in the first phase. Councilmember Leger said that this evening he heard on a couple of occasions that the Town is donating land to the developer and clarified that the Town is maintaining ownership of the property (in fact, all of the parking spaces that will be paved will be public parking to be used for overflow from the Communit y Center and during the Great Fair). He added that the interesting part is that the developer is putting that parking lot in at their expense, not the Town's expense. The Town is actually receiving a benefit. He added that with respect to the view corri dor, he thinks that if they can make the adjustments that they recommended this evening there will be a view corridor and a buffer. It will be exciting and it will connect to an urban garden -- a nice connection between the theater, the Community Center and all the amenities. He said he believes that can be done very well if done correctly. He discussed the Vision Plan and noted that he sat with Vern Swaback in his office and was very impressed by him, a world class architect. He helped the Town out on an incredible project and every time they met to talk about the Vision Plan he said it is a Vision -- they are all moving parts -- don't get hung up on that. When we would ask him where we start and where we go with this he would say things like if you get an investor who is willing to make an investment and it works within the context of the total vision take a close look at it. And we are taking a close look at it. He noted that a vision is not se t in concrete and this evening they are looking at a plan and, as stated earlier, he cannot tell a developer to do or not do a plan but what they can do is look at the feasibility, the numbers, the model, what it will add to the community, ensure that it is part of their vision plan, listen to the residents and try to come up with something that works for everybody -- and that is what they are trying to do. Councilmember Leger further stated that with respect to parking he thinks it would be a good problem in this Town to have a parking problem downtown. He added that if there is a wall up so the residents are not impacted by the lights that would be an even better solution. He said that they have put some possible ideas on the table and he knows that the developers and investors are on a timeline so he asked if this is something they could just add stipulations to and feel comfortable with. Mr. McGuire responded that it depends on the extent of the changes. If the extent of the changes is to remove an aisle of parking and to make all necessary changes for that, they could probably handle that -- they just don't want to change the language on the dais tonight. It would be something that prior to the Town Manager being authorized to execute the agreement those changes would have to be made. If it is a laundry list of changes that need to be made then he wants to make those changes and bring the agreement back before the Council for their review (see what the text is before the Council is required to make a call on it). z:\council packets\2012\r2-16-12\120202m.docx Page 18 of 22 Councilmember Elkie commented that there has been some discussion about the traffic study that was conducted in 2008 and using those numbers and asked Community Services Director Paul Mood what that means logistically, as far as the bottom line -- how that would affect the Town using the 2008 numbers versus using numbers today. Mr. Mood addressed the Council and said that to do a brand new traffic study they would have to hire a consultant to come out and do traffic counts and they would have to wait for that (would probably add at least a month to the project). He said that the developer asked to use the 2008 traffic counts, which in reality will be higher than what they are today so it would be a benefit to the Town to use the 2008 traffic study results. It would also be a benefit to the developer because it would avoid further delay in the process. Councilmember Elkie commented that he has listened to and appreciates the comments from the residents and he appreciates so many of them coming out and expressing their views this evening. He stated that in its most basic of terms they have a developer who is saying we want to develop your downtown and spend millions of dollars doing so. This is something that the Town has been looking for for a long, long time. He said that he understands some of his fellow Councilmembers’ concerns with respect to parking, the view corridor and some other issues but tonight is not the time to go through the contract line-by-line. These things should have been vetted out earlier. Staff has been working on this and presented the Council with information and this isn't the first time they have seen the Development Agreement and Concept Plan. Many times it is the public's perception that government gets in the way and stalls things and in some ways he has felt that frustration in working as a Councilmember but there is a process and he respects that. He stated that he thinks they need to move forward on this, they need some progress and development; they need to make a decision. He hates to put this on the back burner for them only to hear later on that financing is no longer going to be approved. He does not want that on his shoulders -- that because of a delay due to some issues that he believes can probably be worked out after the fact -- this deal could not move forward. He added that he is in favor of moving forward on this because they desperately need some progress downtown and this is responsible. He stated that he agrees with Councilmember Leger's comments regarding Vern Swaback -- that the Vision Plan is just that, it is a vision and it can be fluid and be moved around. He noted that this does fit within the Vision Plan and he supports this proposal. Mayor Schlum noted that the Town Attorney has heard the Councilmember's comments, a number of them rel ated to the parking area, and added that staff is recommending approval with stipulations. He stated that most of them would like to move forward on this and have more life downtown. He asked how they do that in the smartest way without making changes tonight that might ultimately put them in the wrong direction. He pointed out that Mr. McGuire had mentioned stipulations that could be made and asked if that is the way they should proceed (how can they make this happen?). Mr. McGuire responded that so far this evening the only thing he has heard a lot of comments on is the southern-most edge, losing the drive aisle and one row of parking and reconfiguring for that. He stated that if that is all they are talking about that is fairly easy to handle -- it is just going to require that they have some time after tonight to put the agreement in final form before it is signed. He added that approval subject to that is fine but as he said before if they have a long laundry list of other items he needs to know that because he can't tell them yes let's go forward with this tonight and the motion ends up containing seventeen stipulations. He just needs to know the scope of what they are talking about and if what he just mentioned is all of it, then this is a "piece of cake." Mayor Schlum referred to the Vision Plan and said that it is clear that some definitely didn't hear when that theater was drawn up that it would be moved (from the location close to the Chamber). It had been said that the theater could be put in many different places. He added that they need more residential downtown and that is why they went with the mixed use zoning to allow a lot of those different uses. He agreed that it is not set in stone (the vision) and it is a big building so they have to exercise caution in moving forward. He said that some of the other items get addressed through the building plan process (construction activity happening so close to the residential buildings, etc.). He added that they need a larger set back, a larger area, which is important for many reasons, and the traffic plan all spoken to (they want to make sure they don't have cars backed up regularly) and, as Councilmember Leger said, if they are short of parking that would be a very nice thing. He stated th at he is excited about the proposal and it looks like the developer will get the funding needed to move forward. He is even more excited about the fact that once the theater is built, particularly during the first year or two, there are going to be a lot of people going there because something new always draws that. He is excited about what happens after the theater, what is going to happen east of the theater and the rest of downtown. He noted that there are a lot of reasons to leave Fountain Hills, and the lack of movie theaters is one of those reasons. Now there will be less reasons and Target too helped that a great deal. He agreed that parents z:\council packets\2012\r2-16-12\120202m.docx Page 19 of 22 don't want their children driving out of Town to go to the movies and he would like to see a lot more things in Town for the youths. He added that the seniors as well and everyone in -between them will also get enjoyment from this venue. He said that he would be comfortable with what Mr. McGuire said -- he doesn't see a lot of items to be addressed beyond what they have already talked about. Vice Mayor Dickey noted that there were a couple of other items that were mentioned that may warrant changing -- the height of the buildings (two stories instead of three), the fact that there might be more restaurants than offices, which might affect the traffic study and the buffer. She stated that the restaurant part is attached to the buffer part because they may not be able to remove the parking spots if they build more restaurants. She is not sure how that could be included as a stipulation. She further said that she believes they received a lot of new information this evening and the P&Z minutes also helped. She commented on the large number of e-mails the Council has received relative to this issue and they received significant input from the residents at the meeting this evening. She stated that she had questions that had to be answered and she too wants a movie theater but she also is cautious and feels responsible for the Town's assets as always. The idea that now they are in a time crunch is a little unfair to the Council because this is the first time they are really discussing this -- they have had a couple of sessions and other Councilmembers have been very much involved in this but some have not been so she's not sure it is enough to make her be against it but she kind of feels rushed and she pointed out that there are still issues that she feels exist. She really wants the buffer and if they don't know that they will get that then she would rather continue this until they find a way to have that happen. Councilmember Contino stated that he thinks this is going to be a jump start to bigger and better things in the community and that they have beat this thing to death tonight. He said that he thinks they need to call for the question and get it over with, one way or the other. Councilmember Hansen noted that this was expedited from Planning & Zoning; generally they wait to get approvals from P&Z before they hold a public hearing. The whole idea of a public hearing is to allow the public to share their thoughts and perhaps bring up some things that Council hadn't thought of. They did hear some additional ideas tonight. She added that she agrees with the Vice Mayor about feeling rushed and backed into a corner and thinking this has to be done tonight -- there is nothing wrong with deliberating and discussing it in public because they certainly do not want people to think that they have their minds made up before they come to the meeting. Mayor Schlum commented that as discussed this plan has been discussed many times before and maybe not all of the Councilmembers were here but it was approved previously. He said that it has also been approved by P&Z and vetted out. He added that with a project this large he doesn't think any of them will be completely comfortable nor does he think they should be -- this is a big decision and a big deal. They are not going to be 100% comfor table with something of this magnitude. He said that he would call the question as requested by Councilmember Contino but there is not yet a motion on the floor. He asked if there was a motion at this time or do they need to clarify the stipulations (the setback, the additional row of parking removal, making sure that headlights do not impact the adjacent residents). Mr. McGuire noted that in addition there are the stipulations from P&Z -- the staff report includes them so everything carried over. The Mayor said he wouldn't talk about two/three-story buildings at this time -- the theater is largely going to block out the height of the buildings. He would like to see three story buildings but that is really a developer decision, they have to get the funding and make sure it works for them. He added that if they have a problem with traffic it will occur during busy events and that probably is not a bad problem to have. Mr. McGuire advised that he believes the way to address the concerns the Council has with respect to modifications to the Concept Plan for building on the front end, what they are calling Phase 1B in this case, any of those things can , with a simple tie in, require any changes to the plan presented tonight to be brought back to Council. He added that no modifications would be allowed without Council's approval and that gets them past all of those pieces. With respect to the parking modifications, they could simply have the stipulation that the Development Agreement and its exhibits be modified to handle removing the parking as discussed in the meeting. He said he thinks everyone is pretty comfortable with what they are talking about here and they could put that into text with the appropriate mitigation for any type of off-site issues (headlights, etc.). He stated that if the grade is what they think it is going to be it is not going to be a problem but they can address that as well. z:\council packets\2012\r2-16-12\120202m.docx Page 20 of 22 Mayor Schlum commented that they are talking about a motion to approve the Concept Plan as discussed subje ct to the stipulations in the report as well as those issues outlined by the Town Attorney and listed above. He asked Mr. McGuire if that is an adequate motion and Mr. McGuire replied that he thin ks it is going to have to be because he is not sure that he can repeat it. Councilmember Leger MOVED to approve the Concept Plan as discussed subject to the stipulations in the report as well as those issues outlined by the Town Attorney and listed above and Councilmember Elkie SECONDED the motion. The motion CARRIED by majority vote (6-1) with Councilmember Hansen voting nay. AGENDA ITEM #13 - CONSIDERATION OF RESOLUTION 2012-01, ADOPTING A PROPOSED DEVELOPMENT AGREEMENT RELATING TO PUBLIC IMPROVEMENTS AND RETAIL/OFFICE/RESTAURANT/THEATER USES LOCATED AT 16725 E. VERDE RIVER DRIVE. (CASES #CP 2011-06 AND #DA 2011-02. In response to a question from the Mayor, Town Attorney Andrew McGuire stated that as long as the motion is to authorize the Town Manager to execute the Development Agreement after all the modifications have been made he believes they will be covered. Councilmember Elkie MOVED to approve Resolution 2012-01, adopting a proposed Development Agreement for the Avenue related to public improvements, shared parking and retail/office/restaurant/theater uses on property located at 16725 E. Verde River Drive and authorizing the Town Manager to execute the Development Agreement subject to all of the changes discussed in the previous motion and Councilmember Contino SECONDED the motion. The motion CARRIED by majority vote (6-1) with Councilmember Hansen voting nay. Mayor Schlum thanked everyone for their hard work on this very important issue for the entire community. He also thanked the citizens for their input and said he hopes that the citizens feel that they were heard and listened to. AGENDA ITEM #14 - CONSIDERATION WITH POSSIBLE DIRECTION REGARDING CIVIL PENALTIES FOR TOWN CODE VIOLATIONS. Town Attorney Andrew McGuire addressed the Council relative to this agenda item and said that in prior Code amendments, when they modified the old language they have been trying to decriminalize certain activities that are not worthy of misdemeanors. He stated that staff is looking for direction as to whether or not the Council wants to come back with a Code amendment in the near future to allow for virtually anything in the Town Code later to be created as either a civil or criminal penalty. He explained that right now the default is a Class 1 Misdemeanor and that amounts to six months in jail and $2,500 per offense and this includes things like sitting on the sidewalk. He noted that this does not modify anything; it only puts in place a mechanism by which the Council can choose later to designate whether offenses are civil or criminal. He added that if everyone is comfortable with that, staff will bring back an ordinance to that effect at a future meeting. There were no citizens wishing to speak on this agenda item. Councilmember Dickey MOVED to direct the Town Attorney to bring back an ordinance for consideration at a future Council meeting as outlined above and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #15 - CONSIDERATION OF AN EMPLOYMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND KENNETH W. BUCHANAN FOR THE POSITION OF TOWN MANAGER. Mayor Schlum commented that there is no Staff Report and they have worked on this for some time. There were a great number of applicants and two finalists were selected -- all the applicants were very well qualified and capable of performing in the Town Manager's capacity. He said that they are here to consider moving forward with a contract for the position for Mr. Kenneth Buchanan and recognized Mr. Buchanan and his wife Deborah who were present in the z:\council packets\2012\r2-16-12\120202m.docx Page 21 of 22 audience. He stated that the agreement is before them and asked Mr. McGuire if they needed any particular motion on this. Mr. McGuire responded just a motion to approve. Councilmember Contino MOVED to approve the employment agreement between the Town of Fountain Hills and Kenneth Buchanan relative to the position of Town Manager as presented and Vice Mayor Dickey SECONDED the motion. Ms. Bender advised that two citizens wished to speak on this item. Linda Bordow addressed the Council relative to this agenda item and said that she is participating in the Fountain Hills Citizens Government classes and they are fabulous and she would like to commend various members of staff (Julie Ghetti and Lori Gary) for their great work in planning and conducting the classes. She noted that one of the first classes was about Council and Manager and drilling down a little deeper on her own she had a couple of questions. She stated that she did not see a public vote on the Town Manager's position and she has a concern that it could be a violation of the Open Meeting Law. She asked if it is proper to not have a public vote on this -- is it done in Executive Session or how is that done? She added that she is just learning and wanted clarification on this. Mayor Schlum said that Ms. Bordow makes a good point and a couple of people have mentioned that. He added that compliance with the Open Meeting Law is extremely important and asked the Town Attorney to respond to Ms. Bordow's question. Mr. McGuire advised that the Open Meeting Law contains specific exemptions for items to be discussed in Executive Session, one of which is the discussion of any contract/personnel items and it allows the Council to give direction in Executive Session. He noted that through some case law they have had to jump through a few extra hoops but on January 19th there was an item on the Council's agenda that directed the Town Attorney to go forth and negotiate a contract that was discussed in Executive Session. He said that that is the only way that they can do it because discussing the parameters of the contract terms during open session would defeat the purpose of the whole negotiation process. He added that the contract, however, is not valid until the Council votes on it tonight and tonight's action actually appoints Mr. Buchanan to the position of Town Manager. The second speaker, Audra Thomas-Koester decided not to speak at this time. The motion CARRIED UNANIMOUSLY (7-0). Mayor Schlum welcomed Mr. Buchanan to his new position as Town Manager for the Town of Fountain Hills and asked him to come forward so the citizens can see their new Town Manager. The Mayor also stated that they have to "tip their hat" to Julie Ghetti who has done a tremendous job and still has another month to go. He thanked Ms. Ghetti for her hard work. Mr. Buchanan thanked the Council and said that he is glad to be here this evening and it is good to be back in municipal government. He said he has some transition to do as far as where he is at (selling his home and getting everything squared away) but he is looking forward to moving to Fountain Hills and beginning his new position on March 5th. Mayor Schlum stated that Mr. Buchanan will love the staff and Ms. Ghetti will be there to assist him. He added that it will be a challenge and a great opportunity for Mr. Buchanan to serve in the position of Town Manager for Fountain Hills. He noted that the citizens are passionate about their Town and he is sure that both he and his wife will love settling into Fountain Hills. AGENDA ITEM #16 - COUNCIL DISCUSSION/DIRECTION TO THE INTERIM TOWN MANAGER/FINANCE DIRECTOR JULIE GHETTI. 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. z:\council packets\2012\r2-16-12\120202m.docx Page 22 of 22 AGENDA ITEM #17 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT ACTIVITIES BY THE INTERIM TOWN MANAGER/FINANCE DIRECTOR JULIE GHETTI. Ms. Ghetti asked if the Council wished her to follow up on the bird issue that was raised earlier in the meeting by a Town resident and the Mayor said that they did. He encouraged anyone interested to share their ideas about this issue. AGENDA ITEM #18 - ADJOURNMENT Councilmember Contino MOVED to adjourn the meeting and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 10:10 p.m. TOWN OF FOUNTAIN HILLS By __________________________ Jay T. Schlum, Mayor ATTEST AND PREPARED BY: _________________________ Bevelyn J. Bender, Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Executive and Regular Sessions held by the Town Council of Fountain Hills in the Town Hall Fountain Conference Room and in the Town Hall Council Chambers on the 2nd day of February 2012. I further certify that the meeting was duly called and that a quorum was present. DATED this 16th day of February 2012. _____________________________ Bevelyn J. Bender, Town Clerk