Fountain Hills Approves Park Place Permit Extension Under 2018 Codes; Orders Development Agreement Renegotiation as Condition

I'd like to call this special meeting to order. Town clerk, would you please take roll call? Mayor Fidell, present. Council member Earl, present. Council member Calvianis, here. Council member Watts, here. Council member Larby, here. Council member McMahon here, mayor, and the vice mayor is absent today. Thank you. Town manager, would you uh like to start us off? Sure. Thank you, mayor.

Um, this meeting tonight was called at the direction of the mayor for discussion regarding um the development agreement and association with uh Park Place. There's two items on the agenda. First up, um I'm going to invite uh John Wesley, there you are, John. Um to share a brief timeline, uh on this property and this project and turn it over for any questions. Mayor, council, good afternoon. It shouldn't take too long.

We did want to uh for the council uh and for the public just kind of run through the the history timeline briefly of of this project and it's gotten us to the point where we are this evening and help you as you discuss uh moving forward. So just uh again from the beginning June 16th 2016 the council approved development agreement and land use plan for the development of the Parkplace project.

This uh DA included a development schedule phase one that we see down here on the avenue uh was built along with that established schedule following that approval. The schedule that was adopted with that initial timeline shown there on the right and highlighted with a couple of items on the left side. Phase two was to begin construction uh by June 2021, complete construction um by uh June 2022, and begin construction phase three in June of 2022.

In November uh of 2021, the applicant submitted uh site plan review applications for phases two and three. Council approved uh those site plans in April. In May, council approved the contract for third-party plan reviewer for those projects. On June 10 of 2022, uh application was submitted for phase three of uh this project. On June 16th, as noted earlier uh in the the schedule for the uh project as stated in the timeline for the DA, the DA expired due to not meeting that development schedule.

So review halted staff and town and the applicant then negotiated on that and October 18th of 2022, the council approved a settlement agreement and extended the DA for one year. Uh so then in that month uh we received the builder permit application for phase two. Uh that proceeded along the review process with reapplications or resubmitts in June, July, August, September as 2023 is when phase two uh building permit was approved.

Phase three continued its review with the recent metals in April, August, September and was approved in a in October of 2023 and was ready for issuance at that point. So the fees that have been uh associated with uh these projects, here's the phase two. These are buildings along the avenue. Uh so standard fees, but uh it doesn't have the typical town building permit review uh fee in here.

as the Schumcoda third party reviewer fees that have been charged to the town and paid for by the town at this point in here. And so for phase two uh almost uh $270,000 and for phase three again you see what the the different fees were associated with that one and totaling a little bit over 26 $280,000. So those permits have been approved and ready for issuance uh subject to payment of the the fees to have them to be issued.

So those uh permits uh being approved when they were uh they're good for 180 days unless they're paid for otherwise renewed. That did not happen. And so on March 11th and March 31st of 2023, those uh permits expired in review because the DA uh was extended for a year or if project uh continued then the DA would continue indefinitely. But so the DA expired at that same time in March of 2023.

In July of 2023, at the request of staff, uh, excuse me, 2020, July of 2023, the applicant requested a stople agreement based on some lending they were trying to secure at the time, and that was approved by the the town in September of 23. Uh, staff met with the developer to discuss extending the expired DA.

that kind of uh didn't move much until June of 2024 when directed by the mayor staff met with the developer and at that point did get uh an approved extension to the DA for one year that also included a statement removing the Estopple agreement that caused some concerns. So in October uh a new revised DA was signed as directed by the mayor that um reinstated the stople agreement but did not further extend the DA from the year set in the June meeting uh June 24 meeting.

So, in June of 2025, the DA again expired. And um back in June, you'll recall of this year, the council uh held a hearing and approved transferring from the 2018 to the 2024 building codes. That was done following a variety of notices. We we emailed all the developers in our database, posted notice several places on our website and noted that those uh new uh the new development codes will go into effect beginning September 1.

On August 14th, the developer send an email request an extension of their previously approved permits using the 2018 codes uh to December 31st, 2025. On September 2nd, the council met and voted to approve an extension of those codes under the 2018 codes subject to a renegotiation of the DA. And so that is the kind of the background that leads us up to your discussion this afternoon. Any questions you have for me at this time? I think we'll hear um do we have do we have speaker cards? Tom Click.

Yes, mayor. We have two Bart Sheay followed by Cecil Yates. Okay. Maybe we should hear from hear from them first and then if this if the council has questions we can entertain those questions. Okay. Afternoon, mayor and council. Good to see you again. Um I thought it was going to be an open discussion, but I understand we just have three minutes. So I'll keep it pathy. Um, as I shared with you all last night and and I know you all just know me as Cecil, you know Bart is just Bart.

Um, but sometimes we all forget kind of what our backgrounds are, what our professional experience is. And I just want to stress to you um share with you Bart Shea on top of building the Tuscanany Hotel and Casino in Las Vegas, award-winning developer for Parkplace, I'm sorry, for Morning Star here in Fountain Hills, uh was the first person in the history of the Catholic Church to sign a deal that gives us uh rights to build senior housing.

Uh myself, as I shared, I've got an extensive background in uh real estate. I sat on the Arizona Department of Real Estate Board as a subject matter expert for eight years. And I bring this up because it has been brought up several times from your town attorney that we needed to be represented by council and we kept saying we don't need council to have a business discussion. Um, but I just want to stress to you we're more than qualified to have this discussion with you all.

Um, I read to you last night. I'm going to read it again. And I I I I wanted a little wrinkle in kind of what uh John said. I don't remember and I just asked Bart a meeting in fall of 2023. Not that that matters. Um but I'm glad you brought up the the developers agreement. I read you the the sections of the estoppel agreement last night. I'm going to do it again. The estoppel certificate if you're not, you know, uh into real estate too much.

It's basically a snapshot in time to confirm for a third party lender what's going on. And our lender at the time was emphatic and had their huge legal team write this up. So this wasn't just Bart and I that came up with this. But it reads as follows. The development agreement is in full force in effect and has not been assigned, amended, or modified in any manner except to stated it.

To the best of the undersign's knowledge, there is no existing breach or default by the developer in the performance of its obligations under the development agreement. And then it says accept and the exceptions were none. Developer has fulfilled all of its obligations under the develop agreement except and again the section is none. The commission and the town council have each approved the concept plan in accordance with the developers agreement.

And then lastly, most important, the developer obtained permits for the construction of buildings BE and F prior to the DA extension deadline. And therefore, the developer is allowed to proceed with the development of phase two and three on the property in accordance with the developer's agreement. If that wasn't enough, and I appreciate appreciate Rachel helping out, at least being the level head in the in the room at the time, and saying, "Let's pretend we don't want to litigate this.

What do we need?" We came up with a reaffirmation estoppel certificate from the town which states notwithstanding anything to the contrary contained in section three of the first amendment the estoppel certificate dated July 17th 2023 is hereby reinstated and shall be deemed to be in full force in effect as of the date of the systoppel. So obviously our position is there's no need to update, renegotiate, resolve, do anything to the developers agreement because we are in full compliance.

And I'm I'm open to having questions or comments or I'll yield to Bart at this time. Mayor, excuse me, mayor, council members, attorneys have Thanks for taking the time to actually have this meeting. So, we're standing here having a conversation over extending a development agreement that in our mind is done anyway. But the reality of this whole thing is are we ever going to build Park Place? Is it ever going to happen? Well, we came in to get our permits extended, which is a very normal thing.

At the same time we extended the permits in Fountain Hills, we also extended permits on a senior living facility in Maricopa. That was done over the phone and staff just said, "Yeah, that's great. Same building, same plan, same everything. We're good." In Fountain Hills, we were all set to have this done and we came to a meeting that we were just kind of blindsided about amending a development agreement we thought was over.

Three days prior to that meeting, my prospective buyers came in and they met with the town manager and the development services director to negotiate plans. Well, what no one from the town did was ask if I was present or have permission or go do this. So, they're sitting there arguing over what they might want to do or maybe want to do or could do inside of the purview of the development agreement and the plans and basically negotiated my deal, renegotiated my deal with the town.

Now, they were just doing their due diligence. The town, on the other hand, had a fiduciary responsibility since I was the other side of these contracts to ask me to be in the meeting, to be part of that meeting because they're negotiating my stuff. Fast forward three days later, council meeting. We're blindsided by the fact that we, the town wants to now renegotiate a development agreement. The buyer showed up in my office at noon the following day and reduced their price by about 30%.

Because of the conflict that we're now experiencing on this. So, literally, we had this ongoing conversation where I'm trying very hard not to litigate, not to not to get involved in any process or problems here. and the town attorney reached out to my literally my business partners to again negotiate a development agreement without notifying me about it, which ironically is exactly what I got Andrew Maguire fired in open session when he did it on phase one with my business partners at the time.

So, I'm a little confused why anyone wants to get in a fight on this ever on this stuff again. We have Well, I read I heard John's narrative. It was a little bit bleak on the explanation of where I was at. We came in for an update and at that point we were waiting for the town to respond to one of our lenders.

I think council member Kavanagh Calvin Aris was in the meeting and that's when we got hit with hey we need to update the development agreement we're going to remove the estop if you don't sign here we're not going to contact your lender on and stuff so there's a lot more to the narratives than the the original submitt that timed us out John kept my submitt delayed by over seven months by telling us we had to amend the development agreement which I didn't think we had to amend but he demanded it we go in that literally to delay it on the prospect of getting through.

So I what I'd like to do, all I want to do on this entire thing, just let's get the permits. Let's go build the project. Everything that's on the plans, everything that's in the development agreement, if anybody wants to make any changes to it, they got to come back to you guys anyway. It isn't like they can just unilaterally make changes to this stuff. I was asked some questions, I think, by council member Watts. Are they going to live up to the deal?

and I'm go I I didn't know how to respond to it. It's a contract. Everything's on the plans. If they want to change those plans, they got to come back through the city to change them kind of stuff. You guys get to see it. If they want to change how it looks, you guys get to see it. They understand that. We had a phone call with uh Chums Kota. They understood how it goes.

So, I don't know where the concept came that we're just going to unilaterally change things and if we can't do that, we're not doing this. That never happened. I don't know how it got to you guys that. But literally, this is the last stand. This is it, guys. If we can't get this figured out today, tonight, tomorrow morning, somehow, some way on this, I know I'm out of time. I let you go a little long. Yeah. Sit down. Anybody got questions? U maybe some questions for staff. Town council.

Do you have any questions? [Music] Councilwoman. Thank you, Mr. Mayor. Um I I think based on what we just heard, um I might suggest we go and back into executive session and further discuss the legalities of um what the gentleman um brought up and call the public. Mr. Mayor, can we can we ask town attorney. Mayor, that's up to you if you'd like to go to exe if you think that executive session is neat.

I thought that many of these issues had already been discussed, but I'm happy to that's up to the that's up to the council. Uh, let's hear from Councilwoman Earl.

I wanted to ask did the town renegotiate any of the or talk about renegotiating the development agreement with the potential buyer or funer that you talked about and if so can you explain that finance partner okay I I believe John could speak to the conversations that were had mayor council member no we did not do that okay um my Next question would be for you John.

Did you did you delay what he tal I just was listening a few things something for seven months and if yes please explain why you delayed what he was talking about for seven months. U mayor, council member, I believe that he is referring to the uh initial uh submitt along with the site plan for some modifications to the D at the time because in discussions with his representative, they had some things that they were wanting to change in the project that were different than what was in the DA.

And so based on those changes they wanted to make, that was the way to approach it was through amendment to the DA. ultimately decided to drop those items and proceed as approved in the DA. Okay. Can I ask another question? I don't want to take a Okay. Sure. Um, can you explain what an estoppel is? Uh, yes. So, an estoppel agreement as he as mentioned, it is a point in time.

So, it's kind of like when you go get a mortgage for your property, you know, when you go to buy a house, your your bank wants to know what your circumstances are on that date and time. So, on September or I'm sorry, on July 17th, 2023, we signed an estoppel agreement saying that the uh that the project was in good standing and that was in only the sole purpose of an estoppel certificate is so that the developer can get lending.

It doesn't elongate, it doesn't change, it doesn't alter any part of the development agreement. It's just a sliver in time just like when you get a mortgage. Mr. Mayor, so can I ask why wouldn't that still be valid with this development agreement? Well, it's a point in time. It's just kind of like if I went to go get a, as he mentioned, a sliver in time. So on a particular date, you've got enough money in your bank to buy a house for instance.

It doesn't mean that in a year you still have that amount of money in your bank. So a new estoppel certificate would have to be issued with each lender you know that you go through or at each silver time. So um obviously we gave the estoppel agreement in 2023 and why there was no funding after that is you know at that point the the the plans were submitted the money was available it just as far as I could understand the permits weren't paid.

So, I've heard that the development agreement, why wouldn't it go with the development agreement more? Is it not good because the development agreement has expired? I'm sorry. How is the estoppel related to an expired development agreement? Oh, so I'm sorry. So, how is that relevant to this conversation? It's not.

So, the reality is is the Estapo agreement is completely irrelevant at this point because the town agreed to save the developer $1.5 million to not have to renew his expired permits under the 2024 building code.

because had we not um changed the policies and procedures because every other uh developer that comes into town at this point, if you've got expired permits on September, I'm sorry, on uh August 30th, 2025 um and you go to renew them on September 1st, 2025, when the new building codes come in, you have to update all of your plans to the new building code. That's what happens when permits are expired.

So therefore, in order to um save the developer, $1.5 million is what I understand the developer said it was going to cost to update the uh plans to the 2024 building code that we agreed to uh this council agreed at the LA at the September 2nd meeting that to extend to renew the permits under the 2024 building code as long as uh the a new development agreement was entered into to conform with the current realities.

Um, so that was the consideration for the benefit that the developer got for getting something that nobody else in this town has is eligible for. No, I'm good. Um, I'm good. Um, I I don't have any questions. Thank you, Councilman Watts. So to be clear, had the permits been paid for before the end of August, they were still eligible for the 2018 issuance and then we wouldn't be in this debacle right now.

If the permits had been purchased, paid for and issued prior to the building codes being changed, um then this then the then the question would have been was the development agreement still valid? I think it I think per John's um presentation the building the development agreement the secondary extension expired in June of 2025. Is that correct?

So if he had bought paid for the building permits prior to the June date in 2025, that was a execution that extended the existing 2016 development agreement that then expired in June of 2025, then our building codes changed um effective September 1st of 2025. So not only did the original I'm sorry, the amended development agreement expire in June, but then the changes to the um things.

So, if he had if he had paid paid for the permits in June of 2025, we absolutely would not be here in this position. Brenda, your light was on. Yeah. Um, another question for the attorney. Um, we we have in our packet, I believe it's public record the 2025 draft development agreement. Okay. Okay. I I think they're I think they're connected. Um maybe we should go go to B because there's a chance this could be resolved if we connect A and B together. Um because according to Mr.

Watts had a very good question. If they would have paid the permits, you know, would they would the DA still be and and it would have expired. Uh on the other hand, what we're talking about today is getting the permits paid using essentially the old DA with MITER upgrades. Um and then just getting the permits paid. At least that's where I think we're right now. So the question that I had, Jerry, Mr.

Mayor, was that are there substantial variances between the original DA and the 2025 draft development agreement that we have in our packet? So, as it relates to So, I think the first agenda item is related to the permits and and part of I guess the permits is renegotiating the development agreement. Um, so I the all the changes that are suggested by staff and legal counsel regarding the development agreement are on as part of public record.

I think we're going to go into those more detail next, but I would not say that any of those are significant changes. In fact, it in some instances it improves the developer's position in several in several portions that of things that were never um uh required or sorry, never enforced such as the Wi-Fi requirements and things like that. We removed some of the things that that were initially required in the initial development agreement that never really came to fruition and were never enforced.

So we removed the things that were outdated and and in your negotiations or conversations um with Cecil and Bart um did they did they produce to I know they produce an operating agreement. Did they produce a um a financial document that said they had received funding pending action of this council? I have never received any financial information.

I don't know if staff has received any financial information, but as far as I know, we have no So, are we talking about ownership interest or getting finances? I'm sorry, I don't understand the question. The reason we're here today is is this is this about obtaining fi financing for the project or establishing who owns the property? Yes.

So I think the first part is is that again because the building codes from 2018 expired um and are now superseded by the 2024 building code um there was no way to you know extend do an over-thecounter extension of because you don't you don't extend expired permits you have to renew them. So you don't get an extension.

So, so that when you have a permit that hasn't expired, you can make a phone call and renew the permit to extend it beyond the deadline as long as it's done within a certain period of time. It's all spelled out in the in the um uniform codes, the international building codes. Um so the this as as John went through these expired back in I'm sorry, John, what year? 23. The building codes expired in 2023. permits. I'm sorry. Sorry.

The permits ex the the permits expired in 2023 because they were not issued because he didn't pay the fee the f the the fees to to issue them. And so um when they expired in 2023, he made no attempts to um extend the permits, which is what you would ordinarily do before they expire. You asked to have them extended. Um that didn't happen for several years.

And even under the international building code, we're not even uh a town does not have to only it's it's sold at discretion at this point would it have to then even renew permits that were issued several years expired. So again, even going to the fact that we're renewing the permits, considering renewing the permits under the old building code after the new building code has changed is a ve huge deviation from the building codes and from the um international building codes. Right. Thank you.

So, I have uh a question and a comment. Approved permits are issued when they're paid for. Is that correct? Correct. Okay. Um secondly, there's been talk of different people being involved in this. Do we know the status of the ownership of the property? So, the ownership of the property has changed since the original development agreement.

So, the original development agreement in 2016, the property owner was Parkplaces Properties LLC, and it was a a signed the original agreement was signed by Sam, and I can't remember his last name off the top of my head. I could pull it up. Um, but that was the original owners of the property when I went to go start working on and this is maybe a little bit more of the development agreement. So, I but I guess it's all in the same council meeting, so it doesn't really matter necessarily.

But when I went to go look over the ownership um to update the development agreement to make sure we had the right parties in, you know, named in the contract, I became aware that back in 2022, the property changed hands from Parkplace Properties LLC to Park Place owners um I'm sorry, phase two and three owners LLC, which um is then the sole member of that is and I can't remember the name, another park place which ultimately ly comes to um a group called Button Capital.

So um that's who owns the uh title to the land. Um there is an operating agreement between Mr. Shea and um Button Capital. Um but that that and um sorry that that's inaccurate. I'm sorry that's very inaccurate. So NHA group well I'm sorry we're we're producing inaccurate information on the ownership of the property. Right. And that was the question you had. So the LLC's that own it right now in the operating agreement that runs it is me. 80.1% me. And that's been sent to your attorney.

The confusion about what my partners are and who they are is not relevant to the conversation. I'm still in control of the LLC's that own the property. I do have partners in it like I had partners in the first phase, but I I can't just stand here and go, "No, it's button capital." It's not. Well, you you tend to think so. And we added new names on top of the red lines for the development agreement, which I don't know changes the entire thing.

Um, literally this concept and you have the operating agreement, you have the relevant pages of the operating agreement that gives me signatory rights on it. No he gets us three minutes in a minute by the way. Um but to the other point though the owners of the property have changed since the original development agreement. So we have different parties involved in this regardless as evidenced by a recorded deed on record. Right. Correct.

And um are we aware of any other the property changing hand since that recorded deed at all? any sales or anything that have gone on? No, we unders we No, we don't have any. No, thank you. You have three minutes coming up in the next agenda item which you can address. Um, so I have another question for the attorney. So, agenda item A says that um pending renegotiation of the development agreement. Um we made some minor updates. Is it it's not really a rene renegotiation.

We're just changing the dates, extending the dates and doing a little bit of housekeeping like you said, getting rid of stuff that doesn't apply. Is that considered a renegotiation? I think it falls within the scope of a renegotiation, but it sounds more robust than what we're actually doing. So, you know, the terms are interchangeable, but the reality is we just want the the agreement updated.

So, it might have been an inartul term that was used, you know, when we originally passed this on September 2nd. Um, but that's what was passed. So, we can affirm that. We could modify you could modify what was what was approved on September 2nd. Um, or you can Yeah. Or you could resend it.

And if we I I will say that if you resend it, then the um then the 2024 building codes would be what what would the the the park place would be renewed under because the only reason why they're getting the 2024 building codes is because you guys right after the first meeting after the um building codes went into effect.

first meeting meaning meeting meaning meeting meaning first meeting since the summer recess since the request was made to extend the permits um which again they weren't really extending they would be renewing um at the first meeting after you guys decided to go ahead and extend the permit or I'm sorry allow the renewal of the permits under the 2024 building codes so we wanted it needed to be done as close in time as possible to when the new building codes came into effect because this is not something that the town you know it does on on an ordinary basis So that's what was done, you know, that it was done at the first meeting, first opportunity after the request in a extremely timely manner.

And um so anyway, if we rescended it, that would mean that they would have the 2024 building codes and they would lose the $ 1.5 million benefit. Well, I mean, I don't know how much it's going to cost them to re redo their plans under the 2024 building code, but I was under understood it to be up to $1.5 million or maybe more um to to conform the the expired plans to the current code. Thank you, Councilwoman.

Yeah, my understanding is um we're on part A, which was to either resend or affirm the council's September 2nd um vote. So, I'd like to make a motion to just affirm what we did on September 2nd so we can move on to um agenda item B. Second. I'll make one statement then I'll ask for a roll call vote since we have a motion in a second. So, um town attorney um we can get this worked out with this development agreement.

They'll save $1.5 million and um everybody should be happy with that because we're not totally renegotiating uh the development agreement, just extending the dates and cleaning up a little bit of housekeeping on it. Am I correct? That's correct. Right. Um I have a question. Go ahead. I mean that's a tricky word and I think we're um playing with it in the sense that we don't have a signed development agreement.

So in essence whenever it's my understanding you bring forth a new contract or whatever even with the changes etc. It is some it is part of a renegotiation. I mean, you know, I think we're just I think I I guess I think we're playing with, you know, word pingpong here. And I think our intent is to hopefully have the um changed and up the updated DA, you know, come before and get signed, etc., so this project can move forward. So, I think there's a vote on the table. Roll call vote, please.

Oh, I'm sorry. Hannah, do you have anything do you want to add? No, mayor. Thank you. And clarified that um this isn't for the permit. Correct. Thank affirming it. Right. Thank you very much, Council Member Larby. I council member McMahon I council member Watts I council member Earl I council member Calavianis I mayor Iel mayor 6. Okay now we'll move on to uh discussion and action related to the updates on the development agreement.

John, can I ask you um if you have any uh high points on this development agreement that you you can share with us? Mayor and council, uh I think anything I might say has already pretty well been said. We have gone through it and updated it, extended the development schedule based on where we're at in the time frame. Uh pulled in some of the items from the uh settlement agreement. Otherwise, as our current attorney said, taking out some things we feel like don't apply anymore.

This is revised agreement would apply to phases two and three. So, there's some things were done in phase one that already done. So, we tried to clarify those things. So, it really is just trying to update it uh to where we are today in reality without adding anything uh new, just make it so it's workable going forward. Thank you. Um do we have any speaker cards on this? Yes, mayor. We have four.

Uh, we'll start with Larry Meyers, followed by Bart Sheay, Mayor Council um, I've been around since the very beginning, actually before the beginning, and nobody has nobody tried to do what was best for the downtown more than Bart. I mean, his efforts to try and actually make it an entertainment district were pretty admirable and the money just the demographics of the town and the money just didn't support the project.

So having Parkplace there, not exactly my favorite type of development, but ParkPlace to me and having been friends with the former mayor and she'll attest to this, it was once again another development which was not done properly, which we do from time to time a lot. Um, it wasn't done in a public forum. It was done in a back room. And so much of this deal the public doesn't even know anything about until now when in the packet the development agreement finally is there.

The development agreement was nowhere for someone like me to see for years. And so to argue about the development agreement and whether we're nuancing it or updating it or just tweaking a little or changing a lot is kind of uh it's not a it's not fair to the public. Number one, because emails go out and one side gets stated and there's facts in there that if you don't know, you don't know what the other side is because the other side is all the folks up here and not even you guys.

A previous administration. And then to state these as 100% assured it that's not fair as well. And to thrust the town the new town attorney into uh uh creating a political a a uh a legal position on something that was done by a previous administration. I wouldn't know whether she's accurate to the law or not because I don't know what was in the agreements, but nobody benefits from the land being bare with a chainlink fence around it.

And certainly, I wouldn't want to pay a $1.5 million penalty to update to some stupid 2024 codes because I'm doing it down in Scottsdale and I'm not happy about it. So 2018 is fine with me. I think you guys did the right thing on the last agenda item and the September meeting by extending this. And I think a reasonable thing to do is to get these guys in the room and fix the development agreement so that they can build their building. Thanks.

Mayor council staff attorney, thanks again for having this parade. It's been nine years, I think longer, 10, um, that I've been coming to try and develop downtown. So, I I kind of relish in the fact that how many times staff has tried to renegotiate the development agreement. Um, they timed me out. We tried to renegotiate the development agreement, incorporate a ton of things back into it that they wanted, that staff wanted under this project.

To give you an idea of the length and breadth, the town has now changed the names on the top of the development agreement, and that's where it starts. Um, it's not relevant to what it is. I've been I've had this development agreement running since literally I did Morning Star. I got to this town four mayors ago, four councils ago, four attorneys ago, five development service directors ago, um three town managers ago, and every one of them wants a bite at the apple on this.

Everybody wants to take another shot on this. Well, we just get what we want into this deal. I can't even impress upon you enough that we're out of time. We've done this, been there, done that. This is the most irrelevant concept in the entire world. It's like the horse is down the block. We're going to close the barn because it's on fire.

Um, so we're going to renegotiate a development agreement when everything that's necessary is on the plans in the agreement and exists today to build two and three and to make it what you have and to to live up to everything that has to be. The reason there's not Wi-Fi on there is because the town of Fountain Hills won't allow it. The infrastructure on the avenue, it has nothing to do with us not trying and and literally not getting there. They don't allow Cox on the avenue.

It was the deal that they cut, not me. We've tried everything we could. We spent hundreds of thousands of dollars. And at one point, I went through the entire exercise of putting a Verizon station on top of one of the buildings there. Plans were drawn. Verizon was here. Everyone was here. Free Wi-Fi for everybody. And it was a foot and a half over what they deemed necessary and said no. So, I've I've I think I've pretty much been through the ringer as much as anybody in here.

Literally, I paid the art fee on this project already. That little base for the fountain light out front, 90 grand on it. I got a plaque and they misspelled my name on it. Um, so I I I kind of get it. I kind of understand it, but this is the most unnecessary thing in the entire world is to redline an agreement for a project that's ready to go to do nothing. It basically does nothing, but we're adding names. We're changing recitals.

Um, two other little things that I'm going to kind of mention on here. So, I put the Avenue of the Fountain in on my dime. These guys are scheduled to do the same thing. It's in the schedule of values to to update the avenue and complete it all the way down. The last goound on the negotiations, they wanted to come for parks fees. Even though we're putting it a park, they wanted parks fees. That was John and Grady on it. They said, "We don't consider that a park.

We want park fees." I go, "Okay, you understand then if you do that, you're going to have to pay me for the avenue and we'll offset the cost of the park fees on this." Oh, we don't have to do that. Well, then the insurance lawyer got involved with this. Oh yeah, you actually do have to do that. I don't want to go back into the court on this. I don't want to do anything else on this. I want to go build get the buildings built. I'm taking a hell of a hit to go do it.

I'm going to live with these guys for the next 18 months while they do it to make sure that we everything goes the way it say they says on my nickel on my dime. It this this is the most unnecessary absolutely asine thing I've ever seen.

And literally, literally every other town that I've ever worked in, and it's extensive, will extend the permits as long as there isn't dramatic changes in the code, because if there is dramatic changes in the code, the building inspectors will pick up on them and say, "This isn't a current code. We need to change that." And we do. So, this concept that it never happens before, no one else would ever get this favor. I don't even know where you got the million and a half. I still own the plans.

I still have an architectural firm. It wouldn't again it's it's not relevant to it. But these numbers that get thrown around are just irrelevant. So thank you for giving me the extra time. I apologize for going on and on about it. Just remember one thing. I don't I am not here to go back to court on this. I am not here to get in another fight over this stuff. It's just not relevant. It's just not done. Thank you. Thank you. The last two speakers are Cecil Yates, followed by J. Schlum. Thank you.

I'm sorry I get excited. That's why I raised my hand and wanted to speak. Um, an estoppable agreement just for everyone's edification. To the town attorney's point, yes, it's a moment in time. Typically, it's used for um building owners to affirm that the rents are at a certain level at that moment in time for a refinance or purchase etc.

this particular certificate was issued and I won't read it again but you get the point was confirming compliance and it wasn't alluded to but confirmed emphatically that we are in compliance and this is why the developers agreement any changes is to Bart's point is moot and not necessary and and respectfully with uh the permits expiring you were correct they did expire but it wasn't until um we had a meeting a couple months ago where John and I sat down and said, "Hey, we really need to deal with this because the town's going to the 2024 code." But I remind the council and staff that the staff report that the changes are are minimal and and I appreciate the fact I should even be bringing that up because you already passed it.

So, thank you very much. But as far as the developers agreement, it's a moot document. We are here to ask you to formally say we don't want any changes. just leave the the document alone.

If the developers agreement was that important to you, then when it expired, whichever time, June 5th, four months ago, respectfully, why didn't we get a call saying, "Hey, Cecil Bart, we need to come in here and talk about the developers agreement because we never received that call." Hence why we were very upset and uh quite frankly um blindsided when we showed up. Uh if I miss something, I'm all ears, but uh respectful to the last council meeting when you added it to the agenda.

It's not there's a a term in Robert's rule, and I'm sure you've heard of this. It wasn't gerine to the topic. The topic was the permits. If you wanted to talk about the color of the permits or the price of the permits or the extension or deadlines, that's germanine to that. Adding the developers agreement to the agenda is not following Robert's rule. So we were never brought in to even discuss the developers agreement.

You added it to an agenda without given notice and our estoppel emphatically twice. We have two estoppel certificate twice says we're in compliance. So I am here to formally ask you pretty pleased with sugar on top. Um just uh pass this as is. We do not need to address this. It's way more than what they're telling you as far as some minor changes. Thank you. Hey mayor council, thanks for uh your service. Town manager, attorney, um clerk. Good to see you guys.

Um, so obvious I'm obviously not in the mix 100%. Um, but I do want and I think all of our council wants our town to roll out the red carpet for quality worldclass development and this is a public meeting. It doesn't sound like that's what's going on. So, let's make sure the perception gets changed and we start working with uh folks with the red carpet rolled out for worldclass development like we've enjoyed here in Fountain Hills for years.

Um we've got some of the best developments in Fountain Hills that throughout the entire state and that's because we've worked well with land developers. And then you talk to big land developers, what do they want? They want to know what the rules are and they want to be empowered to spend their money and they don't want to get down into the weeds and have things changed. That just makes uh not for a good empowering environment.

So, I'd love to have more communication with our council leadership and our big developers in town or substantial things that are happening. Um I know a lot of these council members and mayor are out in the public all the time. It just sounds like from what I'm hearing there's not a lot of dialogue and there's people probably trying to protect one another and not really screw up.

U but when you meet with folks one-on-one outside of a public meeting when you're making a decision, I think it's pretty fair to say you can have a conversation with folks as long as it's not a majority of the council there. I'd like to see um us work with our land developers. This has already been agreed to multiple times. Um, so I'm not I think the pretty please with sugar on top is probably a good uh good request. Um, I know you have a development agreement with red lines before you.

Um, so maybe you're going to feel empowered that you need to look at those red lines uh and consider them obviously. Um, but hopefully something can be done to move this development forward. He spent, I think, hund00 million dollars already in our community. And he's given uh a lot more than that just in um good graces and loving our community. Raised his family here, as has Cecil, Bart, and Cecil and their families have been here.

A very important part of our community, and they love it, and that's in part why they're why they're still here after so many years. Um so appreciate you guys keeping the dialogue open. Let's make sure our developers uh that are quality, worldclass know that this town is open for business and I appreciate you guys considering this again and let's move forward. [Music] That's it. Council questions, comments. Councilwoman, thank you very much.

I appreciate everybody's um comments and input on this. having listening to them to me there is a lot more to this and the agreement and the situation than what is even being said. Um, I think that, you know, like you said, you know, it's the the DA agreement has expired. you know, for lack of a better term, updated.

Um, to avoid, you know, convolution or or f further confusion, um, I would like to direct the town attorney to, um, speak with, um, the parties and interests about the DA and hopefully getting it moved forward and signed. Thank you, Councilwoman Kak. Thank you, Mr. Mayor. Um, we there's so much agreement in this room. I just can't believe it. Thank you, Larry. Thank you, Cecil. Thank you, Bart. Thank you, Jay, for for all your wonderful comments.

Um, this is a room full of people that all want the same thing. I can assure you of that. And I think I can speak for everybody on this council, including the mayor. This is something that we really want to see done. We really do. Um, every everybody wants to see the development happen. Everybody respects all that you've done for this community. Everybody respects your reputation and for all the the building and the things that you've brought to this town. It has not gone unnoticed.

Everybody wants this development to happen. The reason that I wanted to go into executive session before is we we there is just one legal issue, one hurdle that we're having a difficult time and that's the estoppel. What what is the significance of the estoppel agreement? That that's the the key issue here. And again, I wanted one more chance to to talk about it. Um, you know, so far today we we have authorized the the renewal of the permits.

We have discussed this with our attorney and we do have to listen to our town attorney. That's why we Yes, we do. Um, she she she's the one who gives us the advice that we rely on. Um, she tells us that this draft agreement is taking the old DA, the old DA and then this is the new DA with just maybe a little less water in it. That's what we're being told.

And that's why some of us up here are having a hard time f wonder wondering why we can't bridge reconciling the verbiage of the new DA which we've been assured almost mirrors the old DA. We we don't understand that. Um, you know, again, maybe this would be a good time to take it to our attorney, you know, but I I can just assure you guys that everybody here want just wants what you want. And I can't help but to believe that that we can't come with some kind of a a path forward.

Um, would you like to address that, Jen? [Music] Well, I I'd say I'd mirror the comments that um that uh Director Weasley noted that there's we the agreement has been updated to match the current conditions and that's it. Um there isn't any zingers or any significant changes. Um um I I in response to the issue of changing the name of the owner at the top because ParkPlace Properties LLC no longer owns the property.

So, if we need again, I think to be clear, what's on the agenda today is for you guys to address uh you guys to uh for the council to approve me working with the uh developer and the owner to finalize this agreement. These are draft suggested changes. This is would be the starting point for us to go and this is all that the the council or that the town is is requesting needs to be done. We don't we're not going to expand or further uh try to change any of the plans or any of the requirements.

This is what the town is looking for. And now this we would take to the developer and the owner for them. If I've got the wrong name of the owner, if there's a different owner, we put at the top, we can put the new owner's name. Um if we've got different addresses, I I didn't know who their current attorney was because I was never provided that information. We' put the correct attorney in here.

Um, so there's this is this is just the starting point for the town and it's and it and and it's the most that the town is going to ask for. Um, so it's not we're not going to come in and change further change this in in the detriment to the developer. We're just trying to update this in specifically if we look at the development schedule.

I think that um uh director Wesley had uh put the development schedule from the prior agreement up um which is included in the red line and you can see that those dates are all completely gone. So without a development schedule, you know, it's it's it's an uninforcable contract on the most part because the development schedule from 2026 or 2016 is long since over. All those months are gone. So it has a new development schedule within the two-year timeline.

So, it's it's just so that we have a development schedule that matches today's conditions because you can't enforce the development schedule from 2016 since all the dates were surpassed. So, that's it. Councilman Watts. So, two things. I I am in support of the project. One, I want to find a way to try to get this done, but I have a question for the attorney. something we haven't actually talked about.

What are the consequences if we just approved the develop the ignore the date and and I understand that we we're trying to correct the errors of the development attorney from before. But if we simply approved it and left the December 31 date for paying for the permits, what are the liabilities or the consequences? because I don't think anybody really understands what we're trying to resolve and protect ourselves from a liability standpoint. Is there a significant consequence or liability?

I would actually say that the legal significance would have to be an e session. Do we need to go to an e session and find that out? Because it could be it could be easier. give you some more information. Also, don't we have to stay with what's before council, what was noticed as far as um directing the attorney because that's what was noticed, right? It affects the vote for a yes or no.

I I I would recommend before we go into e session to listen to Cecil so we can take that into the mix before we discuss. Hang on. Hang on. What was notice that we're here for? This is to for you to uh approve me having uh negotiations regarding the development agreement. So if for you to do it correct. Thank you. because I don't want to get off the topic or anything like that that we're not supposed to. Yeah, we're not. We're not. I'm gonna do something a little unusual of Cecil.

I'm going to give you two minutes. No. Um again, I'm I been a parliamentarian before. I've run multiple um boards. the discussion and possible action. Rescend or affirm the council September 2nd, 2025 vote. Rescend or affirm. So, no, no, that was for the permits. It also says for the developers agreement and and I appreciate Peggy, I'm sorry, Councilwoman McMahon. I appreciate your concern. The timeline, etc., of things like that is once we pull a permit the clock starts ticking.

You are constantly always in control of this whole process. If we don't perform after we pull the permits, there's a process involved that we have to come back in you and answer to you why haven't you done this? Why isn't this done? So again, I get back to the point where the developers agreement is not necessary because our estoppel by definition confirms we're in compliance and the agenda item again is resend or affirm.

So you can either affirm but respectfully um we were not part of any of these red lines. So again we're getting shoved this saying here they are and there is one gotcha item on there respectfully town attorney is right wrong or indifferent the uh uh um review process typically and I've shared this with many of you typically takes three to five reviews. We did 13 and every review that that took took time and money.

We budgeted so much, but for you guys, the way it's written in there, you want us to pay for that additional eight reviews. And respectfully, I don't think that's right. So, that's one of the major things in there. And I just want to throw in there, it's probably some of these other things. cuz I I know some of you before you guys were given a gag order and not allowed to talk to me. You had shared that you thought the DA was just a simple update.

Um but it's a little bit more ext you're you're allowed to rescend or affirm. So pretty please with sugar on top. Please rescend. Thank you. Thank you. Do we need to step into an executive session for a few minutes? I'm asking for you might call for a motion. Yeah. Is there a motion? The motion to direct the town attorney or No. To go to executive session for 15 minutes. I move that we adjourn to executive session for a few minutes. Second. Okay. Uh, can we get a roll call vote please?

Council member Watts, I. Council member Calvianis, I. Council member Larabby, I. Council member McMahon, I. Council member Earl, I guess. and mayor Fidel. Hi, I know we're Mayor 6. We're going to adjourn for 15 minutes to executive session. Okay, we're going to reconvene this meeting now. council [Music] person uh Larby, are you on the line? Yes. Good. Thank you. Councilwoman, thank you very much. And thank you very much for um the executive session.

And I would like to make a motion to direct the town attorney to send a copy of the draft redline development agreement to the relevant parties and to direct the town attorney to negotiate a revised development agreement with relevant parties for the later discussion and approval by council. Thank you. I'll second that. We have a motion and a second. Can we get a roll call vote, please? Council member Watson, I. Council member Calabian Nagas, I. Council member Larabby, I.

Council member McMahon, I. Council member Earl, I. And Mayor Fidell, I'm going to explain my vote. Um, this gives the interested parties uh a look at the development agreement. Anything you don't like, you send it back and we get the ball moving on this thing. I mayor 6. Thank you. Motion to adjurnn. Second. All in favor? I I Thank you.