HomeMy WebLinkAboutRES 00-17RESOLUTION NO.00-17
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,AUTHORIZING THE CITY TO ENTER INTO AMENDMENT NO.
2 TO THE PREANNEXATION AND DEVELOPMENT AGREEMENT WITH EARNHARDT
PROPERTIES LIMITED PARTNERSHIP; AUTHORIZING THE MAYOR TO EXECUTE ANY
AND ALL DOCUMENTS TO ACCOMPLISH THE ABOVE;AND DECLARING AN
EMERGENCY.
WHEREAS,the City of Apache Junction,an Arizona Municipal Corporation,
(hereinafter the "City") and Earnhardt Properties Limited Partnership,an Arizona
Limited Partnership (hereinafter the "Developer"),entered into a Preannexation
and Economic Development Agreement on or about August 19,1999 (hereinafter
"Agreement");and
WHEREAS,on January 31,2000,under Pinal County Recorder Fee (hereinafter
"PCRF") No.2000-004441,the Agreement and Exhibits A through C were recorded in
the Pinal County Recorder's Office (hereinafter "PCRO");the PCRO refused to
accept Exhibit D, which was the site plan,since it was printed in a smaller than
permitted font size;and
WHEREAS,on February 28,2000,under PCRF No.2000-008518,Amendment No.
1 to the Agreement was filed at the PCRO,wherein the construction deadlines set
forth in §6(a)(1)of the Agreement were modified due to roadway design
alterations;and
WHEREAS,on March 15,2000,the original Agreement was filed under PCRF No.
2000-011223,with a copy of Exhibit D being attached;but with no reference to
the modifications to §6(a)(1)being reflected;and
WHEREAS,Developer recently requested permission pursuant to Section 12(d)
of the Agreement to transfer a portion of its ownership rights over two twenty-
acre parcels to No Bull,an Arizona Limited Liability Company;and
WHEREAS,on May 2,2000,the City of Apache Junction City Council passed
Ordinance No.1126, wherein it approved Earnhardt's request for a Major Amendment
to its Planned Development Plan in Zoning Case No.PZ-20-99 which makes i t
necessary to amend Exhibit "D";and
RESOLUTION NO.00-17
PAGE 1 OF 3
WHEREAS,on or about June 29,2000,the City received a new schedule
involving construction,engineering and submittal deadlines which requires the
original Agreement to be amended in part;and
WHEREAS,in order to;1)accommodate the Developer in its request for the
Property Ownership transfer;2)provide for the site plan modifications in
Exhibit "D";3)correct previous filing irregularities;and 4)provide for new
development deadlines,i t i s necessary pursuant to §12(b)of the Agreement to
amend the original Agreement filed with the PCRO under PCRF No.2000-004441.
NOW,THEREFORE,BE IT RESOLVED by the Mayor and City Council of the City
of Apache Junction,Arizona,as follows:
SECTION 1:To effectuate the above -noted concerns and requests,the Mayor
is hereby authorized to execute an "Amendment No.2 to the Preannexation and
Economic Development Agreement",the form and substance which shall be drafted
and approved by the City Attorney.
SECTION 2:The immediate operation of the provision of this Resolution is
necessary for the immediate preservation of the public peace,health or safety
and that an emergency is hereby declared to exist,and this Resolution shall be
in full force and effect from and after its passage,adoption and approval by the
Mayor and Council of the City of Apache Junction,and shall not be subject to the
referendum provisions under A.R.S.§19-142(B).
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,THIS 19TH DAY OF SEPTEMBER ,2000 .
SIGNED AND ATTESTED TO THIS 19TH DAY OF SEPTEMBER
DOUGLAS C
Mayor
ATTEST:
KATHLEEN CONNELLY
City Clerk
,20 00 •
RESOLUTION NO.00-17
PAGE 2 OF 3
APPROVED AS TO FORM:
410---0-12-oo
RICHARD J.STERN
City Attorney
RESOLUTION NO.00-17
PAGE 3 OF 3
DRAFT 9-11-00
When recorded, return to:
City Attorney, Richard J. Stern
City of Apache Junction
1001 N. Idaho Road
Apache Junction, AZ 85 219
AMENDMENT NO. 2 TO PREANNEXATION AND ECONOMIC
DEVELOPMENT AGREEEMENT WITH EARNHARDT PROPERTIES LIMITED
PARTNERSHIP
WHEREAS, the City of Apache Junction,an Arizona municipal
corporation (hereinafter the "City"),and Earnhardt Properties Limited
Partnership, an Arizona limited partnership (hereinafter the "Developer"),
entered into a Preannexation and Economic Development Agreement on
or about August 19, 1999 (hereinafter "Agreement"); and
WHEREAS, on January 31, 2000, under Pinal County Recorder Fee
(hereinafter "PCRF")No.2000-004441,the Agreement and Exhibits A
through C,were recorded in the rnal County Recorder's Office
(hereinafter "PCRO"); the PCRO refused to accept Exhibit "0", which was
the site plan, since it was printed in a smaller than permitted font size; and
WHEREAS, on February 28, 2000, under PCRF No. 2000-008518,
Amendment No. 1 to the Agreement was filed at the PCRO, wherein the
construction deadlines set forth in §6(a)(1)of the Agreement were
modified due to necessary design alterations of roadways; and
WHEREAS, on March 15, 2000, the original Agreement was filed
under PCRF No. 2000-0011223, with a copy of Exhibit "D" being attached;
but with no reference to the modifications to §6(a)(1) being reflected; and
WHEREAS, Developer recently requested permission pursuant to
Section 12(d) of the Agreement to transfer a portion of its ownership
rights over two twenty -acre parcels to No Bull Inc., an Arizona Limited
Liability Company; and
WHEREAS, on May 2, 2000, the City of Apache Junction City Council
passed Ordinance No. 1 126, wherein it approved Earnhardt's request for
a Major Amendment to its Planned Development Plan in Zoning Case No.
PZ-20-99; and
WHEREAS, in order to 1) accommodate the Developer in its request
for the Property Ownership transfer,2)provide for the site plan
modifications in Exhibit "0", and to 3) correct previous filing irregularities,
it is necessary pursuant to §12(b) of the Agreement to amend the original
Agreement filed with the PCRO under PCRF No. 2000-004441.
NOW, THEREFORE, the Agreement is hereby modified to reflect the
most current changes as follows:
SECTION 1:The title of the Agreement is hereby amended as follows:
"Preannexation and Economic Development Agreement with Earnhardt
Properties, Limited Partnership and No Bull, an Arizona Limited Liability
Company".
SECTION 2:The first "whereas" clause is hereby amended as follows:
WHEREAS,the City of Apache Junction,an Arizona municipal
corporation (hereinafter referred to as the "City"), is entitled to enter into
this Preannexation and Economic Development Agreement (hereinafter
the "Agreement")pursuant to Arizona Revised Statutes Annotated
(hereinafter "A.R.S.") §§9-500.05 and 9-500.11; and
SECTION 3:The second "whereas" clause is hereby amended as follows:
WHEREAS, Earnhardt Properties Limited Partnership, in Arizona
Limited Partnership and No Bull, an Arizona Limited Liability Corporation
(hereinafter collectively referred to as the "Developer"),owns
undeveloped land more fully identified in Section 1 of this Agreement
(hereinafter referred to as the "Properties"); and
SECTION 4:The third "whereas" clause is hereby amended as follows:
WHEREAS, Developer wishes to construct and operate a regional
automobile and recreational vehicle sales and servicing dealership
consisting of buildings and improvements not less than 40,000 square feet
on a portion of the Properties known as "Phase I"; and
SECTION 5:Section 4 of the Agreement is hereby amended as follows:
SITE PLAN AND AMENDEMENT TO PLANNED DEVELOPMENT PLANS:
The Developer shall, subject to rezoning, and any amendments to Planned
Development Plans, be entitled to develop and utilize the Properties as
more particularly set forth in the Site Plan, attached hereto as Exhibit "D",
and as amended in the future to reflect any desired changes as mutually
agreed upon by the parties.Prior to any building permits being issued by
City for the Properties,City must first approve a Final Site Plan for the
Properties or such portion being developed.Developer further agrees
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that approval of any such Site Plan shall be in accordance with the City's
normal procedures and processes, and that any such approval shall be at
the sole discretion of the City.
SECTION 6:Section 6(a)(1)of the Agreement is hereby amended to
provide that the City shall construct street and other improvements
referenced therein on or before July 1, 2000. •
SECTION 7:Section 6(a)(2) of the Agreement is hereby amended it its
entirety, as follows:
(2) an extension between Baseline Road and Auto Center Drive of
South Cactus Road with curb and gutter to current properties,
approximately aligned with the west boundary of the portion of the
property described on Exhibit "A",on or before September 28,
2000, or such other agreed upon date whereupon the dealership
will be open to the public for business;
SECTION 8:Section 6(a)(3)of the Agreement is hereby amended by
deletion of "on or before January 1,2001".
SECTION 9:Section 6(b)of the agreement is hereby amended by
replacement of "before January 1, 2002" with "as needed".
SECTION 10:Section 7(a) of the Agreement is hereby amended to provide
that the dealership shall be completed and open to the public no later than
September 28, 2001.
SECTION 11:Section 7 of the Agreement is hereby amended, adding a
new subsection (f), which shall provide as follows:
(f)Deadlines for drawings,construction,submittals and the
Certificate of Occupancy shall be agreed upon from time to time
with written approval by the City Manager and Developer.However,
a written modification to this Agreement must be executed by the
authorized agents of the parties in Amendment form, and shall be
filed with the Pinal County Recorder's Office.
SECTION 12:The attached Exhibit "D" shall replace any previous site
plans, which have been filed and recorded in any previous document. Any
further changes to the site plan must be included in a written Amendment,
which may be executed by the City Manager for the City and an authorized
representative of the Developer.Such Amendment shall be filed in the
Pinal County Recorder's Office.
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SECTION 13:Any previous amendments to this Agreement shall be
considered null and void.
IN WITNESS WHEREOF, City has caused this Amendment in its
name and on behalf of its Mayor and attested to by its City Clerk, and
Developer has signed the same, on the dates set forth below.
CITY OF APACHE JUNCTION,
an Arizona municipal corporation
By:Date:
Douglas Coleman, Mayor
Attest:
Kathy Connelly
City Clerk
Approved as to form:
Richard J. Stern
City Attorney
EARNHARDT PROPERTIES LIMITED PARTNERSHIP,
an Arizona Limited Partnership
By:Date:
Hal J. Earnhardt III
Its: President
Approved as to form:
NO BULL INC.,
a Limited Liability Company
By:Date:
Its: President
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Approved as to form:
WHEN RECORDED RETURN TO:
City Attorney
City of Apache Junction
1001 North Idaho Road
Apache Junction, AZ 85219
'FICIAL RECORDS OF
FINAL COUNTY RECORDER
LAURA DEAN -1 YTLE
DATE:03/15/00 T I E:1414
FEE :14.00
PA.2 7-3:17
FEE NO:2000-011223
SUBSTITUTION OF PREANNEXATION AND DEVELOPMENT AGREEMENT
WITH EARNHARDT PROPERTIES LIMITED PARTNERSHIP FILED ON
JANUARY 31, 2000.UNDER FEE NUMBER 2000-004441
The attached agreement is exactly the same as the above -referenced
document, except that Exhibit "D" is being added, which was not attached
to the document previously recorded.
Richard J. Stern
City Attorney,
Apache Junction
When recorded return to:
City of Apache Junction
1001 North Idaho Road
Apache Junction, AZ 85219
Attn: City Attorney
PREANNEXATION AND ECONOMIC DEVELOPMENT AGREEMENT
WITH EARNHARDT PROPERTIES LIMITED PARTNERSHIP
WHEREAS, the City of Apache Junction, an Arizona municipal corporation
(hereinafter the "City") is entitled to enter into triis PreAnnexation and Economic
Development Agreement (hereinafter the "Agreement")pursuant to Arizona
Revised Statutes Annotated (hereinafter "A.R.S.") §§ 9-500.05 and 9-500.11; and
WHEREAS, Earnhardt Properties Limited Partnership, an Arizona limited
partnership (hereinafter "Developer"), has or is in the process of negotiating a
purchase agreement to ac quire certain real property referred to and described
herein (hereinafter the "Properties"); and
WHEREAS,Developer wishes to construct and operate a regional
automobile and recreational vehicle sales and servicing dealership consisting of
buildings and improvements not less than 40,000 square feet on a portion of the
Properties; and
WHEREAS, City desires to obtain those public benefits which will accrue
from the development of a regional automobile and recreational vehicle sales
and servicing dealership within the city limits, which benefits include, but are
nct limited to, the creation and retention of jobs, stimulaticl of further economic
development in the City, increase in property values aiona the U.S. 60 corridor,
provides for convenient major retaii uses to the oommunity and the retention
and generation of substantial new sales tax revenues: and
WHEREAS, development of the 'Properties will require the approval of all
architectural,engineering,landscaping and screening designs and all other
plans required for the issuance of building permits, and construction, expansion
or enhancement of other infrastructure,many of which will benefit City
generally; and
WHEREAS,Developer desires to gain ccnsent from City for the
Sup ,erstition Mountains Community Facilities District No.1 (hereinafter "Sewer
District") to provide sewer service to Properties pursuant to the provisions of
A.R.S. §48-709(A)(14), and
WHEREAS, the parties hereto wish to enter into this Agreement to provide
for the development of the Properties upon certain terms and conditions.
NOW,THEREFORE,IN CONSIDERATION OF THE COVENANTS
CONTAINED HEREIN,and for other good and valuable consideration,the
receipt and sufficiency of which is hereby acknowledged by each party to the
other, it is hereby agreed as follows:
1.PROPERTIES:This Agreement shall relate to specific properties,
more particularly identified as follows, and incorporated herein by reference:
Exhibit "A":Approximately twenty (20)acres located west of
Tomahawk, east of South Cactus Road, south of U.S. 60, north of
the Apache East Mobilehome Park E tates.Such property is
located within the corporate limits Of the City,and is zoned
Commercial 3, Planned Development.This property is currently
under ownership of Developer, and will be developed as Phase I.
Exhibit "B":Approximately forty (40)acres located west of South
Cactus Road,east of Royal Palm,and south of U.S.60.Such
property is located in unincorporated area of Pinal County, and is
zoned General Rural.This property will be acquired by Developer,
annexed into the corporate limits of the City, will be rezoned from
General Rural to Commercial by Planned Development ("C-3/PD"),
and will be developed as Phase If.
Exhibit "C":Approximately eighty (80)acres located within the
corporate limits of the City zoned Industrial, east of Idaho, ‘Nest of
Royal Palm, south of U.S.60,owned by various third parties who
are not parties to this Agreement.
Exhibit "0":Site Plan for Phases I and II, to be amended as needed.
2.EFFECTIVE DATE AND TERM:Upon adoption of a resolution by the
Apache Junction City Council,this Agreement shall become effective once
executed by both parties.Pursuant to A.R.S. §9-500.05(0), the Agreement shall
be recorded by City within ten (10) days at the Pinal County Recorder's Office.
The term of this Agreement ("Term") shall extend until all payment, performance
and reimbursement obligations of the parties have been fully per-formed.
However, as to the Property referenced in Exhibit "B,"any rezoning referenced
herein can only occur after the annexation of such property has become final
under Arizona law.
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3.COMPLIANCE WITH GENERAL PLAN:The development of the
Properties conforms to and is consistent with the City's General Plan which is in
effect at the time of execution of this Agreement.
4.SITE PLAN:The Developer shall, subject to rezoning, be entitled to
develop and utilize the Properties as more particularly set forth in the Site Plan,
attached hereto as Exhibit "D."The parties hereby acknowledge and agree that
Exhibit "D" is a preliminary Site Plan, and that prior to any building permits being
issued by City for the Properties, City must approve a Final Site Plan for the
Properties or such portion being developed.Developer further agrees that
approval of any such Site Plans shall be in accordance with the City's normal
procedures and processes,and that any such approval shall be at the sole
discretion of the City.
5.CITY COOPERATION:City agrees to accelerate all approvals,
inspections,and permitting processes as much as practicable,and further
agrees that no unreasonable or discrimihatory plan or design review
requirements will be imposed by City in connection with the implementation of
the Site Plan.
6.CITY'S OBLIGATIONS:In consideration of the improvements being
constructed on the Properties having value to the citizens of the City and the
public in general, and in light of the economic benefits which will be derived by
the City upon the completion of this project, City hereby agrees to do or cause to
happen the following:
(a)Construct:(1)between Tomahawk and the South Cactus Road
alignment,an east/west street,with curb,gutter,sidewalk,and
driveway aprons, approximately aligned with the south boundary of
the portion of the property described on Exhibit "A" (such east/west
street referred to herein as "AutoCenter Drive")before March 1,
2000;(2)an extension between Baseline Road and AutoCenter
Drive of South Cactus Road with curb, gutter and driveway aprons,
approximately aligned with the west boundary of the portion of the
property described On Exhibit "A" before January 1, 2001; (3) a four-
way stoplight on Tomahawk at the intersection of Tomahawk and
AutoCenter Drive on or before January 1,2001 provided that:i)
sufficient warrants are met pursuant to City Traffic Control policy,
and ii) such stoplight request has been approved by the Arizona
Department of Transportation;and (4) a northbound left-hand turn
lane on Tomahawk at the intersection of Tomahawk and AutoCenter
Drive,provided that such design and need is approved by the
Arizona Department of Transportation.
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The City's obligation to make the above -referenced improvements
are contingent upon substantial completion by developer of Phase I
as shown on the site plan in Exhibit "D."
(b)Construct:(1)AutoCenter Drive from the intersection of South
Cactus Road to Royal Palm Road across the portion of the Property
described in Exhibit "B," with curb, gutter, sidewalk, and driveway
aprons before January 1,2002.
(c)Construct: (1) AutoCenter Drive from the intersection of Royal Palm
Road to Idaho Road,with curb,gutter,sidewalk,and driveway
aprons.
The City's obligation to make the above -referenced improvements is
contingent upon the substantial completion of development in
Phase II as shown on the site plan in Exhibit "EY as amended,and
whether the City has negotiated an acceptable development
agreement with the property owilers of the Properties described in
Exhibit "C."If an agreement with any third party property owners
cannot be reached, Developer shall have the option to pay all costs
associated with any required acquisition efforts for such roadway,
in which case City shall then be obligated to make such
improvements provided further that Phase II has been substantially
completed by Developer.
(d)A condition precedent to the construction of the improvements set
forth above in (a)through (c)is that City receive all necessary
dedications from Developer and/or other third parties, relating to
such rights -of -way.Developer shall also provide adequate
assurance of property acquisition and financial ability to perform its
obligations hereunder, subject to the approval of the City Manager
and City Attorney.
(e)Both parties acknowledge that they agree to coordinate the
construction of this project with the timing of other improvements
associated with the project, but in any event the construction of
improvements will be completed not later than one hundred twenty
(120)days before the opening date of the Sales and Servicing
Facilities set forth in Exhibit "D" and described as Phase I, subject
to Force Majeure, as defined below; City shall commence this work
in good faith sufficiently in advance of the required completion date
to assure timely completion.
(f)Assist in having Water District and Sewer District provide water and
sewer respectively to the Properties upon submission of building
permit applications.City shall pass a Resolution granting
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(g)
permission to Sewer District to provide sewer services to the
Properties conditioned on the Sewer District's receipt of all
necessary approvals from any regional wastewater management
authority.
Rebate City sales tax measured by sales for the construction of the
initial development in Phase I and in future development in Phase II
including, without limitation, rebate of the City sales tax measured
by sales for Developer's contractor,subcontractor, suppliers and
materialmen.However, both parties acknowledge there will not be
any rebate of sales tax on sales of new and used vehicles and parts.
The transaction privilege tax rebate only applies to acts of
construction within the corporate limits of City as more fully set
forth in Article IV of the Index to the Apache Junction City Code.
(h)Assist Developer on comprehensive review of signage for the
Property as part of the City de ign and development process,
including, but not limited to two (2) signs not to exceed eighty feet
(80')in height,each with a square footage display area not to
exceed four hundred fifty (450) square feet per side.
(I)Waive all City development,plan check,and permit fees for
Developer's development of Property in Phase I.City further
agrees to waive such fees as Phase ll is developed by Developer,
and no other party, including any assignees or transferees.
0)Promptly upon completion of each building of the project and at
such time as each building is in full compliance with applicable City
codes and ordinances,City shall provide Developer with,a
Certificate of Occupancy for such building.If City refuses or fails to
provide a Certificate of Occupancy for any portion of the .Project
when requested, City shall, within six (6) days after written request
from Developer, provide Developer a written statement indicating in
adequate detail how they failed to satisfy the conditions for
issuance of the Certificate of Occupancy and what measures or
acts City requires before City will issue the Certificate of
Occupancy.City shall not withhold approval without good and
substantial reasons.
In the event that Developer receives notice from City that City will
not issue a Certificate of Occupancy and Developer disagrees with
City's determination,City and Developer shall cooperate in good
faith to resolve the dispute between themselves within a period of
six (6)days.In the event the parties are still unable to agree
following the expiration of such six (6) day period, then Developer
may request an expedited decision by the City Manager.The City
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Manager shall issue a final decision on the matter within three (3)
days after the request for an expedited decision is made. Developer
shall then have recourse to its remedies at law or in equity.
7.DEVELOPER'S OBLIGATIONS:In consideration of the undertakings
by City set forth above, Developer agrees to the following:
(a)Construct a regional automobile and recreational vehicle sales and
service dealership on the Property referenced in Exhibit "A", and as
more fully detailed in Phase I of the Site Plan in Exhibit "0".Upon
purchase o f the Proper-ties,construction of improvements shall
commence no later than ninety (90) days after issuance by City of a
building permit for said improvements.The dealership shall be
completed and open to the public no later than April 1,2001,
subject to Force Majeure set forth below.
(b)Comply with all zoning,planning,engineering,landscaping and
screening requirements as are applicable to construction of said
improvements, and rezoning of the subject Properties, which are in
effect at the time building permits are issued.Developer and City
agree to cooperate in connection with Site Plan approvals and the
obtaining of such other permits or variances as may be required in
connection with such construction, and expressly acknowledge that
a portion of the Properties will need to be annexed to the City, and a
portion of the Properties will need to be rezoned for the anticipated
uses, which shall include the operation of a body shop, the use of
open metal bays for recreation vehicle service,car wash and
vehicle detailing,the use of exterior paging,the use of stucco-
covered metal construction and the use of the maximum allowable
lighting.Developer further agrees to cooperate with the City An
locating and granting appropriate utility and drainage easements.
(c)To design, construct, and maintain in perpetuity all water drainage
improvements,which at the discretion of the City Engineer,may
include the use of on -site drywells for such retention, as allowable
under the City's EngineerIng Guidelines.
(d)Dedicate all necessary rights -of -way and easements to City as the
City Engineer determines are appropriate in order for City to carry
out its road design and construction activities set forth above.
(e)Developer, as sole owner cf the property which in fee, shall sign any
petition for annexation as may be presented to it by City and will
take any action as may be necessary to cause the property to be
annexed into the municipal limits of City,which may include the
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obtaining of signatures of such other property owners not currently
known as may be necessary to properly effectuate annexation.
8.ZONING AND ANNEXATION:Upon annexation into municipal limits
of City as part of the annexation ordinance,pursuant to A.R.S. §9-471(L), the
Properties described in Exhibit "B" and Exhibit "C" shall be given the zoning
classification that is most similar to the Pinal County zoning classification of
General Rural.Upon an appropriately filed rezoning petition,City staff will
E upport a rezoning to General Commercial designation by Planned Dei,elopment
("C-3/PD"),pursuant to §16.0500 and Article 19 of the Apache Junction City
Code, Vol. I.,Land Development Code,Chapter 1 Zoning Ordinance.Staff will
further support limited uses for such properties,allowing commercial sales,
leasing,resale,servicing and detailing of new and used automobiles and
recreational vehicles, and any uses incidental thereto.
Developer agrees, understands and acknowledges,without limiting any other
remedy or relief for a subsequent breach of any of the terms and conditions of
the Agreement, that once the Annexation Property has been annexed into the
City of Apache Junction, there presently does not exist any statutory remedy for
such a breach by the City that would result in the Properties being de -annexed
from the City and returned to the status of property in the unincorporated area
of Pinal County.
9.DEFAULTS:In the event of a default,which default is not cured
within any applicable cure period, either party shall have the right to seek and
obtain all legal and equitable remedies otherwise available to it by law.
10.GOOD STANDING AND AUTHORITY:Developer represents and
warrants that it is duly formed and validly existing under the laws of the State of
Arizona,and is an Arizona Limited Liability corporation duly qualified to do
business in the state and is in good standing.City represents and warrants that
it is an Arizona municipal corporation.
11.FORCE MAJEURE:Neither City nor Developer shall be in default
under this Agreement in the event of enforced delay due to causes (a) beyond its
control and without fault or negligence, including but not limited to acts of God,
acts of public enemy, acts of the Federal or State government, acts of the other
party, acts of third parties,litigation concerning the validity or enforceability of
this Agreement or relating to transactions contemplated, including the effect of
petitions for referendum,fires,floods,epidemics,quarantine,restrictons,
strikes,embargoes,an unusually severe weather or the delays of
subcontractors or materialmen due to such causes; (b) bankruptcy, insolvency
or similar action, or any foreclosure or other exercise of remedies of any lender;
and (c) without limiting the foregoing. any action or inaction of City, its officers,
agents,departments,committees,Council,Boardmembers,commissioners,
which delays,directly or indirectly,Developer's ability to comply with any
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construction schedule or requirement imposed by this Agreement.In the event
of the occurrences of any such enforced delay,the time or times for
performance of the obligations of the party claiming delay shall be extended for
a period of the enforced delay; provided that the party seeking the benefit of the
provisions of this section shall within thirty (30) days after such party knows of
such enforced delay, first notify the other party of the specific delay in writing
and claim the right to an extension for the period of the enforced delay; provided
however that either party's failure to notify the other of an event constituting an
enforced delay shall not alter,detract from or negate its character as an
enforced delay was not known or reasonably discovered by such party.
12.MISCELLANEOUS:
(a)Notices:Unless otherwise specifically provided herein,all
notices, demands or other communication is given hereunder shall be in writing
and shall be deemed to have been duly delivered upon personal delivery or as of
the second business by after mailing by Unite l States mail, postage prepaid, by
certified mail, return receipt requested, addressed as follows:
To Developer:Jim Babe Earnhardt
Earnhardt Ford Sales Company
777 East Baseline Road
Tempe, AZ 85283
Mary LaRue Walker
Earnhardt General Counsel
1301 N. Arizona Avenue
Gilbert, AZ 85233
Robbyn McDowell
Earnhardt Chief Financial Officer
1301 N. Arizona Avenue
Gilbert, AZ 85233
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To City:Curtis Shook
City Manager
City of Apache Junction
1001 N. Idaho Road
Apache Junction, AZ 85219
Richard J. Stern
City Attorney
City of Apache Junction
1001 N. Idaho Road
Apache Junction, AZ 85219
Notice of address may be changed by either party by giving notice to the other
party in writing of a change of address.Such change shall be deemed to have
been effectively noticed five (5) days after being mailed by the party changing
address.
(b)Amendments:This Agreement may be amended only by a written
agreement fully executed by the parties hereto.Within ten (10) days after any
amendment to this Agreement,such Amendment shall be recorded with the
Pinal County Recorder.
(c)Days:The term "days" shall mean calendar days, unless otherwise
stated.In addition, if the day for any performance or event provided for herein is
a Saturday,Sunday, or other day on which national banks or the Office of the
City Clerk of the City of Apache Junction, Arizona,is not open for the regular
transaction of business, such day therefore shall be extended until the next day
on which such banks and said office are open for the transaction of business.
(d)Assignment and Transfer:Because City is reasonably relying on
promises made herein which if are fully executed will result in a substantial
public benefit, Developer shall not assign or transfer its rights and duties under
this Agreement without the prior written consent of City, which approval shall
not be unreasonably withheld.The term "transfer" shall Hclude a change in the
identity of the parties in control of the Properties, and shall mean a change in the
identity of the parties in control of the Properties.The Developer shall promptly
notify City of any changes whatsoever in the identity of the parties in control of
the Properties, or the degree thereof.
(e)Governina Law:This Agreement shall be governed by and
construed under the laws of the State of Arizona.This Agreement shall be
deemed made and entered into in Pinal County.
(f)Special Districts:City and Developer agree and acknowledge that if
requested by petition of property owners,City may consider the use of an
9
improvement district(s) or a community facilities district to assist other property
owners in providing for uses by said districts or community facilities districts.
(g)Waiver:No waiver by either party of a breach of any of the terms,
covenants or conditions of this Agreement shall be construed or held to be a
waiver of any succeeding or preceding breach of the same or any other term,
covenant or condition herein contained.
(h)Severability:In the event that any phrase,clause,sentence,
paragraph,section,article or other portion of this Agreement shall become
illegal, null or void or against public policy, for any reason, or shall be held by
any court of competent jurisdiction to be illegal, null or void or against public
policy, the remaining portions of this Agreement shall not be affected thereby
and shall remain in force and effect to the fullest extent permissible by law,
except if the remaining portions of the Agreement do not provide one or both of
the parties with the essential consideration for entering into this Agreement.
(i)Exhibits:All exhibits attached hereto are incorporated herein by
reference as though fully set forth herein.The exhibits are as follows:
Exhibit "A," Legal Description
Exhibit "E3," Legal Description.
Exhibit "C," Legal Description
Exhibit "D," Site Plan/Zoning Designation
Due to likely amendments to the Site Plan referenced above set forth in Exhibit
"0," the parties agree that only the Agreement and Exhibits "A," "B," and "C"
shall be recorded.A copy of the Site Plan shall be available and on file with the
City Clerk, as amended.
(j)Entire Agreement:This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and all prior
and contemporaneous agreements,representations,negotiations and
understandings of the parties hereto,oral or written, are hereby superseded
and merged herein.The foregoing sentence shall in no way affect the validity of
any instruments executed by the parties in the form of the exhibits attached to
this Agreement.
(k)Counterparts:This Agreement may be executed in multiple
counterparts, each of which shall constitute one of the same instrument.
(I)Consents and Approvals:City and Developer shall at all times act
reasonably with respect to any and all matters which require either party to
review, consent or approve any act or matter hereunder.
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(m)Enforcement by Either Party:This Agreement shall be enforceable
by any party hereto notwithstanding any change hereafter in any applicable
General Plan, specific plan, zoning ordinance, subdivision ordinance or building
ordinance adopted by City which substantially changes, alters or amends the
applicability of said plans or ordinances to the development of the Property.
(n)Cumulative Remedies:In addition to any other rights or remedies,
either party may institute legal action to cure, correct or remedy any default, to
enforce any covenant or agreement herein,• or to enjoin any threatened or
•attempted violation, including suits for declaratory relief, specific performance,
relief in the nature of mandamus and actions for damages.All of the remedies
described above shall be cumulative and not exclusive of one another, and the
exercise of any one or more of the remedies shall constitute a waiver or election
with respect to any other available remedy.The provisions of this subsection
are not intended to modify any provisions of this Agreement and are not
intended to provide additional remedies not otherwise permitted by law.
(o)Attorneys' Fees:In any arbitration, quasi-judicial or administrative
proceedings or any other action in any court of competent jurisdiction, brought
by either party to enforce any covenant or any of such party's rights or remedies
under this Agreement, includ: ng any action or declaratory or equitable relief,
each party shall bear their own attorneys'fees and all costs,expenses and
disbursements in connection with such action.
(p)No Third Party Beneficiaries/No Partnership:This Agreement is
made and entered into for the sole protection and benefit of the parties.No
person other than the parties shall have any right of action based upon any
provision of this Agreement.Additionally, it is not intended by this Agreement
to, and nothing contained in this Agreement shall, create any partnership, joint
venture or other arrangement between Developer and City.
(q)Successors and Assigns:Subject to the restrictions and
prohibitions on assignment in this Agreement,all of the covenants and
conditions set forth herein shall run with the land and shall be binding on the
successors in interest and assigns.
(r)Time is of the Essence:Time is of the essence in carrying out the
terms of this Agreement.
(s)Indemnity:Each party agrees to indemnify and hold harmless each
other, its departments, divisions,employees and agents, contractors from any
and all claims, liabilities, expenses or lawsuits as a result of or omissions of each
other, its agents or employees.
(t)Conflict of Interest:Pursuant to A.R.S. §38-511, incorporated herein
by reference, the parties understand and agree that this Agreement is subject to
1 1
cancellation by City or its department or agencies if any person significantly
involved in initiating, negotiating, securing, drafting or creating the contract on
behalf of the City, or its department or agency, is at any time, while the contract
or any extension of the contract is in effect, an employee or agent of any other
party to the contract with respect to the subject matter of the contract.
IN WITNESS WHEREOF,City has caused this Agreement to be duly
executed in its name and behalf of its Mayor and its seal to be hereunto duly
affixed and attested by its City Clerk, and Developer has signed an sealed the
same, on or as of the day and year first above written.
ATTEST
•-1
_
.76;
Kathleen ConneIly
City Clerk
APPROVED AS TO FORM:
cz‘ 8-19-99
Richard J. Stern
Apache Junction City Attorney
CITY OF APACHE JUNCTION, ARIZONA
An Arizona municipal corporation
Douglas CiiIeman, Mayor
EARNHARDT PROPERTIES LIMITED
PARTNERSHIP, an Arizona limited
partnership
By:ONLY CHAMPIONS, INC., arj_Ari
corporatis ener rtner
Frai J. nrnharett_111--
Its President
12
EXHIBIT "A"
The following is the legal description of the parcel identified as Pinal County
Assessor's Parcel No.102-20-0040.for an area totaling approximately 20 acres:
The Northeast quarter of the Southeast quarter of Section 33,
Township 1 North.range 8 East.Gila and Salt River Base and
Meridian.Pinal County.Arizona.
EXCEPT the South 594 feet thereof:and
EXCEPT that portion deeded to the State of Arizona which lies
Northerly and Easterly of the following described line:
BEGINNING at a point on the East line of said Section 33.which
point bears South 0 degrees 06 minutes 00 seconds East 434.00 feet
from the East quarter corner of said Section 33;
THENCE South 89 degrees 54 minutes 00 seconds West 57.01 feet:
THENCE North 7 degrees 13 minutes 26 seconds West 346.68 feet:
THENCE North 85 degrees 24 minutes 06 seconds East.1103.97 feet
(measured)North 85 degrees 23 minutes 15 seconds West 1103.73 feet
(record)to the POINT OF ENDING on the North line of said Northeast
quarter of the Southeast quarter of Section 33.
EXHIBIT "B"
The following is a general legal description of the parcel identified as Pinal
County Assessor's Parcel No.102-20-008A,102-20-008C,and 102-20-0080,for an
area totaling approximately 40 acres:
The Northwest quarter of the Southeast quarter of Section 33,
Township 1 North,Range 8 East,Gila and Salt River Base and
Meridian,Pinal County,Arizona.
EXHIBIT "C"
The following is a general legal description of the parcel identified as Pinal
County Assessor's Parcel No.102-20-0338 and 102-20-0470,for an area totaling
approximately 80 acres:
The West half of the Southwest quarter of Section 33,Township 1
North.Range 8 East,Gila and Salt River Base and Meridian,Pinal
County.Arizona.
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