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HomeMy WebLinkAboutRES 05-30RESOLUTION NO.05-30 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, EXPANDING THE BOUNDARIES OF THE SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 TO ALLOW SEWER SERVICE TO BE PROVIDED TO RANCHO MIRAGE MOBILE HOME PARK LOCATED OUTSIDE THE CORPORATE LIMITS OF THE CITY OF APACHE JUNCTION. WHEREAS, in the early 1990's, the City of Apache Junction (hereinafter the "City") formed the Superstition Mountains Community Facilities District No. 1 (hereinafter the "District") pursuant to Arizona Revised Statutes Annotated § 48-701, et seq.for the purpose of constructing sewer infrastructure and providing sewer service to City residents; and WHEREAS, the District is not permitted to provide sewer service outside of the corporate limits of the City of Apache Junction without the consent of the City; and WHEREAS, the District desires to expand its sewer service area to serve Rancho Mirage Mobile Home Park located at 2400 East Baseline Avenue, unincorporated Pinal County, Arizona, which property is deeded in a January 27, 2000, Fee Docket No. 2000-004121, legally depicted and described in Exhibit A (the "Property"); and WHEREAS, the City desires to permit the District to serve the Property, provided that the developer of such property agrees to: 1) consent to the City's annexation of the Property at any time after adoption of this resolution; and 2) abide by all terms and conditions in the draft Preannexation Development Agreement, attached to this Resolution as Exhibit B. NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of the City of Apache Junction, Arizona, as follows: SECTION 1 EXTENSION CONSENT The City of Apache Junction grants its consent to the Superstition Mountains Community Facilities District No. 1 to extend sewer service to the above -noted Property RESOLUTION NO.05-30 Page 1 of 2 provided that the District complies with all applicable laws and receives all necessary approvals prior to such extension of service. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS 4TH DAY OF OCT.011P3 , 2005." SIGNED AND ATTESTED TO THIS 4TH DAY OF OCTOBER DOUGLAS COLE Mayor ATTEST: KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM: q •9 -Os RICHARD J. STERN City Attorney RESOLUTION NO.05-30 Page 2 of 2 , 2005. QUAIL AVE. U M A _ • 26TH AVE. 29TH AVE. 1731-NA—L EOM' 33 SE CIR '6/ZAHN!'nnarrm A . - LT1 1 •I ,--.,.• -•.(4 •d c.i.t.0•= ,AVE ,.. .4 .:AVE I •\-\‘'.:. RE WA.Rpt M a : •. . I PUBLIC WORKS=I=1 ANIMAL CONTROL AN -I -05 EXHIBIT .A 23RD AVE1 g.••• ' r.an 609 Al/TD CENTER.D4 SOUTHERN PINAL COUNTY i •• CHN'ARRAL RR 37Th AVE 17ii4 AV. AAQPIArl F N ZID 39b4 AvE.39E 3 7TH A AVE 38TH AVE. BERMAN RD. AVE, I CJO , TH MET L i •L- A '--I 0 . r .FRANCHO MIRAGE MEP Legal Description: The South half of the Northwest quarter of the Southeast quarter and the Southwest quarter of the Southeast quarter of Section 34, Township 1 North, Range 8 East; of the Gila and Salt .River .Base and Meridian, Pinal County, Arizona; APN 103-22-019G. AREA TO BE ANNEXED BY • CITY OF APACHE • JUNCTION, AZ • North •Not to Scale EXHIBIT B -DRAFT- When recorded return to: Richard Joel Stern, Esq. Apache Junction City Attorney 300 East Superstition Blvd. Apache Junction, AZ 85219 PRE -ANNEXATION ECONOMIC DEVELOPMENT AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND CAX RANCHO MIRAGE, L.L.C. This Pre -Annexation Economic Development Agreement is entered into as of , 2005, by and between the CITY OF APACHE JUNCTION, an Arizona municipal corporation (hereinafter the "City") and CAX RANCHO MIRAGE, L.L.C., a Delaware limited liability company (hereinafter "Owner"). RECITALS: WHEREAS, Owner owns Pinal County Assessor Parcel No. 103-22-019G, as described and depicted in Exhibit A, attached hereto (the "Property"), comprising of a developed mobile home park with 312 rental spaces, on approximately sixty (60) acres located in unincorporated Pinal County; and WHEREAS, Owner and City are entering into this Agreement pursuant to the provisions of Arizona Revised Statutes Annotated ("A.R.S.") §§ 9-500.05 and 9-500.11 in order to facilitate annexation of the Property and to provide certain conditions which apply to the Property upon annexation; and WHEREAS, this Property is located in a commercially strategic area of the community which is near State Trust Land that is scheduled for auction and development in the near term; and WHEREAS,the Property is currently designated Pinal County Zoning Classification Manufactured Home Park ("MHP"); and WHEREAS, Owner desires to gain consent from the City for Superstition Mountains Community Facilities District No. 1 ("Sewer District") to provide sewer service to the property pursuant to A.R.S. § 48-709(A)(14); and WHEREAS,A.R.S.§9-500.05 authorizes the City to enter into a development agreement with a landowner to facilitate development of the property by providing for, among other things, the conditions, terms, restrictions and requirements for public infrastructure and the financing of public infrastructure; and WHEREAS, in approving this Agreement, the City Council finds that all activities relating to the development of the Property are economic development activities within the meaning of A.R.S.§9-500.11(C);that all expenditures by the City pursuant to the Agreement constitute the appropriation and expenditure of public monies for and in connection with economic development activities; and that it is appropriate to provide the Owner with the benefits in this Agreement as an inducement to the Owner to construct improved infrastructure in the City; and WHEREAS, the City Council further finds that development of the Property will substantially increase economic development activity in the City by: 1) increasing sales tax revenue; 2) creating and retaining jobs; 3) encouraging the development of property in the vicinity of the Property for retail purposes; 4) redirecting the public's retail expenditures to businesses located within the City's corporate limits; and 5) increasing the property values in/near the southeastern sector of the city. NOW THEREFORE, in consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1.Accuracy of the Recitals:The parties hereby acknowledge the accuracy of the Recitals set forth above, which are incorporated herein by this reference. 2.Term:This Agreement shall commence upon recordation with the Pinal County Recorder's Office and shall be in effect until all of the obligations have been satisfied as set forth in this Agreement,but in no event beyond December 31, 2025. 3.Restrictions on Development and Operation:During the Term hereof the development and operation of the Property including, without limitation, the type of use,the maximum height and size of buildings,building setback requirements, parking requirements, signage, landscaping requirements, loading zone requirements and provisions for reservation or dedication of land for public purposes, will be governed by the following in accordance with their current interpretation and practice (collectively the "Development Criteria") as they exist on the Effective Date: (a)The City's General Plan; and (b)Regulations and requirements set forth in the Apache Junction City Code, Land Development Code, Zoning Ordinance, 2 Engineering Guidelines, and in stand-alone ordinances and resolutions; and (c)Design Guidelines as developed by the Apache Junction Main Street Program; and (d)Parks and Open Space and Right -of -Way Standards. The City shall not impose or enact any additional ordinances,conditions, dedications,rules,regulations or policies applicable to or governing the development of this Property except as follows: (i) future land use ordinances, rules,regulations and policies of the City which are consistent with and not contrary to the vested zoning;and (ii) future land use rules,regulations and official policies of the City enacted as necessary,but only to the extent necessary, to comply with State and Federal laws and regulations, provided that in the event that the rules and regulations prevent or preclude compliance with this Agreement,such provisions of this Agreement shall be modified as necessary in order to comply with the new laws or regulations wherever possible. 4.Zoning and General Plan Compliance: (a)The current County zoning designation for the property is Mobile/Manufactured Home Park ("MHP").Upon annexation pursuant to A.R.S. § 9-471, the City Zoning designation will be Trailer Homesite ("TH"). (b)The current use of the property is less intense than, but not in conflict with, the General Plan Designation of High Density Residential. 5.City's Obligations: (a)City shall initiate proceedings to annex property into the City limits no later than December 31, 2005. (b)City shall consider passage of a resolution allowing sewer district to service the Property for all commercial uses,no later than December 31, 2005. (c)City acknowledges Owner's intent to improve the half streets of Baseline Avenue and Cortez Road to City Street Standards, including pavement, curb, gutters, sidewalks, streetlights and landscaping. 3 6.Owner's Obligations: (a)Owner shall sign an annexation petition as presented by the City and take any other action necessary to cause Property to be annexed into the corporate limits of City,which may include assisting City in obtaining signatures of other property owners to such petitions as may be necessary in order to properly effectuate annexation,no later than December 31, 2005,or earlier,which enables City to fully carry out this annexation. (b)Owner shall no later than December 1, 2005:1) within the Baseline Avenue and Cortez Road right-of-way, dedicate any previously undedicated right-of-way and utility easements to the City and any utility facilities to the City;2) comply with all public construction standards associated with public water and sewer systems; and 3) improve the Baseline Avenue and Cortez Road half streets to City Street Standards, including pavement,curbs,gutters,sidewalks,street lights and landscaping. 7.City Representations:The City is a duly organized, validly existing municipal corporation in the State of Arizona.The individuals executing this Agreement have all necessary authority to enter into this Agreement and to bind the City. Aside from what has already been disclosed, the City is not aware of any litigation, referendum, investigation, initiative or proceeding pending or, to the knowledge of the City,contemplated against the City,the Property,this Agreement,the zoning of the Property,or the levy or collection of any City Privilege Tax which would impair or adversely affect the City's ability to perform its obligations under this Agreement or under any instrument or document related hereto or which would impair or adversely affect activity on the Property. 8.Owner's Representations:Owners acknowledge that Owner's representations are true in all material respects as of the date of this Agreement, and that it is a Delaware limited liability company authorized to conduct business in the State of Arizona.The transactions contemplated by this Agreement, the execution of this Agreement and Owner's performance hereunder have been duly authorized by all requisite action of Owner or its agents and no other approval or consent is required for this Agreement to be binding upon Owner. 4 9.Cooperation and Procedure for Disputes: (a)Appointment of Representatives.To further the commitment of the parties to cooperate in the implementation of this Agreement,the City and Owners each shall designate and appoint a representative to act as a liaison between the City and its various departments and Owner.The initial representative for the City (the "City Representative") shall be the City Manager or his designee and the initial representative for Owner shall be Kelly Kirkham.The representatives shall be available at all reasonable times to discuss and review the performance of the parties' respective obligations under this Agreement (b)Expedited City Decisions.The City and Owner agree that Owner must be able to proceed expeditiously,and that, accordingly, an expedited City review process is necessary. The City shall review all plan review and construction matters in an expedited manner.The City shall, to the extent required by law, publish, post and give all notices relating to the same in a diligent and expeditious manner.The parties agree that if at any time Owner believes that an impasse has been reached with the City staff concerning any issue affecting the Property, City shall assign said dispute to the appropriate board or commission having jurisdiction over the same for adjudication and disposition on an expedited basis.If the issue on which an impasse has been reached is an issue where a final decision can be reached by City Staff, the City Representative shall give Owner a final decision within fourteen (14) calendar days after the request for an expedited decision is made.If the issue on which an impasse has been reached is one where a final decision requires action by the City Council, the City Representative shall be responsible for scheduling a City Council hearing on the issue at the next available City Council meeting after the request for an expedited decision is made; provided however, that if the issue is appropriate for review by the City's Planning and Zoning Commission,Construction Board of Appeals or Board of Adjustment, the matter shall be handled as quickly as legally possible. (c)Default Failure or unreasonable delay by either party to perform any term or provision of this Agreement for a period of ten (10)calendar days (the "Cure Period")after written notice thereof from the other party shall constitute a material default under this Agreement Said notice shall specify the 5 nature of the alleged material default and the manner in which said material default may be satisfactorily cured, if possible.If any party to this Agreement is in material default under any provision, the non -defaulting party shall be entitled to pursue any and all remedies available to it at law or in equity, subject first to the Mediation provision set forth below. 10.Mediation:If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled as set forth above, the parties agree first to try to settle the dispute through mediation before resorting to arbitration, litigation or some other formal dispute mechanism. In the event that the parties cannot agree upon the selection of a mediator within seven (7) calendar days, either party may request the presiding judge of the Superior Court of Pinal County to assign a mediator from a list of mediators maintained by the Arizona Municipal Risk Retention Pool. 11.Notices and Filings: (a)Manner of Serving.All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith shall be validly given,filed,made, delivered or served if in writing and delivered personally or sent by express or overnight mail or by registered or certified first class United States Mail, postage prepaid, as follows: If to the City, to:George Hoffman, City Manager 300 East Superstition Blvd. Apache Junction, Arizona 85219 And to:Richard Joel Stern, City Attorney 300 East Superstition Blvd. Apache Junction, Arizona, 85219 If to Owner:Robert G. Blatz President and Chief Operating Officer 29399 U.S. Hwy 19 North, Suite 320 Clearwater, Florida, 33761 The parties may from time to time designate in writing and deliver in a like manner any other such address which they deem necessary without modifying this Agreement. 12.Mailing Effective:Notices,filings,consents,approvals and communication given by mail shall be deemed delivered upon receipt or refusal. 13.General: (a)Waiver.No delay in exercising any right or remedy shall constitute a waiver thereof, and no wavier by the City or Owner of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. (b)Attorney Fees.In any 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, including any action or declaratory or equitable relief, each party shall bear their own attorney fees and all costs, expenses and disbursements in connection with such action, unless such action is determined by a Court to be brought in bad faith, in such case the court may order attorney fees and costs be paid to the prevailing party. (c)Counterparts.This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signature of all parties may be physically attached to a single document (d)Headings.The descriptive headings of the paragraphs of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. (e) (f) Exhibits. Any exhibit attached hereto shall be deemed to have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. Further Acts.Each of the parties hereto shall execute and deliver all such documents and perform all such acts as reasonably necessary,from time to time,to carry out the matters contemplated by this Agreement. 7 (g)Time of the Essence and Successors/Assignment and Transfer. (i)Time is of the essence in the performance and obligation contained in this agreement. (ii)Owner may only assign or transfer its rights or obligations hereunder if:(A) City is provided sixty (60) calendar days advance notice of such assignment or transfer;and (B)City consents in writing to such assignment or transfer.The term "transfer"means a change in the identity of the parties in control of the property. Owner shall further notify City of any changes in the identities of the parties in control of the Property. (h)No Partnership and Third Parties.It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership,joint venture or other similar arrangement between Owner and the City.No term or provision of this Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. (i)Entire Agreement.This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof.All prior and contemporaneous agreements, representations and understandings of the parties,oral or written, are hereby superseded and merged herein. (j)Amendment No change or additions to be made to this Agreement except by a written amendment executed by the parties hereto.Within ten (10) calendar days after execution of any amendment to this Agreement, such amendment shall be recorded, at the City's expense, in the Official Records of Pinal County, Arizona. (k)Recordation and Effective Date.City shall record this Agreement in its entirety, at its own expense in the Official Records of Pinal County,Arizona.This Agreement shall become effective and shall be binding upon and enforceable by all parties hereto,their successors and assignees, immediately upon recordation in the Office of the Pinal County Recorder. (I)Delays in Performance.Neither City nor Owner shall be in default under this Agreement in the event of delay due to: (a) causes beyond its control and without fault or negligence, including but not limited to acts of God, acts of the Federal or State government, acts of the other party, acts of third parties, terrorist acts,litigation concerning the validity or enforceability of this Agreement or relating to transactions contemplated, including the effect of petitions for referendum, or initiative, fires, floods, epidemics, quarantine, restrictions, strikes, embargoes, unusually severe weather or the delays of subcontractors or material men 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,Owner's ability to comply with any construction schedule.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 delay; provided that the party seeking the benefit of the provisions of this section shall within thirty (30) calendar days after such party knows of such delay, first notify the other party of the specific delay in writing and claim the right to an extension for the period of the delay;provided however that either party's failure to notify the other of an event constituting a delay shall not alter,detract from or negate its character as a delay was not known or reasonably discovered by such party. (m)Governing Law and Venue.The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona.Any action at law or in equity brought by either party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona.The parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. (n)Severability.Every provision of this agreement is, and will be construed to be, a separate and independent covenant.If any provision of this agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this agreement or the application of that provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by that invalidity or unenforceability, and each provision of this agreement will be valid and will be enforced to the extent permitted by the law,and the parties will negotiate in good faith for such amendments of this agreement which may be necessary to achieve its intent,notwithstanding such invalidity or unenforceability. (o)Indemnity.The parties to this Agreement agree to indemnify and hold harmless each other,their officers,departments, divisions,employees and agents, and contractors from any and all claims, liabilities, expenses or lawsuits as a result of the acts or omissions of each other. (13) (q) Successors and Assigns.Provided that effective assignments are made and subject further to the restrictions and prohibitions on assignment set forth in this Agreement, all of the conditions set forth herein shall inure and be binding upon the successors in interest of each of the parties hereto. 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 cancellation by City or its departments or agencies if any person significantly involved in initiating, negotiating,securing,drafting or creating the contract on behalf of the City, or its departments or agency, is at any time, while the Agreement or any extension or modification thereof, is in effect an employee or agent of any other party to the Agreement with respect to the subject matter of the Agreement. (r)Future Effect:The provisions of this Agreement are binding upon and shall inure to the benefit of the Parties, and all of their successors in interest and assigns; provided; however, that Owner's rights and obligation hereunder may be assigned, in whole or in part, only to a person or entity that has acquired title to the Property or a portion thereof and only by a written instrument recorded in the Official Records of Pinal County, Arizona, expressly assigning such rights and obligations, and consistent with the conditions set forth in Section 13(g). IN WITNESS WHEREOF, we have hereunto set our hands and seals on the date and year first above written. CAX RANCHO MIRAGE, L.L.C., a Delaware Limited Liability Company By:Robert G. Blalz Its:President. Chief Operating Officer State of ) ss County of The foregoing instrument was acknowledged before me this day of , 2005, by on behalf of CAX RANCHO MIRAGE, L.L.C. (Seal and Expiration Date) Notary Public APRROVED AS TO FORM: By: Michael Parham, CAX Rancho Mirage Counsel Date: CITY OF APACHE JUNCTION, an Arizona municipal corporation By:Douglas Coleman Its:Mayor 11 ATTEST: Kathleen Connelly, City Clerk State of County of ) ss The foregoing instrument was acknowledged before me this day of ,2005,by Douglas Coleman,the Mayor of the City of Apache Junction, an Arizona municipal corporation, on behalf of the corporation. (Seal and Expiration Date) APPROVED AS TO FORM: Notary Public By: R. Joel Stern, City of Apache Junction Counsel Date: 12 29TH AVE ceLi.t_. Lii' 4138111AW. DE WIZA e—HttilL QUAIL AVE. 26TH AVE. YUMA AN -I -05 •EXHIBIT A <123RD A YEL_ANE 1AAI AVE. ( P [1-3INALIMalc ICOUNTYR ,11711- - -33 3iTH ANT,Auto cerrER gl •..VE , 17111 AVE I=I v0-107' -- j EJ PUBLIC VORKS ANIMAL CONTROL 1:56-11•ct SOUTHERN WARM RA 37TH AVE- 37111 _AVE_ LAN4,4111 AVE.,E I/1 .AV!,5 a?al E3 c.) AVE, 38Th AVE.—I .r BEIVHAl4 " .CliNEluu" r'" 9 MIRAGE 1VIHP • Legal Description:.The South half of the Northwest quarter of the Southeast quarter and the Southwest quarter of the Southeast quarter of Section 34, Township 1 North, Range 8 East, of the Gila and Salt.River .Base and Meridian, Pinal County, Arizona; APN 103-22-019G.• AREA TO BE ANNEXED BY • CITY OF APACHE JUNCTION, AZ 7/ North •Not to Scale