HomeMy WebLinkAboutRES 06-51RESOLUTION NO. 06-51
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION, PINAL COUNTY, ARIZONA, APPROVING A
PRE -ANNEXATION ECONOMIC DEVELOPMENT AGREEMENT WITH
DESERT MESA HOLDINGS, L.L.C.
WHEREAS, the City of Apache Junction ("City") and Desert
Mesa Holdings L.L.C.("Developer"), have negotiated a pre-
annexation economic development agreement for improvements on
property near the industrial center of the City, including
approximately 2.5 acres owned by Developer; and
WHEREAS, the parties have crafted a written development
agreement which sets forth the parties' obligations for such
development; and
WHEREAS, pursuant of A.R.S. § 9-500.05(A), a municipality
by resolution or ordinance may enter into a development
agreement relating to specific properties within the
municipality; and
WHEREAS, the development agreement entitled "Pre -Annexation
Economic Development Agreement Between City of Apache Junction
and Desert Mesa Holdings, L.L.C." is consistent with the City's
general plan.
NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF APACHE JUNCTION, ARIZONA AS FOLLOWS:
1.The Mayor and City Council approve the "Pre -Annexation
Economic Development Agreement Between City of Apache
Junction and Desert Mesa Holdings, L.L.C." and the
Mayor is hereby authorized to sign the agreement.
2.Staff shall record such document in the Pinal County
Recorder's office within 10 days after execution.
RESOLUTION NO. 06-51
PAGE 1 OF 2
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS 17TH DAY OF OCTOBER , 2006.
SIGNED AND ATTESTED TO THIS J/JH DAY Or OCTOBER ,2006.
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM:
ro.c4 .0G
RICHARD J. STERN
City Attorney
RESOLUTION NO. 06-51
PAGE 2 OF 2
DOUGLAS COLEMAN
Mayor
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 DESERT MESA HOLDINGS, L.L.C.
THIS PRE -ANNEXATION ECONOMIC DEVELOPMENT AGREEMENT is
entered into as of , 2006, by and between the CITY OF APACHE
JUNCTION, an Arizona municipal corporation (hereinafter the "City") and DESERT
MESA HOLDINGS,L.L.C.,an Arizona limited liability company (hereinafter
"Owner").
RECITALS:
WHEREAS, Owner owns Pinal County Assessor Parcel No. 102-20-009E, as
described and depicted in Exhibit A, attached hereto (the "Property"), comprising
of an undeveloped parcel, on approximately two and one-half (2.5) 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 Light Industry and Warehouse ("CI -1"); 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 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, 2026.
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,
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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.
4.Zoning and General Plan Compliance:
(a)The current County zoning designation for the property is
Light Industry and Warehouse Zone ("CI -1"). Upon annexation
pursuant to A.R.S. § 9-471, the City Zoning designation will be
Light Industry and Warehouse Zone ("CI -1").
(b)The current use of the property is less intense than, but not in
conflict with,the General Plan Designation of
Employment/Retail.
5.City's Obligations:
(a)City shall initiate proceedings to annex Property into the City
limits.
(b)City shall consider passage of a resolution allowing sewer
district to service the Property for industrial uses.
(c)City acknowledges Owner's intent to improve the half streets
of South Cactus Road to City Street Standards,including
pavement, curb, gutters, sidewalks, streetlights, fire hydrants,
and landscaping, and any other street or public improvement
standards that are currently lacking.
6.Owner's Obligations:
(a)Owner's authorized representative shall sign an annexation
petition when 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.
(b)Subsequent to annexation, and upon verification of clear title,
Owner shall dedicate any previously undedicated right-of-way
and utility easements to the City.
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(c)No later than April 19, 2007, Owner shall comply with all public
construction standards associated with public water and
sewer systems.
(d)No later than April 19, 2007, Owner shall finish improving the
South Cactus Road half street to City Street Standards,
including pavement, curbs,gutters,sidewalks, street lights,
fire hydrants, and landscaping.
(e)No later than December 1, 2006, Owner shall provide a site
plan designed in accordance with City standards including
zoning (setbacks and heights),engineering (retention and
drainage),and landscaping and screening standards
(landscape strips,masonry buffer walls);however,it is
mutually understood that seventy-five percent (75%) of the
metal façades shall not be required to have supplemental
building materials as long as all planted trees be a minimum of
twenty-four inch (24")box size and there be a twenty-five
percent (25%) additional plant density for the site.
(0
(9)
(h)
No later than April 19, 2007, Owner shall provide at least one
(1)fire hydrant on site (location to be determined by Fire
Marshal).
No later than December 1,2006,Owner shall provide City
necessary sets of review plans.
Upon City's issuance of the construction permit for the site,
Owner shall pay all applicable development fees in full to the
Development Services Department.
No later than December 1, 2006, Owner shall submit to City all
required plans and shall submit to Pinal County any and all
permit fees; it is mutually understood that Owner shall abide
by all City building codes in development of this property even
though at the time of construction the property may still be
under Pinal County jurisdiction.
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
4
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:Owner 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.
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 Owner 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
City Manager George Hoffman or his or her designee and the
initial representative for Owner shall be Vice President John
Harden.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
5
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
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:City Manager
300 East Superstition Blvd.
Apache Junction, Arizona 85219
And to:City Attorney
300 East Superstition Blvd.
6
If to Owner:
Apache Junction, Arizona 85219
Bruce W. Nave, Member
Or John R. Harden, Appointed Representative
3640 South Cactus Road
Apache Junction, Arizona 85219
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 theY 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
7
Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
(e)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.
(f)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.
(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)
(m)
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.
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.Owner agrees to indemnify and hold harmless City,
its appointees,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
Owner or its agents.
(3)
(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) (ii).
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the
date and year first above written.
ATTEST:
Kathleen Connelly, City Clerk
APPROVED AS TO FORM:
By:C19—dit4
R. Joel Stern, City Attorney
DESER SA HOLDIIVS, L.L.C., an
Ariz96Amited 1,labiN Company
CITY OF APACHE JUNCTION, an Arizona
municipal corporation
By:Douglas Coleman
Its:Mayor
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