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HomeMy WebLinkAboutRES 07-41RESOLUTION NO. 07-41 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, AUTHORIZING THE CITY TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE WATER UTILITIES COMMUNITY FACILITIES DISTRICT (CITY OF APACHE JUNCTION, ARIZONA) FOR COOPERATIVE COST SHARING ON WATER SYSTEM INFRASTRUCTURE. WHEREAS,the City of Apache Junction ("City")and Water Utilities Community Facilities District (City ,of Apache Junction,Arizona)("WUCFD")desire to enter into an Intergovernmental Agreement ("IGA")allowing City to assist WUCFD in water system infrastructure costs which is critical to future growth south of U.S. 60; and WHEREAS, the parties have crafted a written agreement which sets forth the conditions for such arrangement; and WHEREAS, pursuant of A.R.S. § 9-500.11, a municipality may appropriate and spend public monies for and in connection with infrastructure development activities; and WHEREAS,WUCFD recently sold approximately sixteen (16) acres of land to Empire Southwest,L.L.C.,("Empire")which plans to build a 20,000 square foot rental,sales and service center for heavy construction machinery and equipment; and WHEREAS,the economic development activities created by Empire will assist in the retention of jobs or will otherwise improve or enhance the economic welfare of the inhabitants of the City as identified under A.R.S. § 9-500.11(D)(1); and WHEREAS,pursuant to A.R.S.§11-952(A),public entities may enter into Intergovernmental Agreements for joint or cooperative action. 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 Intergovernmental Agreement with Water Utilities RESOLUTION NO. 07-41 PAGE 1 OF 2 Facilities District (City of Apache Junction, Arizona) for Cooperative Cost Sharing on Water System Infrastructure and the Mayor is hereby authorized to sign the agreement on behalf of the City. 2.Staff shall record such document in the Pinal County Recorder's office within sixty (60)days after full execution by both entities. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS 4TH DAY OF SEPTEMBER 2007. SIGNED AND ATTESTED TO THIS 4TH DAY OF SEPTEMBER,2007. ATTEST: KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM: < 2 t --8-27.07 RICHARD J. STERN City Attorney RESOLUTION NO. 07-41 PAGE 2 OF 2 INTERGOVERNMENTAL AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND WATER UTILITIES COMMUNITY FACILITIES DISTRICT FOR COOPERATIVE COST SHARING ON WATER SYSTEM INFRASTRUCTURE THIS AGREEMENT is made and entered into this t—day of September, 2007, by and between THE CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation (hereinafter referred to as "City"),and the WATER UTILITIES COMMUNITY FACILITIES DISTRICT,an Arizona municipal corporation (hereinafter referred to as "WUCFD") (collectively referred to as th "Parties"). RECITALS WHEREAS, WUCFD sold to Empire Southwest, L.L.C. ("Developer") a 16.2 acre parcel of unimproved real property which is located at the northeast corner of the Winchester Road and 34th Avenue intersection, Apache Junction, Arizona, ("Property"); and WHEREAS,it is the Intent of Developer to develop the Property, construct, and operate a heavy construction equipment rental, sales, and $rvice facility consisting of buildings and improvements of approximately 20,000 square feet on the Property that will support 15 full-time jobs ("Project"); and WHEREAS, WUCFD sold the Property with the City's encouragement in ord r to provide for completion of the Project which will result in aesthetically pleasing,planned,and orderly development of the Property and other properties in close proximity to the Property,as well as improving or nhancing the economic welfare of the City's residents or businesses and tax revenues for the City as verified in an independent study compiled by Applied Economics,a copy of which is on file with City's Economic Development Dir ctor and incorporated herein by this reference; and WHEREAS,WUCFD is in need of improving its water system by enhancing its use of its Central Arizona Project ("CAP") water allocation; and WHEREAS, it is in the City's best interests for WUCFD to increase its us of CAP Water and increase its infrastructure to prepare for growth within the City limits caused by Arizona State Land Department's sales and/or leases of r al property to developers; and WHEREAS, th Project will provide on -going r venues for the City as d cument d In the Applied Economics rep rt that the City would like to shar with WUCFD for WUCFO's on -going infrastructure construction; and WHEREAS, pursuant to Arizona Revised Statutes Annotated ("A.R.S.n) Section 11-951,of seq.,the parties are authorized to enter into int rgovernmental agreements for the purposes of exchanging property and taking joint or cooperative action. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuableconsideration, the receipt and adequacy of which is hereby acknowledged, the parties to this Agreement agree as follows: 1.RECITALS:The Recitals are incorporated herein by reference and ar part of this Agreement but are not intended to expand the scope, numb r, or nature of parties'obligations beyond those expressly set forth in th numbered sections of this Agreement. 2.CITY'S OBLIGATIONS:City hereby agrees to do or cause to happen the following: a)Pay to WUCFD an amount equal to all development, Inspection, and permit fees received from Developer (or its contractors) related to the Project.Such payment shall be effectuated within thirty (30) calendar days after City has received such fees. b)Pay to WUCFD an amount equal to 50% of the gross revenues that the City receives from the Developer's construction and operation of th Project on the Property during the duration of this Agreement. 3.DURATION OF AGREEMENT/TERMINATION:This Agreement shall b valid upon execution and shall continue for a term of five (5) years, and shall aut matically renew for five (5) years unless either party terminates this Agreement for any reason upon sixty (60) days' written notice to the oth r party. 4.ENTIRE AGREEMENT:This instrument contains the entire agr ement between the parties hereto with respect to the subject matter contained in it and supersedes all prior and contemporaneous agreements, discussions and representations related thereto.No supplement, modification or amendment hereof shall be binding and effective unless in writing and signed by all of the parties. 5.SEVERABILITY:In the event that any phrase, clause, sentence, paragraph, section, article or other portion of this Agreement shall become Illegal, nun or void or against public policy, for any reason, or shall be held by 2 any court of competent Jurisdiction to be illegal, null or void or against public policy, the remaining porti ns of this Agreem nt shall not be affected thereby and shall remain in force and effect to the fullest extent permissible by law, xc pt if the remaining portions of the Agreement do not provide one or both of th parties with the essential consideration for entering into this Agreement. 6.GOVERNING LAW.VENUE AND ATTORNEY FEES:This Agr ement 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 and the Parties shall not move to change venue. Any action at law or In quity 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 Pine! County, Arizona. The parties hereby, waive all provisions f law providing for a change of venue in such proceeding to any other county. In th event either party shall bring suit to enforce any term of this Agreement r to r cover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including reasonable attorneys fees to b determined by the court in such action. 7.NOTICES:All notices and Insurance certificates required under this Agreement shall be sent as follows: If to City:George Hoffman, City Manager 300 E. Superstition Blvd. Apache Junction, AZ 85219 And to:R. Joel Stern City Attorney City of Apache Junction 300 E. Superstition Boulevard If to WUCFD:Frank Blanco, Director Apache Junction Water District 112 E. rd Avenue Apache Junction, AZ 85219 With a copy to:Kay Bigelow, District Counsel Gammage & Burnham, P.L.C. 2 North Central Avenue, Suite 1800 Phoenix, Arizona 85004 8.Section Headings:The Section headings contained in this Agreement are for convenience in reference only and are not intended to d fine or limit the scope of any provision of this Agreement 3 9.Good Faith of Parties:Exc pt wher any matter is xpr ssly stet d to be in the sole discr tion of an ntity, in p rformance of this Agr ement or in considering any requested extension of time, the entitles agree that each will act in good faith and will not act unreasonably, arbitrarily or capriciously and will not unreasonably withhold, delay or condition any requested approval, acknowledgment or consent. 10.Assignment and Transfer:Because City is reasonably relying on promises made herein which if are fully executed will result in a substantial public benefit, WUCFD shall not assign or transfer its rights and duties under this Agreement without City's consent,which shall not be unreasonably withheld. 11.Waiver:No waiver by either party of a breach of any of the terms, coy nants 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, coy nant or condition herein contained.Without limiting the provisions of this Agreement, the entities agree that neither the failure nor the delay of any entity to xercise any right, remedy, power or privilege under this Agreement shall p rate as a waiver of such right, remedy, power or privilege, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any oth r or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.No waiver shall b effective unless it Is in writing and is signed by the entity asserted to hay granted such waiver. 12.Consents and Approvals:City and WUCFD shall at all times act r asonabiy with respect to any and all matters which require either party to r view, consent or approve any act or matter hereunder. 13.No Third Party Beneficiaries/No Partnership:This Agreement is made and entered into for the sole protection and benefit of the parties.No p rson 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 WUCFD and City. 14.Time is of the Essence:Time is of the essence of this Agreem nt and in carrying out the terms of each provision hereof. 15.Conditions Precedent to City Performing its Obligations:City shall only be obligated to make the payments noted in Section 2 if the sale between D veioper and WUCFD is fully consummated and Developer develops th Prop rty as d scribed in this Agreem nt. 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement t b duly executed as of the day and year first above written. ATTEST: WATER UTILITIES COMMUNITY FACILITIES DISTRICT, an Arizona municipal corporation BY:41 L '-'-'-o- hn S. Insalaco, Chairman CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation B yk jp - - a 4 c E z - - e - a -- hn S. !flea aco. Mayor Kathleen Connelly, City Clerk ithd WUCFD Clerk 5 COUNSEL APPROVAL AS TO FORM: I have read this Agreement and have determined such Agreement is In proper f rm and Is entered into within the powers of and authority granted under th laws of the State of Arizona. I have read this Agreement and have determined such Agreement is in prop r form and is entered into within the powers of and authority granted under the laws of the State of Arizona. R. Joel Stern, Apache Junction City Attorney 6 Date