HomeMy WebLinkAboutRES 09-15RESOLUTION NO. 09-15
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION, PINAL COUNTY, ARIZONA, APPROVING A
PRE -ANNEXATION DEVELOPMENT AND DRAINAGE SETTLEMENT
AGREEMENT WITH FORTUNE TRAVEL, INC.
WHEREAS,Fortune Travel,Inc.("Landowner")proposes to
develop real property consisting of approximately one hundred
twenty-three (123)acres located adjacent to the southeast
corner of Meridian Drive and Southern Avenue in unincorporated
Final County,Arizona (the "Property"),as an active adult
manufactured home community consisting of approximately 650
residential units and a clubhouse and in exchange will be
reimbursed in an amount of $160,000.00 for adjacent drainage
improvements that Landowner constructs to City standards; and
WHEREAS, the City of Apache Junction ("City") and Landowner
have crafted a written pre -annexation development and drainage
settlement agreement which sets forth the parties'obligations
with respect to such development; and
WHEREAS,City has determined that development of the
Property will result in significant planning, economic and other
public benefits to City and its residents by providing for
public improvements, by increasing tax revenues to City arising
from or relating to the improvements to be constructed on
Property,by creating a number of new jobs and otherwise
enhancing the economic welfare of the residents of City; and
WHEREAS,pursuant of A.R.S.§ 9-500.05(A),a municipality,
by resolution or ordinance,may enter into a development
agreement that sets forth specific project contingencies; and
WHEREAS,the attached pre -annexation development and
drainage settlement agreement entitled "Pre -Annexation
Development and Drainage Settlement Agreement with Fortune
Travel, Inc." is consistent with City's 1999 General Plan; and
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
Development and Drainage Settlement Agreement with
Fortune Travel, Inc. and the Mayor is hereby
authorized to sign the agreement (an unexecuted copy
of the final version is attached hereto as Exhibit A).
RESOLUTION NO. 09-15
PAGE 1 OF 2
2.Staff shall record such document in the Pinal County
Recorder's office within ten (10) calendar days after
full execution by both parties.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS 18TH DAY OF AUGUST , 2009.
SIGNED AND ATTESTED TO THIS 18TH DAY OF
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM:
c=07 .6"-09
RICHARD J. STERN
City Attorney
RESOLUTION NO. 09-15
PAGE 2 OF 2
AUGUST, 2009.
(3.94iN S. INgALACO
Mayorayor
EXHIBIT A
PRE -ANNEXATION DEVELOPMENT AND
DRAINAGE SETTLEMENT AGREEMENT
CITY OF APACHE JUNCTION, ARIZONA
an Arizona municipal corporation,
and
FORTUNE TRAVEL, INC.
an Oregon corporation
August 18 ,2009
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PRE -ANNEXATION DEVELOPMENT AND
DRAINAGE SETTLEMENT AGREEMENT
This PRE -ANNEXATION DEVELOPMENT AND DRAINAGE SETTLEMENT
AGREEMENT ("Agreement")is entered into by and between the CITY OF APACHE
JUNCTION, an Arizona municipal corporation ("City") and FORTUNE TRAVEL, INC., an
Oregon corporation ("Developer").City and Developer are sometimes herein referred to
collectively as "Parties", or individually as a "Party".
RECITALS
1.Developer owns approximately one hundred twenty-three (123) acres of unimproved real
property, Pinal County Assessor Parcel Nos. 102-19-003A and 102-19-0038, located adjacent to
the southeast corner of Meridian Boulevard and Southern Avenue in unincorporated Pinal
County, Arizona (the "Property"), the legal description and map of which are attached hereto as
Exhibit A and are incorporated herein by reference.
2.The Parties desire that the Property be annexed into the corporate limits of the City; and
once annexed, it is the intention of Developer to develop the Property in phases as an active adult
manufactured home community consisting of approximately 650 residential units and a
clubhouse.
3.The annexation of the Property, the contemplated development and use of the Property
pursuant to this agreement are consistent and in harmony with the 1999 Apache Junction General
Plan ("General Plan").
4.Developer 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).
5.Developer has submitted, or will submit, a completed development review application for
the Property (which includes, but is not limited to, applications for approval of grading and
drainage,traffic,elevations,site plan,landscaping,and signage)for review by City in
accordance with City's customary and ordinary zoning,planning and development review
processes.The proposed Site Plans for the Property are attached hereto as Exhibits B-1, B-2, B-
3 and B-4.
6.It is anticipated that development of the Property pursuant to this Agreement will result in
aesthetic, planning,economic and other tangible and intangible public benefits to the City
including providing for the construction of the Public Roadway Improvements and Drainage
Improvements as more fully described in Exhibit C,providing for planned and orderly
development of the Property, adding to the tax base and otherwise increasing tax revenues to the
City arising from or relating to the Property, improving or enhancing the economic welfare of the
residents or businesses of the City and advancing the goals of the Apache Junction General Plan,
and providing for additional tangible and intangible municipal benefits provided for in this
Agreement.
7.The Parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning of, and entered into pursuant to the terms of, A.R.S. §§ 9-500.05
and 9-500.11. In order to facilitate the annexation, this Development Agreement provides for,
among other things: (i) conditions, terms, restrictions and requirements for the annexation of the
Property by the City; (ii) the permitted uses of the Property; (iii) the density and intensity of such
uses; and (iv) other matters related to the development of the Property.The terms of this
Agreement shall constitute covenants running with the land as more fully described in this
Agreement.
8.This Agreement is also intended to settle any and all fugitive drainage claims, objections,
and alleged stormwater drainage damages that currently exist or could be brought by either
Party, and fully to release and discharge all claims that either Party may have against the other in
connection with such claims and damages.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises
and covenants set forth herein, and for other consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties hereto state, confirm and agree as follows:
SECTION 1.ACCURACY OF THE RECITALS
The Parties hereby confirm the accuracy of the Recitals set forth above, which are incorporated
herein by this reference.
SECTION 2.TERM
This Agreement shall commence on the date that the conditions in Section 4 are satisfied and
this Agreement is recorded ("Effective Date") with the Pinal County Recorder's Office and shall
continue until May 30, 2030, or until all obligations have been fully performed, which ever date
is sooner.Notwithstanding the foregoing, provided City is not in default, all obligations of
Developer to indemnify, defend and hold the City harmless shall survive the expiration or earlier
termination of this Agreement.
SECTION 3.APPLICABLE LAWS
The development and operation of the Property including, without limitation, the type of use, the
maximum height and size of the buildings, building setback requirements, parking requirements,
signage, landscaping requirements, provisions for dedication of land for public purposes, will be
governed by the following, as they exist on the Effective Date and as amended by the Mayor and
City Council from time to time provided the changes are not in conflict with the Development
Agreement or Planned Area Development and does not alter including the density, design
criteria, lot size, setback and parking requirements established in the Planned Area Development
approved by the City Council in the Zoning Application; Arizona Revised Statutes, Federal laws,
the City's General Plan; the Apache Junction City Code, Land Development Code, Zoning
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Ordinance,Site Plan,Subdivision Regulations,as applicable,Engineering Policies and
Guidelines, Building Codes; stand-alone ordinances and resolutions and all other requirements
and policies and practices which apply to the development.
SECTION 4.ANNEXATION AND ZONING
A.Annexation
4.A.1.Developer shall deliver to City a Petition for Annexation of the Property duly
executed by all necessary property owners and others holding any interest in the
Property (the "Annexation Petition").Upon receipt of the Annexation Petition,
and other petitions from affected property owners, City shall comply with the
provisions of A.R.S.§§9-471 et seq.,and,if annexation of the Property is
thereupon determined to be in the best interest of City, City shall adopt the final
ordinance annexing the Property into the corporate limits of City (the
"Annexation Ordinance").It is anticipated this Agreement,the Annexation
Ordinance and the Rezoning, will all be considered by the Mayor and City
Council on the same date.
4.A.2.The effective date of the Annexation Ordinance shall be referred to in this
Agreement as the "Annexation Date." Developer shall take all actions and execute
all documents reasonably necessary to cause or facilitate the completion of the
annexation process.Developer agrees, understands and acknowledges without
limiting any other remedy or relief for a subsequent breach of any of the
conditions of this Agreement, that once the Property has been annexed into the
corporate limits of the City, there presently does not exist any statutory remedy
for such breach by the City that would result in the Property being automatically
de -annexed from the City and returned to the status of being located in
unincorporated Pinal County territory.
B.Zoning
Contemporaneously with the Annexation Ordinance and pursuant to A.R.S. § 9-471 (L), City
staff shall recommend to the City Council, a City zoning classification for the Property of
General Rural ("GR"), which is the equivalent to the Property's current Pinal County zoning
classification.In addition, immediately after the Annexation Ordinance is considered by the
Mayor and City Council,staff will recommend to the Mayor and City Council a zoning
designation for the Property as Trailer Homesite by Planned Development ("TH-PD").The
enactment of any zoning ordinance with respect to the Property shall be in the sole discretion of
the City Council.
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C.Conditions Precedent
4.C.1.The annexation of the Property into the City, and the adoption of a TH-PD Zoning
classification with conditions of approval mutually acceptable to City and Developer for the
Property are conditions precedent to the commencement and effective date of this Agreement.In
the event of a failure of the conditions precedent to be met, Developer upon seven (7) calendar
days' written notice to the City, shall elect either to terminate this Agreement or to waive such
conditions precedent and thereupon to undertake the Developer's obligations as described in
Section 5.
4.C.2.Reconsideration Provision: The City agrees to place the annexation ordinance on
the next City Council meeting for reconsideration upon Owner's timely written request for
reconsideration if: (a) any person or entity timely files any protest, appeal, referendum, litigation
or other petition (including, but not limited to, any petition filed pursuant to A.R.S. Section 9-
471 (C)) challenging the validity or approval of the Annexation Ordinance; (b) the City does not,
at or before the same City meeting in which the Annexation Ordinance is adopted approve the
zoning; (c) any person or entity timely files any protest petition challenging the validity or
approval of the Zoning; or (d) any person or entity timely files any protest, appeal, referendum,
litigation or other petition challenging the validity or approval of this Agreement.If Owner
exercises its rights under this Section 4, the request will be submitted to the City in sufficient
time to allow for requisite notice periods under the City's Codes and Ordinances.
4.C.3.Automatic Termination of Agreement.The City and Developer hereby
acknowledge and agree that this Agreement shall automatically terminate and be of no force or
effect if the City's annexation of the Property does not, for any reason become effective and final
pursuant to A.R.S. § 9-471(D) on or before May 10, 2010.
SECTION 5.DEVELOPER'S OBLIGATIONS
Developer's obligations under this Agreement and Section 5 shall only be required if the
Developer elects in its sole and absolute discretion to proceed with the development.At that
point and only at that point, the Developer shall be obligated to complete the Public Roadway
Improvements and Drainage Improvements as set forth and described in Exhibit C.If Developer
proceeds, Developer agrees to do all of the following:
a.Sign an annexation petition as referenced in Section 4 as presented by the City and
take any other reasonable action if necessary at no cost or expense to City to
accomplish annexation of the Property into the corporate limits of City.
b.At its sole cost and expense, build and complete the Public Roadway Improvements
and Drainage Improvements as set forth and described in Exhibit C to the City
Engineer's satisfaction within the time frames established for each phase.City
acknowledges that Developer will be reimbursed $160,000 for Drainage
Improvements and shall receive a Development Fee credit for Right of Way
dedication value and Public Roadways Improvements in accordance with ARS § 9-
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463.05(B)(3).City further acknowledges that Developer shall only be responsible for
twenty-five percent (25%) of the traffic signalization costs at Southern and Meridian.
c.Complete construction on a clubhouse which is detailed on the case file renderings
which has been submitted to the Development Services Department,Planning
Division, no later than thirty (30) months after obtaining all governmental approvals.
SECTION 6.CITY'S OBLIGATIONS
City agrees to do all of the following:
a.So long as Developer is not in default of this Agreement, upon completion and
approval of the Drainage Improvements detailed in Exhibit C, pay Developer an
amount of no more than One Hundred Sixty Thousand Dollars ($160,000.00).
Payment shall be made by City within sixty (60) calendar days after receipt by City of
written demand from Developer for reimbursement, including copies of receipted
invoices (showing payment in full)and lien releases for all work.Developer
understands and agrees that City shall not reimburse Developer for interest relating to
the Public Roadway Improvement or Drainage Improvement costs or any other sum
arising from or relating to the fact that the reimbursements to Developer may be paid
over time.This shall be the entire payment from the City to Developer with respect
to the Drainage Improvements, notwithstanding any greater cost or expense incurred
by Developer.
b.Reimburse Developer all offsets that are allowable (as determined by the
Development Fee Administrator) under Apache Junction City Code,Vol. II, Land
Development Code,Chapter 7 Development Fees for roadway improvements to
Meridian Drive and Southern Avenue, and any associated traffic signalization as
required in Exhibit C.City shall provide Development Fee credits toward the
payment of the development fee for the required dedication of public right-of-way for
which the development fee is assessed provided by Developer in accordance with
A.R.S. § 9-463.05(B)(3).
c.Completion of construction of the Drainage Improvements by Developer as described
in Exhibit C are conditions precedent to the City providing the reimbursements to
developer provided in subsections (a) and (b) above.
SECTION 7.CONSTRUCTION
The Public Roadway Improvements shall consist of construction of all adjacent half streets
(Southern Avenue and Meridian Drive), curbs,gutters,sidewalks,streetlights, underground
utility work, and City -required traffic signals described in Exhibit C to this Agreement.
SECTION 8.DESIGN, BIDDING, CONSTRUCTION AND DEDICATION
The Public Roadway Improvements shall be designed,bid,constructed and dedicated in
accordance with Applicable Laws, including without limitation all Applicable Laws concerning
City procurement and public bidding procedures such as, but not limited to A.R.S. Title 34 as
determined to be applicable by the City Engineer.
SECTION 9.CITY REVIEW AND APPROVAL OF PLANS
Developer recognizes that its development and construction of the Public Roadway
Improvements and Drainage Improvements pursuant to this Agreement are subject to City's
normal plan submittal,review and approval processes and fees,and day-to-day inspection
services.
SECTION 10.DEDICATION, ACCEPTANCE AND MAINTENANCE OF PUBLIC
IMPROVEMENTS
When the Public Roadway Improvements as determined by City are considered to be completed,
upon written request of City or Developer, Developer shall dedicate and City shall accept such
Public Roadway Improvements in accordance with the Applicable Laws set forth above and
upon such reasonable and customary conditions as City may impose,including without
limitation a two (2) year workmanship and materials contractor's warranty.Upon acceptance by
City, the Public Roadway Improvements shall become public facilities and property of City, and
City (subject to the warranty described above) shall be solely responsible for all subsequent
maintenance, replacement or repairs.With respect to any claims arising prior to acceptance of
the Public Roadway Improvements by City, Developer shall bear all risk of, and shall indemnify,
defend, pay and hold harmless City and its officials, employees and City Council members, for,
from and against any claim arising from any injury (personal, economic or other) or property
damage to any person, entity or utility, arising from the condition, loss, damage to or failure of
any of the Public Roadway Improvements.Developer shall not dedicate, and City shall not
accept ownership of, the Drainage Improvements described in Exhibit C, and Developer shall
maintain the Drainage Improvements in perpetuity consistent with conventional drainage
maintenance standards.The foregoing covenant of Developer to maintain the Drainage
Improvements shall survive the expiration or earlier termination of this Agreement.
SECTION 11.TIMING FOR PAYMENT OF CITY FEES
Developer shall pay all impact, development, and administrative fees currently in effect or as
may be adopted in the future (referred to individually as a "City Fee" or collectively as "City
Fees") as and when such City Fees are assessed, due or otherwise required to be paid by
Developer, except that payment of Permitting Fees and Development Fees assessed for each unit
pursuant to Apache Junction City Code,Volume II,Land Development Code,Chapter 7,
Development Fees,may be paid on a unit by unit basis.
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SECTION 12.CITY REPRESENTATIONS
City represents and warrants to Developer that:
a.City's execution and approval of this Agreement has been made in compliance with
the procedural requirements of the Apache Junction City Code and Arizona Revised
Statutes.
b.City will execute and acknowledge when appropriate all documents and instruments
and take all actions necessary to implement and evidence this Agreement.
c.As of the date of this Agreement, City knows of no litigation, proceeding, initiative,
referendum, or investigation contesting the powers of City or its officials with respect
to this Agreement that has not otherwise been disclosed in writing to Developer.
d.The execution, delivery and performance of this Agreement by City is not prohibited
by, and does not conflict with, any other agreements, instruments or judgments or
decrees to which City is a party or is otherwise subject.
e.City has been assisted by counsel of its own choosing in connection with the
preparation and execution of this Agreement.
SECTION 13.DEVELOPER REPRESENTATIONS
Developer represents and warrants to City that:
a.Developer has the full right, power and authorization to enter into and perform this
Agreement and the obligations and undertakings of Developer under this Agreement,
and the execution, delivery and performance of this Agreement by Developer has
been duly authorized and agreed to in compliance with the organizational documents
of Developer.
b.All consents and approvals necessary to the execution, delivery and performance of
this Agreement have been obtained, and no further action needs to be taken in
connection with such execution, delivery and performance.
c.Developer will execute and acknowledge when appropriate all documents and
instruments and take all actions necessary to implement, evidence and enforce this
Agreement.
d.As of the date of this Agreement, Developer knows of no litigation, proceeding or
investigation pending or threatened against or affecting Developer, which could have
a material adverse affect on Developer's performance under this Agreement that has
not otherwise been disclosed in writing to City.
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e.This Agreement (and each undertaking of Developer contained herein) constitutes a
valid, binding and enforceable obligation of Developer, enforceable according to its
terms, except to the extent limited by bankruptcy, insolvency and other laws of
general application affecting creditors' rights and by equitable principles, whether
considered at law or in equity.Developer will defend the validity and enforceability
of this Agreement in the event of any proceeding or litigation arising from its terms
that names Developer as a party or which challenges the authority of Developer or
City to enter into or perform any of its obligations hereunder and will cooperate with
City in connection with any other action by a Third Party in which City is a party and
the benefits of this Agreement to City are challenged, and Developer shall indemnify,
defend, pay and hold City harmless for, from and against all costs, expenses and
attorneys'fees incurred by City in connection with any such action to defend
enforceability of this Agreement.City and Developer agree to work together to:1)
evaluate the obligation to proceed in defense of this Agreement, or 2) to mutually
terminate this Agreement; and 3) provide for reimbursement by Developer to City for
any challenged payments made under this Agreement for Drainage Improvements.In
no event shall Developer be obligated to spend more than $160,000 in defense costs.
f.The execution, delivery and performance of this Agreement by Developer is not
prohibited by,and does not conflict with,any other agreements,instruments,
judgments or decrees to which Developer is a party or to which Developer is
otherwise subject.
g.Developer has not paid or given, and will not pay or give, any third party any money
or other consideration for obtaining this Agreement other than normal costs of
conducting business and costs of professional services such as the services of
architects, engineers and attorneys.
h.Developer has been assisted by counsel of its own choosing in connection with the
preparation and execution of this Agreement.
SECTION 14.COOPERATION
City and Developer each shall designate and appoint a representative to act as a liaison between
City and its various departments and Developer.City or Developer may change their
representatives at any time,but each Party agrees to have a current active representative
appointed for such purposes.The initial representative for City ("City Representative") shall be
City Manager George Hoffman (or his successor or designee if notice is provided to Developer);
and the initial representative for Developer ("Developer Representative")shall be Project
Manager Todd Lutz (or his successor or designee if notice is provided to Developer).The
representatives shall be available at all reasonable times to discuss and review the performance
of the parties to this Agreement and the development of the Property pursuant to this Agreement,
but the representatives do not have the power or authority to alter or amend any term, condition
or provision of this Agreement.
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SECTION 15.DEFAULT
Failure or unreasonable delay by any Party to perform or otherwise act in accordance with any
term or provision of this Agreement for a period of thirty (30) calendar days or such other
reasonable amount of time necessary to cure the default, provided the cure has commenced and
is being prosecuted diligently, continuously and in good faith, and after written notice thereof
from the other Party (the "Cure Period"), shall constitute a default under this Agreement.Said
notices shall specify the nature of the alleged default and the manner in which said default may
be satisfactorily cured, if possible.In the event such default is not cured within the Cure Period,
the non -defaulting party shall have the remedies set forth below. Said notice shall specify the
nature of any alleged default and the manner in which said default may be satisfactorily cured, if
possible.In the event such Default is not cured within the Cure Period, the non -defaulting party
shall have the remedies set forth as follows:
(1) City's exclusive remedies for a Default by Developer shall consist of, and shall be limited
to the following:
(A)For a breach by Developer of this Agreement, City's exclusive remedy
shall be to terminate City's obligations arising under Sections 6(a)of this Agreement by written
notice thereof to Developer.
(B)At any time, City may seek special action or other similar relief (whether
characterized as mandamus, injunction or otherwise), requiring Developer to undertake and to
fully and timely address a public safety concern or to enjoin any construction or activity
undertaken by Developer that is not in accordance with the terms of the Agreement.
(C)Nothing in this Agreement shall be deemed to limit City's administrative
remedies or City's remedies against Developer with respect to a breach by Developer of its
obligations of indemnity.
(2)Developer's exclusive remedies for a Default by City shall consist of, and shall be
limited to the following:
(A)Developer's exclusive remedy for a monetary Default by City shall
consist of and shall be limited to recovery of damages for unpaid amounts due in accordance
with the provisions of this Agreement.Such damages shall be deemed to consist of Developer's
actual damages as of the time of entry of judgment (meaning the right to receive payments in
accordance with the terms of this Agreement). Developer expressly waives any right to seek
consequential, special, punitive, multiple, exemplary or any other damages with respect to a
monetary Default.
(B)Nothing in this Agreement shall be deemed to limit the Developer's
remedies, as may be provided by law or in equity, for non -monetary Defaults by City.
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SECTION 16.ENFORCED DELAYS (FORCE MAJEURE)
Neither City nor Developer, as the case may be, shall be considered not to have performed its
obligations under this Agreement in the event of enforced delay (an "Enforced Delay") due to
causes beyond its control and without its fault or negligence or failure to comply with Applicable
Laws,including,but not restricted to,acts of God,fires,floods,epidemics,pandemics,
quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of
subcontractors or materialmen due to such causes, acts of a public enemy, war, terrorism or act
of terror (including but not limited to bio-terrorism or eco-terrorism),nuclear radiation,
blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence
or any exercise of the power of eminent domain of any governmental body on behalf of any
public entity, or a declaration of moratorium or similar hiatus directly affecting the Property
(whether permanent or temporary) by any public entity.In no event will Enforced Delay include
any delay resulting from unavailability for any reason of particular tenants or purchasers of
portions of the Property,labor shortages, or the unavailability for any reason of particular
contractors, subcontractors, vendors or investors desired by Developer in connection with the
Property.Developer agrees that Developer alone will bear all risks of delay which are not
Enforced Delay.In the event of the occurrence 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, however, that the Party seeking the benefit of the provisions of
this Section shall, within thirty (30) calendar days after such Party knows or should know of any
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 and continue notification every sixty
(60) calendar days until cured.
SECTION 17.ATTORNEY FEES AND COSTS; INDEMNITY
In the event of commencement of a legal action in an appropriate forum by a Party to enforce
any covenant or any of such Party's rights or remedies under this Agreement, including any
action for declaratory or equitable relief, the prevailing Party in any such action shall be entitled
to recovery of its reasonable attorneys' fees and court costs and expenses, including, but not
limited to, its costs of expert witnesses, transportation, lodging and meal costs of the Parties and
witnesses,costs of transcript preparation and other reasonable and necessary direct and
incidental expenses associated with such dispute.
SECTION 18.SETTLEMENT OF ALL CLAIMS
The Parties agree that they (and their successors and assigns) will not initiate or cause to be
initiated against each other or any of their current, past, or future agents, servants, employees,
elected officials,appointed representatives,attorneys,fiduciaries,subsidiaries,affiliates,
divisions, successors, assigns, or any person or entity acting or claiming by, through, under or in
concert in both their personal and corporate capacities (collectively "Representatives"), any
claim, lawsuit, action, appeal, investigation, or proceeding of any kind pertaining or in any way
related to any past or present drainage/stormwater/fugitive (or other) water associated with flow
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or drainage from or onto the Property or loss, damage or injury to persons or property therefrom
(collectively the "Water Claims").
Further, the Parties, their heirs, executors, administrators, and assigns, hereby release and forever
discharge each other and their respective Representatives referred to above from any and all
claims, demands, damages, causes of action, and any liability whatsoever, known or unknown,
suspected or unsuspected, relating to the Water Claims.
The Parties warrant that they do not have (and hereby expressly release and disclaim) any claim,
charge, or complaint, either formal or informal, pending against each other, their Representatives
referred to above,with any court,tribunal,administrative agency,governmental agency,
insurance or bonding agent relating to any past or present drainage/stormwater/fugitive water
associated with the Water Claims.
The Parties agree that this Agreement may be pleaded as a complete bar to any action or suit
before any court or administrative body, with respect to any claim under federal, state or other
law, provided that the Party offering this Agreement as a bar to such action or suit is not in
default of its obligations arising under this Agreement.
SECTION 19.MISCELLANEOUS PROVISIONS
A.City Access to Property.Developer agrees to permit access to the Property by the
City,its officials,personnel and designees,at reasonable times,subject to
reasonable safety requirements as Developer may impose from time to time, to
assure compliance with all Applicable Laws, the Planned Development and the
terms of this Agreement.
B.Public Access.Developer will grant to City,as may be necessary,recorded
emergency vehicle access and use easements over and through any private
roadways as may exist from time to time within the Property.
C.Restriction on Transfers.During the first three (3) years after execution of this
Agreement, Developer may transfer its interest to another entity to perform the
construction of the Project as long as Michael and/or Ernie Thesman are listed as
Principal and Managing partners of said entity.However, during the same period,
Developer may not transfer its interest to another entity if Michael and/or Ernie
Thesman are not Principal or Managing partners without prior written consent of
City, which consent may not be unreasonably withheld.
During the first three (3) years of this Agreement is in effect, Developer shall
provide written notice ("Transfer Notice") to City with respect to any sale or
assignment of any interest in Developer which results in Michael or Ernie
Thesman not becoming a Principal or Managing Member of the entity.Such
Transfer Notice shall be tendered to City at least sixty (60) calendar days before
such Transfer takes place
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The transfer prohibition shall not apply if Michael or Ernie Thesman provides
documentation satisfactory to City in its reasonable discretion of a permanent and
substantial medical illness or disease, disability or death of either Michael or Ernie
Thesman.
D.Development Agreement Approval.Both Parties agree and understand this
Agreement is subject to approval by at least a majority of the Council.
E.Severability.City and Developer each believes that the execution, delivery and
performance of this Agreement are in compliance with all Applicable Laws.
However, in the unlikely event that any provision of this Agreement is declared
void or unenforceable (or is construed as requiring City to do any act in violation
of any Applicable Laws)such provision shall be deemed severed from this
Agreement and this Agreement shall otherwise remain in full force and effect;
provided that,if the City Attorney determines that such action is legally
permissible, this Agreement shall retroactively be deemed reformed to the extent
reasonably possible in such a manner so that the reformed agreement (and any
related agreements effective as of the same date) provide essentially the same
rights and benefits (economic and otherwise) to the Parties as if such severance
and reformation were not required; provided, however, in no event shall such
reformation require any general fund expenditure or incurrence of indebtedness
by City.The Parties further agree, in such circumstances, to do all acts and to
execute all amendments, instruments and consents necessary to accomplish and to
give effect to the purposes of this Agreement, as reformed.
F.Rights and Remedies are Cumulative.Subject to the provisions and limitations of
Section 15, the rights and remedies of the Parties are cumulative, and the exercise
by either Party of any one or more of such rights shall not preclude the exercise
by it, at the same or different times, of any other right or remedy for any other
non-performance by the other Party.
G.Notices and Filings.Except as otherwise required by law, any notice required or
permitted under this Agreement shall be in writing and shall be given by personal
delivery, or by deposit in the United States mail, certified or registered, return
receipt requested, postage prepaid, addressed to the Parties at their respective
addresses set forth below, or at such other address as a Party may designate in
writing pursuant to the terms of this Section, or by telecopy or telefacsimile
machine, or by any nationally recognized express or overnight delivery service
(e.g.Federal Express or UPS),with all postage and other delivery charges
prepaid:
If to City:City of Apache Junction
Attn:City Manager, George Hoffman
300 E. Superstition Blvd.
13
And to:
If to Developer:
And to:
Apache Junction, Arizona 85119-2899
Telephone: (480) 474-5066
Facsimile: (480) 474-5110
City of Apache Junction
Attn:City Attorney, Joel Stem
300 E. Superstition Blvd.
Apache Junction, Arizona 85119-2899
Telephone: (480) 474-2604
Facsimile: (480) 982-5883
Michael Thesman
10100 Santa Monica Blvd., Suite 2400
Los Angeles, CA 90067
Telephone: (310) 551-0841
Facsimile: (310) 551-0413
Sean Lake
Pew & Lake, P.C.
1744 South Val Vista Drive
Suite 217
Mesa, Arizona 85204
Facsimile: (480) 461-4676
H.Effective Date and Notices.All such notices, demands or other communications
will (i) if delivered personally or delivered through a same day delivery/courier
service be deemed effective upon delivery or refusal to accept delivery by the
addressee; (ii) if delivered by U.S. Mail in the manner described above be deemed
effective upon the earlier of receipt or three (3) business days after deposit in a
United States post office or with a United States postal officer; and (iii) if sent by
a recognized national overnight delivery service be deemed effective one (1)
business day after deposit with such service.Any payment by the City may be
made in the same manner or manners provided in this Section for the provisions
of Notices and shall be deemed made at the time provided in this Section for
notices, demands and other communications.
Waiver.The Parties agree that neither the failure nor the delay of any Party to
exercise any right, remedy, power or privilege under this Agreement shall operate
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 other 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 be effective unless it is in
writing and is signed by the Party asserted to have granted such waiver.
14
J.Counterparts.This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together 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 signatures of all Parties may be physically attached
to a single document.
K.Headings.The descriptive headings of the Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
L.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.
M.Construction.The terms and provisions of this Agreement represent the results of
negotiations between the Parties,each of which has been,or has had the
opportunity to be, represented by counsel of its own choosing, and none of which
has acted under any duress or compulsion, whether legal, economic or otherwise.
Consequently, the terms and provisions of this Agreement shall be interpreted and
construed in accordance with their usual and customary meanings.The Parties
each hereby waive the application of any rule of law which would otherwise be
applicable in connection with the interpretation and construction of this
Agreement that ambiguous or conflicting terms or provisions contained in this
Agreement (or any other provision of this Agreement) shall be interpreted or
construed against the Party who prepared or attorney who prepared the executed
Agreement or any earlier draft of the same.
N.Integration/Entire Agreement.Except as expressly provided herein,this
Agreement constitutes the entire agreement between the Parties with respect to
the subject matters hereof and supersedes any prior agreement, understanding,
negotiation or representation regarding the subject matters covered by this
Agreement.
0.Further Assurances.Each Party agrees to perform such other and further acts
and to execute and deliver such additional agreements, documents, affidavits,
certifications,acknowledgements and instruments as any other Party may
reasonably require to consummate, evidence, confirm or carry out the matters
contemplated by this Agreement or to confirm the status of (a) this Agreement as
in full force and effect, and (b) the performance of the obligations hereunder at
any time during this Term.
P.Business Days.If the last day of any time period stated in this Agreement or the
date on which any obligation to be performed under this Agreement shall fall on a
15
Saturday, Sunday or legal holiday, then the duration of such time period or the
date of performance, as applicable, shall be extended so that it shall end on the
next succeeding day which is not a Saturday, Sunday or legal holiday.
Consents and Approvals.Wherever this Agreement requires or permits the
consent or approval of a Party to any act, document, use or other matter, such
consent or approval shall be given or denied by such Party in its reasonable
discretion, unless this Agreement expressly provides otherwise.
R.Covenants Running With Land; Inurement.The covenants, conditions, terms and
provisions of this Agreement shall run with the Property and shall be binding
upon, and shall inure to the benefit of the Parties and their respective permitted
successors and assigns with respect to such Property.Wherever the term "Party"
or the name of any particular Party is used in this Agreement such term shall
include any such Party's permitted successors and assigns.
S.Recordation.Within ten (10)calendar days after this Agreement has been
approved by City and executed by the Parties, City shall cause this Agreement to
be recorded in the Official Records of Pinal County, Arizona.
T.Amendment.No change or addition is to be made to this Agreement except by
written amendment executed by City and Developer.Within ten (10) calendar
days after any amendment to this Agreement, such amendment shall be recorded
in the Official Records of Pinal County, Arizona.Upon amendment of this
Agreement as established herein,references to "Agreement"shall mean the
Agreement as amended.
U.Good Faith of Parties.Except where any matter is expressly stated to be in the
sole discretion of a Party, in performance of this Agreement or in considering any
requested extension of time, the Parties agree that each will act in good faith.
V.Time of Essence.Time is of the essence in implementing the terms of this
Agreement.
W.No Partnership: Third Parties.Nothing contained in this Agreement shall, create,
or be deemed to create, any partnership, joint venture or other similar arrangement
between City and Developer. 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 to cause of action hereunder; except that the indemnity provisions
of this Agreement shall extend to all agents, attorneys, Council members and
employees of City acting in the course and scope of their employment or
engagement.
16
X.Governing Law; Choice of Forum.This Agreement shall be deemed to be made
under,shall be construed in accordance with,and shall be governed by the
internal, substantive laws of the State of Arizona (without reference to conflict of
law principles). Any action brought to interpret, enforce or construe any provision
of this Agreement shall be commenced and maintained in the Superior Court of
the State of Arizona in and for the County of Pinal (or, as may be appropriate, in
the Justice Courts of Pinal County, Arizona, or in the United States District Court
for the District of Arizona, if, but only if, the Superior Court lacks or declines
jurisdiction over such action). The Parties irrevocably consent to jurisdiction and
venue in such courts for such purposes and agree not to seek transfer or removal
of any action commenced in accordance with the terms of this Section.
Y.Survival of Indemnifications.All indemnifications contained in this Agreement
shall survive the execution and delivery of this Agreement, the closing of any
transaction contemplated herein, and the rescission, cancellation, expiration or
termination of this Agreement upon the terms and for the period set forth in each
respective Section.
Z.Status Statements.Any Party (the "Requesting Party") may, at any time, and
from time to time, deliver written notice to any other Party requesting such other
Party (the "Providing Party") to provide in writing that, to the knowledge of the
Providing Party, (a) this Agreement is in full force and effect and a binding
obligation of the Parties, (b) this Agreement has not been amended or modified,
and if so amended, identifying the amendments, (c) the Requesting Party is not in
default in the performance of its obligations under this Agreement, or if in default,
to describe therein the nature and amount of any such defaults, and (d) any other
matter reasonably requested (a "Status Statement"). A Party receiving a request
hereunder shall execute and return such Status Statement within fifteen (15)
business days following the receipt thereof. City Manager or any Assistant City
Manager shall have the right to execute any Status Statement requested by
Developer hereunder. City acknowledges that a Status Statement hereunder may
be relied upon by transferees and mortgagees; provided, however, City shall have
no liability for monetary damages to Developer, any transferee or mortgagee, or
any other person in connection with, resulting from or based upon the good faith
provision of any Status Statement by City.
AA.Nonliability of City Officials, Etc., and of Employees, Members and Partners,
Etc.of Developer.No City Council member,official, representative, agent,
attorney or employee of City shall be personally liable to Developer, or to any
successor in interest to Developer in the event of any Non -Performance or breach
by City or for any amount which may become due to any of the other Parties or
their successors, or with respect to any obligation of City under the terms of this
Agreement.Notwithstanding anything contained in this Agreement to the
contrary, except in the case of an intentional misrepresentation, the liability of
Developer under this Agreement shall be limited solely to the assets of Developer
17
and shall not extend to or be enforceable against: (i) the individual assets of any
of the individuals or entities who are shareholders,members,managers,
constituent partners, officers or directors of the general partners or members of
Developer; (ii) the shareholders, members or managers or constituent partners of
Developer; or (iii) officers of Developer.
BB.Proposition 207 Waiver.Developer agrees, understands and acknowledges that
City is entering into this Agreement in good faith and at the specific request of
Developer, and further with the understanding that, if City acts consistently with
the terms and conditions herein, it will not be subject to a claim for diminished
value of the Property from Developer.Developer,on behalf of it and its
successors and assigns,intends to encumber the Property with the following
agreements and waivers.Developer agrees and consents to all the conditions
imposed by this Agreement, the Zoning, the General Plan, Applicable Laws, and
all permits and approvals issued or granted by City in furtherance thereof, and by
signing this Agreement waives any and all claims, suits, damages, compensation
and causes of action Developer may have now or in the future under the
provisions of A.R.S. §§ 12-1134 through and including 12-1136 (but specifically
excluding any provisions included therein relating to eminent domain)and
resulting from the development of the Property consistent with this Agreement,
the Zoning, the General Plan, Applicable Laws, and all permits and approvals
issued or granted by City in furtherance thereof or from any "land use law" (as
such term is defined in the aforementioned statute sections) permitted by this
Agreement to be enacted, adopted or applied by City now or hereafter.Developer
acknowledges and agrees to the terms and conditions set forth in this Agreement,
the Zoning, the General Plan, Applicable Laws, and all permits and approvals
issued or granted by City in furtherance thereof cause the fair market value of the
Property to equal or exceed the fair market value of the Property in the absence of
this Agreement, the Zoning the General Plan, Applicable Laws, and all permits
and approvals issued or granted by City in furtherance thereof, and such "land use
laws."
CC.Conflict of Interest Statute.,Compliance with Financing Requirements.This
Agreement is subject to, and may be terminated by City in accordance with, the
provisions of A.R.S. § 38-511. This Agreement is subject to all applicable federal,
state and local laws relating to the City's budget, annual appropriations, etc.
Further, any obligations of the City under this Agreement are subordinate to any
existing or future indebtedness or pledge of taxes made by City in connection
with any bond indenture, municipal property corporation transaction, lease or
other type of financing.
DD.Risk of Loss.Developer assumes the risk of any and all loss, damage or claims to
any portion of the Public Roadway Improvements unless and until title to the
Public Roadway Improvements is transferred to City.With respect to any claims
arising after acceptance of the Public Roadway Improvements, and subject to the
18
warranties described below, City shall bear all risk of and against any claim
arising from any injury (personal or economic or other) or property damage to any
person,entity or utility,arising from the operation,effects,condition,loss,
damage to or failure of any of the Public Roadway Improvement.Assuming
Developer's channel carries at least 761 cfs, Developer shall not assume any risk
or liability associated with the design of the roadway or injury that results from
any backwater condition or overflow onto Southern Avenue beyond the
Developer's channel design capacity of 761 cfs or the exiting water condition at
the intersection of Southern and Meridian.At the time title to the Public
Roadway Improvements is transferred to City by dedication deed,plat
recordation, or otherwise, Developer will, to the extent allowed by law, assign to
City all unexpired warranties relating to the design,construction and/or
composition of such Public Roadway Improvements.Further, acceptance of the
Public Roadway Improvements shall be conditioned on City's receipt of a two (2)
year warranty of workmanship, materials and equipment, in form and content
reasonably acceptable to City;provided,however,that such warranty or
warranties may be provided by Developer's contractor or contractors directly to
City and are not required from Developer, and that any such warranties shall
extend from the date of completion of any Public Roadway Improvement, any
component thereof, or the work of any specific trade or contractor, as applicable.
EE.Insurance.During the period of any construction involving the Public
Infrastructure Improvements,and with respect to any construction activities
relating to the Public Roadway Improvements, Developer will obtain and provide
City with proof of payment of premiums and certificates of insurance showing
that Developer is carrying, or causing its contractor(s) to carry builder's risk
insurance, comprehensive general liability and worker's compensation insurance
policies in amounts and coverages set forth on Exhibit "D."Such policies of
insurance shall be placed with financially sound and reputable insurers, require
the insurer to give at least thirty (30) calendar days' advance written notice of
cancellation to City, and will name City as an additional insured on all such
policies.
FF.Assistance in Third Party Approvals.Upon written request, City shall reasonably
(and at no cost to City)assist Developer in the coordination of third party
approvals for all drainage issues affecting Federal, State and County agencies, but
City shall not be responsible for complying with other agencies'orders,
noncompliance declarations or required redesigns.
GG.Privilege Taxes for Space Rentals.Developer shall collect rental privilege tax
for each rented space and shall submit such taxes to the City pursuant to the City
Tax Code Section 8A-445.
HH.Privilege Taxes for Site Preparation, Set Ups, and Building Sales.Developer
shall maintain a sales office in the City and shall treat all Developer sales as point
19
of sale in the City and consequently shall pay all applicable privilege taxes
associated with the site preparation, moving to the site, set up, and building sale
to City pursuant to City Tax Code Section 8A-427.
Business and Privilege Tax License.Developer represents and warrants that any
license necessary to perform the work under this Agreement is current and valid
or will be obtained or be brought current.Developer understands that the activity
described herein constitutes "doing business in the City of Apache Junction" and
Developer agrees to obtain a privilege license pursuant to City Tax Code Section
8A-300 and keep such license current during the term of this Agreement.
Developer agrees to require any subcontractor hired to perform any task or work
within the corporate limits of the City to acquire a privilege license pursuant to
City Tax Code Section 8A-300, liability insurance and worker's compensation
insurance.
JJ.New Home and Features.The first sale and initial placement of all homes shall
be new, not previously lived in units and not resale units.Developer will offer
homes with attached garages as an option.Home exteriors may be vinyl sided
with asphalt or architectural shingled roofs.
20
CITY:
ATTEST:CITY OF APACHE JUNCTION, an Arizona
municipal corporation
By:
Kathy Connelly
City Clerk By:
John Insalaco
APPROVED TO AS FORM:Mayor
By:
R. Joel Stern, Esq.
STATE OF ARIZONA )
) ss
County of
The foregoing instrument was acknowledged before me this day
of , 2009, by ,of the City of
Apache Junction, Arizona, an Arizona municipal corporation, on behalf of the City.
My Commission Expires:
21
Notary Public
DEVELOPER:
ATTEST:FORTUNE TRAVEL, INC.,
an Oregon corporation
By:
Its:
By:
Its:
STATE OF OREGON
) ss
County of
The foregoing instrument was acknowledged before me this day
of , 2009, by , the Fortune
Travel, Inc., on behalf of such company.
My Commission Expires:
22
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
The Northwest Quarter of Section 31, Township 1 North, Range 8 East, Gila and Salt River Base
and Meridian, Pinal County, Arizona;
EXCEPT that portion of the South half of the Northwest Quarter which lies South of the
following described line;
BEGINNING at a point on the West line of said Section 31, which point bears North 0 degrees
05 minutes 05 seconds East 850.00 feet from the West quarter corner of said Section 31;
THENCE North 89 degrees 54 minutes 55 seconds East 55.00 feet;
THENCE South 5 degrees 37 minutes 47 seconds East 251.08 feet;
THENCE North 89 degrees 57 minutes 52 seconds East 2557.97 feet to the Point of Ending on
the East line of said South half of the Northwest Quarter of Section 31; and
EXCEPTING THEREFROM all coal, oil, gas and other mineral deposits as reserved in the
Patent recorded in Book 50 of Deeds, page 27.
23
SUPERSTITION FREEWAY
SOUTHERN AVENUE
-A0010....9<nams
typical setbacks
COVO0'1nuelor lel
— —I
6011.6.1. rn61.63
—
414.6..41
W 5 1 ,601160 11.01 /3wowoh4.2101
releNg tniirley.
PROJECT DATA
PROPOSED USE 11136313.0006140.5*9
010105E0 20130.11 1104/10
TOTAL grass slut .600 105 actes
TOTAL rv.1323.30.3 10120011
tOeactonesrastaa awe 2005150
009(252 0101 MIX & (DUNI
I 11.07 TYPE I COUNT I
0 '3
se.kea
113
215
613 81 326
imams 630
Lots evicted Onpion are conepolva c0IY
1.116..11 mute 6106.6,161.61130 06.
Rmr661100 Conte,
•51161053 ams
•dubbed.20020 • 21400.3
06426.
•5150010.0 110
•AV park109 521111041.03610
•ball flea 30 ,
1 0mo,"•%mor •
0 100
111,31.0 IIESIDDRIAL alevetope•
MAW/ &men /landscape .611362.
11130/160.21/1111•3.66/18..6.26••rs
km,41.2009
las Falmas del id
CONCEPTUAL SITE PLAN
ENTRY MONUMENT- Theme and Planter Walls
elevation at 1/4 stale
MAIN ENTRY at Southern Avenue
plan view a5 40 stale
Entry Monument Signals°
Planter Wall
Therne Wall
Theme Wall
Wash
TISELitati ita.410ENTIAL Owner /Developer
505111454 planers lhndsstpa +=hems
RITOCH-POWILI.Asseelatn engineers
las Falmas del Sol
WALLS & ENTRY MONUMENT
exhibit A
2:0
§
co
•en,=1.)
aca„)
4411/5
4!!!!)
[1
11
f•I
EXHIBIT B-3
PHASE PLAN
26
ME
R
I
D
I
A
N
R
O
A
D
-rpa.1
RV PARK - Interm Use Component IOW
f,I t
rmiwi11111=11111ctd,
FELLI-1-1- 4 1434-u
1 41,-/ILI ALL/ 151.212
ar;113.1'I 4s !I 1.4
ria.—Sid. SS. 1 ATI TIFF
s*30
'*Ittø IN
.lif01113
6 Toil SPAI '
hum
KEY RV PARK DATA
i j RV Park Office Building Total Spaces - 121
9 Ramada Typical Space Dimension - 33' x 51'
Fire Pit with Gathering Area Typical Street Width - 32'
4)Specialty Street Paving Approximate Site Area - 10 acres
9 Sitting Area
a.)Walkway
Bark Park
9 Theme Wall
TINSMAN RESIDENTIAL Owner / Oeve{oper
PIMA land p4annels / landscape arcNtects
RITOC144.0WELLi &sedates ensdneen
May12.2009
[as Falmas del Sol
RVPARK
h b D
EXHIBIT C
PUBLIC ROADWAY AND DRAINAGE IMPROVEMENTS
1.SOUTHERN AVENUE IMPROVEMENTS
All half street and such other related improvements, including but not limited to all road, curb,
gutter, sidewalk, streetlight, water, sewer, and other public utilities, as determined by the City
Engineer, for Southern Avenue, all of which borders Developer's Property, and twenty-five
percent (25%) of the traffic signalization at the intersection shall be completed with the first
phase of development.
2.MERIDIAN DRIVE IMPROVEMENTS
All half street and such other related improvements, including but not limited to all road, curb,
gutter, sidewalk, streetlight, water, sewer, and other public utilities, as determined by the City
Engineer, for Meridian Drive, all of which borders Developer's Property shall be completed
prior to the City issuing the 325th set permit for a manufactured home within the Property.
3.DRAINAGE IMPROVEMENTS
A storm water channel to be located on Developer's Property that is designed to carry a
minimum of 761 cubic feet per second flow from the north side of Southern Avenue onto
Developer's Property, which shall meet the City Engineer's specifications shall be completed
with the first phase of development but in no event later than thirty (30) months after all
governmental approvals have been obtained and the Developer has elected to proceed with the
Development.The 100 -year flow rate for the Property that shall be used during the design and
construction of Drainage Improvements and on -site improvements coming from the North shall
be 3,383 cubic feet per second ("cfs").
28
SOUTHERN RD.OFFSITE STREET IMPROVEMENTS
RVW R/W
10 60'10'
6'.._' 2 4L
,
12'12'12'12'2 6'
S /W
_
Alm BIKE
LANE
--..a .•
,4'.
BIKE
LANE
VARIES S/W
\..
NAG STD. :DEL 230
MAG STD DET.220-A - 1 MINOR ARTERIAL CRPSS SECTION
MEANDERING
(TYR)
2.5'A-19 witE
3"A-19
12'(insto.H in
2 equal lif ts)
R/W R/W
I 100'
MEANDERING
BIKEI
LAN
l mAG STD.DEL 230'
I HAG STD.BET.220-A
_._12'
LANE
12'
LANE
27:
72'
12'
TWEI WAY
LEFT TURN
12'
LANE
12'
LANE
MAJOR ARTERIAL CROSS SECTION
4 2
BIKE
LANE
S /
C )ASPHALT CONCRETE
SURFACE COURSE ***
qD ASPHALT CONCRETE
BASE COURSE *ww
0 AGGREGATE BASE
COURSE PER MAG
SPEC 702.2
*AUXILIARY TURN
LANES:may BE
REQUIRED AT
INTERSECTIONS
WITH ADDITIONAL
FIGHT -OF -WAY
REQUIREMENTS.
SURFACE TREATMENT
SHALL BE GRADE
SS -1H FOG SEAL
IN ACCORDANCE WITH
MAG SEC.333 APPLIED
AT AT RATE OF
0.1 GAL/SQ.YD:OR AS
OTHERWISE DIRECTED
BY THE CITY ENGINEER.
moo*ASPHALT CONCRETE
SHALL CONFORM TO
THE EAST VALLEY
ASPHALT CRITERIA,
1996 EDITION AND
BE APPROVED BY
THE EVA COMMITEE.
36)1(
MEANDERING
25'A70 )!PIE
3 'A-19
12'(instaft in
2 equal lif is)
DETAIL NO.
AJ-20.3 ARTERIAL STREET CROSS SECTIONS
CITY OF APACHE JUNCTION
STANDARD DETAIL
REVISED OCTOBER 2006
emoj seassana
DC CD
8 2 ;,;-•
DC
g.o
.cn >,
..1•• 8
-o
r,
•
n 0
ro
I .
(4'2 co
i 0 0
DC
MERIDIAN RD.OFFSITE STREET IIVIPROVEMENTS
-4
41.5'1
I
43.5'14 93:5'
5.5 12'14'
57.5'
®65' Ian
Opsigmr Shall Wad Sidealalk brospt at She intersections
(typical Balb
fiartuPOSectlan lia:Dpiarminad by GeOlfthilpal/Pavattistris •
Evirear In Accordance wIth 1.1007 Payertent Design Gut&
lOnItnum 51ructurolNurnber (5111.t2.86
V.) Narita Rcaolvay Mil to bp flaterEinsd by Traffic Study.
0 1",95 C °L P 70'Typical
17011 "INCUR 6111111RUM
0 Thw A $togie Curb, ,yeg Dog a2.
14'15.51
Lt
57.5'
0 65' Yin
C) Type A Vertleagurb And Geer. Mao Detail 220.
NOTE: Cross actions may be flee at Herm:Noes to
provide duel let turn tunes aritl/nr right turn lams.
biarieopa .County -,DRt, of Trausportation
Standard Typical Soition ,.-.URBAN PRINCIPAL' ARTERIAl_ ROAD
110
5..
sn
EXHIBIT D
CITY OF APACHE JUNCTION INSURANCE REQUIREMENTS
A.Property.During the period of any construction involving the Public Improvements,
builder's risk insurance on an all-risk, replacement cost basis for the Public Improvements.
B.Liability.During the period of any construction involving the Public Improvements,
insurance covering the Developer and (as an additional insured)the City against liability
imposed by law or assumed in any written contract, and/or arising from personal injury, bodily
injury or property damage, with a limit of liability of $1,000,000.00 per occurrence with a
$1,000,000.00 products/completed operations limit and a $2,000,000.00 general aggregate limit.
Such policy must be primary and written to provide blanket contractual liability, broad form
property damage, premises liability and products and completed operations.
C.Contractor.During the period of any construction involving the Public Improvements,
each of the general or other contractors with which the Developer contracts for any such
construction shall be required to carry liability insurance of the type and providing the minimum
limits set forth below:
i)Worker's Compensation insurance and Employer's Liability with limits of $500,000.00
per accident, $500,000.00 per disease and $500,000.00 policy limit disease.
ii)Commercial general liability insurance on a $1,000,000.00 per occurrence basis
providing coverage for:
Products and Completed Operations
Blanket Contractual Liability
Personal Injury Liability
Broad Form Property Damage
X.C.U.
iii)Business automobile liability including all owned, non -owned and hired autos with a
limit of liability of not less than $1,000,000.00 combined single limit for personal injury,
including bodily injury or death, and property damage.
D.Architect.In connection with any construction involving the Public Improvements, the
Developer's architect shall be required to provide architect's or engineer's professional liability
insurance with a limit of $1,000,000.00 per claim.This policy, or other policies, shall cover
claims for a period of not less than three (3) years after the completion of construction involving
the Parcels and the Public Improvements.
E.Engineer.In connection with any construction involving the Public Improvements, the
Developer's soils engineer or environmental contractor shall be required to provide engineer's
professional liability insurance with a limit of $1,000,000.00 per claim.This policy, or other
policies, shall cover claims for a period of not less than three (3) years after the completion of the
construction involving the Property and the Public Improvements.
F.CPI Adjustments.The minimum coverage limits set forth above shall be adjusted every
five (5) years by rounding each limit up to the million dollar amount which is nearest the
percentage of change in the Consumer Price Index (the "CPI") determined in accordance with
this paragraph.In determining the percentage of change in the CPI for the adjustment of the
insurance limits for any year, the CPI for the month October in the preceding year, as shown in
the column for "All Items" in the table entitled "All Urban Consumers" under the "United States
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City Averages" as published by the Bureau of Labor Statistics of the United States Department
of Labor, shall be compared with the corresponding index number for the month of October one
(1) year earlier.
G.Primary Coverage.Developer's insurance coverage shall be primary insurance with
respect to the City, its officers, officials, agents, and employees.Any insurance or self-insurance
maintained by the City, its officers, officials, agents, and employees shall be in excess of the
coverage provided by Developer and shall not contribute to it.
H.Indemnities.Coverage provided by the Developer shall not be limited to the liability
assumed under the indemnification provisions of the Agreement.
I.Waiver of Subrogation.The policies shall contain a waiver of subrogation against the
City, its officers, officials, agents, and employees Property.
J.Notice of Cancellation:Each insurance policy shall include provisions to the effect that it
shall not be suspended, voided, cancelled, reduced in coverage of in limits except after thirty (30)
calendar days' prior written notice has been given to the City.Such notice shall be sent directly
to City Manager, 300 East Superstition Blvd., Apache Junction, AZ 85119, and shall be sent by
certified mail, return receipt requested.
K.Acceptability of Insurers:Insurance is to be placed with insurers duly licensed of
approved unlicensed companies in the State of Arizona and with an "A.M. Best" rating of not
less than A- VII.The City in no way warrants that the above -required minimum insurer rating is
sufficient to protect Developer from potential insurer insolvency.
L.Verification of Coverage:Developer shall furnish the City with original certificates of
insurance (ACCORD form or equivalent approved by the City)as required herein.The
certificates for each insurance policy are to be signed by a person authorized by that insurer to
bind coverage on its behalf.Any policy endorsements that restrict of limit coverage shall be
clearly noted on the certificate of insurance.
All certificates are to be received and approved by the City before the Commencement of
Construction.Each insurance policy must be in effect at or prior to the Commencement of
Construction and must remain in effect for the duration of the Agreement.Failure to maintain
the insurance policies as required by this Agreement or to provide timely evidence of renewal
will be considered a material breach of the Agreement.
All certificates required by this Agreement shall be sent directly to City of Apache Junction,
Attn: Public Works Department, City Engineer, 300 East Superstition Blvd., Apache Junction,
Arizona 85119.The City reserves the right to require complete, certified copies of all insurance
policies and endorsements required by this Insurance Exhibit at any time.
M.Approval:Any modification or variation from the insurance requirements in Insurance
Exhibit must have prior approval from the City Manager's Office whose decision shall be final.
Such action will not require formal contract amendment, but may be made by administrative
action.
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N.Miscellaneous.References to Developer herein shall mean Developer and/or its general
contractor(s).References herein to the Agreement shall mean the Development Agreement of
which this Exhibit is a part.Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Agreement.The City in no way warrants that the minimum limits
contained herein are sufficient to protect Developer from liabilities that might arise and
Developer may purchase such additional insurance as Developer determines necessary.
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