HomeMy WebLinkAboutRES 10-24RESOLUTION NO. 10-24
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION,ARIZONA,AUTHORIZING THE CITY OF
APACHE JUNCTION TO ENTER INTO A DEVELOPMENT AGREEMENT
WITH SUPERSTITION MOUNTAIN MENTAL HEALTH CENTER.
WHEREAS,Superstition Mountain Mental Health Center,Inc.
("SMMHC"),currently owns approximately 7.26 acres of improved
and unimproved real property at the southeast corner of Plaza
Drive and Superstition Boulevard (the "Property"); and
WHEREAS,SMKEIC will construct a new 35,000 square foot,
three-story mental health facility on the southernmost 3.46
acres of the Property, which will include administrative offices
and will provide for client behavioral health and community
services; and
WHEREAS, it is anticipated that development of the Property
will result in planning,economic and other public benefits to
City including providing for public infrastructure improvements
and for planned and orderly development of the Property that
will enhance the economic vitality of the City's downtown core
and Crossroads Redevelopment Area; and
WHEREAS,roadways surrounding the Property are in need of
improvement and infrastructure enhancement,including Plaza
Drive; and
WHEREAS, the Council has determined that because the public
purpose of the Agreement is to improve streets and neighborhood
traffic, the business arrangement outlined in the Agreement does
not amount to an illegal gift or subsidy, nor does the Agreement
involve any reimbursement or waiver of retail transaction
sales/privilege tax; and
WHEREAS,the contemplated development and use of the
Property pursuant to the Agreement are consistent and in harmony
with the 1999 Apache Junction General Plan); and
WHEREAS,the City is entitled to enter into the agreement
pursuant to A.R.S. §§ 9-500.05 and 9-500.11; and
RESOLUTION NO. 10-24
PAGE 1 OF 2
WHEREAS, the City and SMMHC both have mutual interests in
the development of this project and wish t o enter into the
agreement with certain terms and conditions.
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 Development
Agreement Between the City of Apache Junction and
Superstition Mountain Mental Health Center,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 all Parties.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA,THIS 15TH DAY OF JUNE
2010.
SIGNED AND ATTESTED TO THIS 1,5TH DAY OF aUNE , 2010.
JOT S.INSALACO
Mayor
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM:
*0 G?2o1o
RICHARD J. STERN
City Attorney
RESOLUTION NO. 10-24
PAGE 2 OF 2
When recorded return to:
Richard Joel Stern, Esq.
Apache Junction City Attorney
300 East Superstition Blvd.
Apache Junction, AZ 851 19
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND
SUPERSTITION MOUNTAIN MENTAL HEALTH CENTER
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made as of the
day of 2010,by and between CITY OF APACHE JUNCTION,
ARIZONA,an Arizona municipal corporation ("City")and SUPERSTITION
MOUNTAIN MENTAL HEALTH CENTER, INC., an Arizona non-profit corporation,
("SMMHC").City and SMMHC are sometimes referred to herein collectively as
the "Parties," or individually as a "Party."
RECITALS
A. SMMHC owns approximately 7.26 acres of improved and unimproved
real property at the southeast corner of Plaza Drive and Superstition Boulevard
(the "Property"), Pinal County Assessor Parcel No. 101-11-002M, zoned City
Center District ("CCD") and situated in the City's Crossroads Redevelopment
Area, the legal description and map of which are attached hereto as Exhibit A
and are incorporated herein by reference.
B. SMMHC will construct in Phase I a new 35,000 square foot, three-story
mental health facility (the "Project") on the southernmost 3.46 acres of the
Property.The facility will include administrative offices and will provide for
client behavioral health and community services.
C. SMMHC has submitted a completed Preliminary Development Review
("PDR") application for the Project (which includes,but is not limited to,a
grading and drainage plan, traffic circulation and parking plan, elevations, site
plan and landscaping plan).City staff has reviewed and approved the PDR
application.The conceptual Site Plan for the Project is set forth in Exhibit B
incorporated herein by reference.
D. City owns Plaza Drive, which is adjacent to the west side of the Project
from Superstition Boulevard to the southern boundary of the Property.
E. It is anticipated that development of the Property will result in planning,
economic and other public benefits to City including providing for the Public
Infrastructure as more fully described in Exhibit C, and providing for planned
and orderly development of the Property that will enhance the economic vitality
of the City's downtown core and Crossroads Redevelopment Area.
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F.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").
G. The City of Apache Junction is entitled to enter into this Development
Agreement pursuant to A.R.S. §§ 9-500.05 and 9-500.11.
H. The parties have mutual interests in the development of this Project
and wish to enter into this Agreement with certain terms and conditions set forth
below. The Council finds that SMMHC is not receiving any illegal gift through the
implementation of the Agreement, and that this Agreement does not involve any
reimbursement or waiver of retail transaction sales/privilege tax.
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 agree
as follows:
1.ACCURACY OF THE RECITALS:The Parties hereby confirm the
accuracy of the Recitals set forth above, which are incorporated herein by this
reference.
2.PROJECT:This Agreement shall relate to the Project with an
approved Site Plan set forth in Exhibit B attached hereto.
3.EFFECTIVE DATE, TERM, AND RECORDING:Upon adoption of a
resolution by the City Council,execution and recording in the Pinal County
Recorder's Office, this Agreement shall become effective and shall continue
until all payment, performance and reimbursement obligations of the parties
have been fully performed.Pursuant to A.R.S. § 9-500.05(D), the Agreement
shall be recorded by City within ten (10) calendar days at the Pinal County
Recorder's Office.
4.CITY'S OBLIGATIONS:
a.Allow on -site construction work to be underway and/or
completed in advance of any off -site work.
b.Issue an "at -risk" grading permit prior to final plan approval
as deemed appropriate by the City Building Official.
c.Issue a Temporary Certificate of Occupancy and allow for the
opening of the administration building in Phase I prior to off -site work being
completed so long as there is adequate, safe street access which has been
approved by the Building Official, Public Works Department and Fire District.
d.Upon appropriate application and fee submittal from SMMHC,
allow a business monument sigr, on SMMHC's Property at or near Superstition
Boulevard and Plaza Drive.
e.Process reasonably prompt review of the new downtown
street cross-section design.
f.Consider Plaza Drive a local collector street.
g.Adjust the road development fees as allowable pursuant to
Resolution No.04-25 (creation of lnfill Incentive District) such that the total will
be reduced from $196,321 to $41,261.
h.Adjust parking requirements within administrative discretion
and/or allow on -street parking on Plaza Drive and allow spaces on west and east
sides of the street adjacent to Phase I to count toward the onsite parking
requirements of Phase I.
i.Complete the bidding and construction of the full Public
Improvements noted in Exhibit C.
j.Reserve the right to delay,adjust or modify the
implementation of the new street cross-section on Plaza Drive should funding
challenges or other issues arise.Should the Plaza Drive project be delayed, and
should SMMHC experience an onsite parking shortage due to anticipated Plaza
Drive spaces not being available, City shall allow the development of temporary
parking lot(s)onsite until such time as the Plaza Drive improvements are
completed.
k.Defer payment of development fees,building permit fees,
grading permit fee, plan review fees and Development Services engineering
fees, totaling $67,451.39, until January 2, 2013.
I.Reimburse SMMHC the cost incurred for design of the Public
Improvements adjacent to Phase II and the west side of Plaza Drive from
Superstition south to the southern boundary of the parcel.
5.SMMHC'S OBLIGATIONS:
a.Make a $5,000,000.00 Project investment in the Crossroads
Redevelopment Area.
b.Provide for approximately 40 net new jobs at the Project
location in Phase I.
c.Complete full roadway street design and all necessary bid
documents of the Public Improvements adjacent to Phase I and Phase II
identified in Exhibit C no later than January 2, 2011.
d.Should, for whatever reason, the Plaza Drive improvements
not be completed by August 1, 2011, SMMHC will contribute an amount not to
exceed $150,000.00 for half -street improvements adjacent to Phase I by January
2, 2012 in 2012 net present value, to a fund to be held by City and designated for
Plaza Drive improvements.Any amount paid into this fund, up to the maximum
amount noted above, shall be substantiated in the cost estimate approved by the
City Engineer.
e.Reimburse City the construction costs for new main street
cross-section for the half -street Plaza Drive Public Improvements adjacent to
Phase I, as depicted in Exhibit C, upon completion of construction, but no later
than January 2,2013.
f.Reimburse City the design and construction costs per new
main street cross-section for the half -street Plaza Drive Public Improvements
adjacent to Phase II, as depicted in Exhibit C, upon issuance of building permits
for Phase II or by January 2, 2025, whichever comes first.
g.Dedicate to City a perpetual sidewalk access easement to
accommodate the new downtown street cross-section.
h.Dedicate a 25 x 25 x 25 foot triangular perpetual easement, as
depicted in Exhibit D attached hereto, on its private property near the southeast
corner of Superstition Boulevard and Plaza Drive for future placement of a
monument sign , reading "Welcome to Downtown Apache Junction" or words to
that effect, by August 1, 2011.City shall design and construct the monument
sign at its own expense and shall also prepare all documents and legal
descriptions associated with the easement dedication.However, SMMHC may
review and provide input on such signage design and placement so that the
Project's site distance and visibility from the intersection is not compromised.
i.Provide a Traffic Impact Analysis ("TIA") as required by the
City's Engineer (but not required for Phase I) no later than issuance of a building
permit for Phase II (future phases).
2011.
j.Open and operate the Phase I SMMHC facility by April 1,
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k.Construct all offsite Public Improvements, excluding future
roadway improvements,but including overground and underground utility
apparatus and facilities and other improvements listed and reflected in the "Civil
Improvement Plans (Phase I)for Superstition Mountain Mental Health",
approved by the Development Services Department on or about April, 28, 2010,
on file with such department of City, incorporated herein by reference, and the
listed items in the attachment to Exhibit C. Such offsite improvements shall be
completed and approved before the Certificate of Occupancy is issued by City.
6.SCOPE AND REGULATION OF DEVELOPMENT:Development of the
Property shall be consistent with the Property's zoning and Site Plan and shall
be governed by the provisions, requirements and restrictions contained in this
Agreement and by all applicable city,state,and federal laws ("Applicable
Laws").
7.PUBLIC INFRASTRUCTURE IMPROVEMENTS:
a.Construction and Phasing.The Public Infrastructure
Improvements shall consist of all items identified in Exhibit C.
b.Design,Bidding,Construction and Dedication.The Public
Infrastructure Improvements shall be designed, bid, constructed and dedicated
in accordance with all Applicable Laws, including without limitation all laws
concerning City procurement and public bidding procedures.
c.License.SMMHC represents and warrants that any license
necessary to perform the work under this Agreement is current and valid.
SMMHC understands that the activity described herein constitutes "doing
business in the City of Apache Junction" and agrees to obtain a business tax
license pursuant to Article 8-5 of the Apache Junction City Code and keep such
license current during the term of this Agreement.Any activity by
subconsultants within the corporate city limits will invoke the same business tax
regulations on any subconsultants,and SMMHC agrees to ensure that its
subconsultants will obtain any required business tax license.
8.INDEMNITY; RISK OF LOSS:
Indemnity by SMMHC.SMMHC shall pay, defend, indemnify and
hold harmless City and its City Council members, officers and employees from
and against all claims, demands, fines, penalties, costs, expenses, damages,
losses, obligations, judgments,liabilities, and suits (including attorneys fees,
expert fees and court costs) which arise from or relate in any way to any act or
omission of SMMHC, or its employees, contractors, subcontractors, agents or
representatives in implementing the terms of this Agreement.The foregoing
indemnity obligations of SMMHC shall survive the expiration or termination of
this Agreement.
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9.CITY REPRESENTATIONS.City represents and warrants to SMMHC
that:
a.The City's execution and approval of this Agreement have
been made in compliance with the procedural requirements of the Apache
Junction City Code.
b.The 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,the City knows of no
litigation,proceeding,initiative,referendum,or investigation contesting the
powers of the City or its officials, with respect to this Agreement, that has not
been disclosed in writing to SMMHC.
d.The execution, delivery and performance of this Agreement
by the City is not prohibited by,and does not conflict with,any other
agreements, instruments or judgments or decrees to which the City is a party or
is otherwise subject.
e.The City has been assisted by counsel of its own choosing in
connection with the preparation and execution of this Agreement.
10.SMMHC REPRESENTATIONS.SMMHC represents and warrants to
City that:
a.SMMHC has the full right, power and authorization to enter
into and perform this Agreement and of the obligations and undertakings of
SMMHC under this Agreement, and the execution, delivery and performance of
this Agreement by SMMHC has been duly authorized and agreed to in
compliance with the organizational documents of SMMHC.
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.SMMHC has no knowledge of any violations of city, county,
state, federal, building, land use, fire, health, safety, environmental, hazardous
materials or other governmental or public agency codes,ordinances,
regulations, or orders with respect to the Property, or any lands adjacent to the
Property.
d.To the best of SMMHC's knowledge,the Project is not
contaminated with, nor threatened with contamination from outside sources by,
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any chemical, material or substance to which exposure is prohibited, limited or
regulated by any federal, state, county, local or regional authority or which is
known to pose a hazard to health and safety and the Project has never been
used for a landfill, dump site, underground improvements, storage of hazardous
or regulated substances, or by a manufacturer of any product or for any other
industrial use,nor is the Property subject to any wetlands or other
environmental limitation.
e.SMMHC will execute and acknowledge when appropriate all
documents and instruments and take all actions necessary to implement,
evidence and enforce this Agreement.
f.As of the date of this Agreement,SMMHC knows of no
litigation, proceeding or investigation pending or threatened against or affecting
SMMHC, which could have a material adverse affect on SMMHC's performance
under this Agreement that has not been disclosed in writing to City.
g.This Agreement (and each undertaking of SMMHC contained
herein)constitutes a valid,binding and enforceable obligation of SMMHC,
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.SMMHC will
defend the validity and enforceability of this Agreement in the event of any
proceeding or litigation arising from its terms that names SMMHC as a party or
•which challenges the authority of SMMHC to enter into or perform any of its
obligations hereunder.Delivery and performance of this Agreement by SMMHC
is not prohibited by,and does not conflict with,any other agreements,
instruments, judgments or decrees to which SMMHC is a party or to which
SMMHC is otherwise subject.
h.SMMHC 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.
i.SMMHC has been assisted by counsel of its own choosing in
connection with the preparation and execution of this Agreement.
11.EVENTS OF NON-PERFORMANCE; REMEDIES:
a.Enforced Delays.Neither City nor SMMHC, 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
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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 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
general economic or market conditions,unavailability for any reason of
particular tenants or purchasers of portions of the Property, labor shortages,
unavailability of financing,or the unavailability for any reason of particular
contractors, subcontractors, vendors, investors or lenders desired by SMMHC
in connection with the Property.SMMHC agrees that SMMHC 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 provided further that in no event shall a period of Enforced Delay
exceed ninety (90) days.
b.Rights and Remedies Cumulative.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.
12.MISCELLANEOUS PROVISIONS:
a.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 court action.
b.Limited Severability.City and SMMHC 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
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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.
c.Interpretation of Conditions and Terms.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, and 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 shall be interpreted or construed against the Party who prepared or
whose attorney prepared the executed Agreement or any earlier draft of the
same.
d.Notices:
(i)Addresses.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), delivery charges prepaid:
If to City:City of Apache Junction
Attn: City Manager
300 E. Superstition Blvd.
Apache Junction, Arizona 85119-2899
Telephone: (480) 474-5066
Facsimile: (480) 474-5110
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With a copy to:
If to SMMHC:
With a copy to:
City of Apache Junction
Attn: City Attorney
300 E. Superstition Blvd.
Apache Junction, Arizona 85119-2899
Telephone: (480) 474-2604
Facsimile: (480) 982-5883
Telephone:
Facsimile:
Telephone:
Facsimile:
(ii)Effective Date of Notices.Any notice sent by United States
Postal Service certified or registered mail shall be deemed to be effective
the earlier of the actual delivery, or three (3) business days after deposit
in a post office operated by the United States Postal Service.Any notice
sent by a recognized national overnight delivery service shall be deemed
effective one (1) business day after deposit with such service.Any notice
personally delivered or delivered through a same -day delivery/courier
service shall be deemed effective upon its receipt (or refusal to accept
receipt) by the addressee.Any notice sent by telecopy or telefacsimile
machine shall be deemed effective only upon confirmation of the
successful transmission by the sender's telecopy or telefacsimile
machine, followed by deposit of a "hard copy" for next business -day
delivery by a recognized national overnight delivery service.
e.Time of Essence.Time is of the essence of this Agreement
and each provision hereof.
f.Section Headings.The Section headings contained in this
Agreement are for convenience in reference only and are not intended to define
or limit the scope of any provision of this Agreement.
g.Attorney Fees and Costs.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
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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.
h.Waiver.Without limiting the provisions of this Agreement, 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.
i.Third Party Beneficiaries.No person or entity shall be a third
party beneficiary of this Agreement,except for permitted transferees,
assignees, or lenders under this assignment to the extent that they assume or
succeed to the rights and/or obligations of SMMHC under this Agreement, and
except that the indemnified parties referred to in the indemnification provisions
set forth in this Agreement (or elsewhere in this Agreement) shall be third party
beneficiaries of such indemnification provisions.
j.Exhibits.Without limiting the provisions of Section 1 of this
Agreement, the Parties agree that all references to this Agreement include all
Exhibits designated in and attached to this Agreement, such Exhibits being
incorporated into and made an integral part of this Agreement for all purposes.
k.Integration.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.
I.Further Assurances.Each Party agrees to perform such
other and further acts and to execute and deliver such additional agreements,
documents, affidavits, certifications, acknowledgments and instruments as any
other Party may reasonably require to consummate, evidence, confirm or carry
out the matters contemplated by this Agreement or 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 its Term.
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m.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 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.
n.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.
o.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.
p.Recordation.Within ten (10)calendar days after this
Agreement has been approved by City and executed by the Parties (together
with the execution of the Landowners' Consents hereto), City shall cause this
Agreement to be recorded in the Official Records of Pinal County, Arizona.
q.Amendment.No change or addition is to be made to this
Agreement except by written amendment executed by City and SMMHC.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.
r.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 and will .not act unreasonably, arbitrarily or capriciously
and will not unreasonably withhold, delay or condition any requested approval,
acknowledgment or consent.
s.Survival.All indemnifications contained herein 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 of any applicable statute of
limitations.
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t.Nonliability of City Officials.Etc..and of Employees of
SMMHC.No City Council member official, representative, agent, attorney or
employee of City shall be personally liable to any of the other Parties hereto, or
to any successor in interest to any of the other Parties, in the event of any Non-
Performance by City or for any amount which may become due to any other
Party or its successor, or with respect to any obligation of City under the terms
of this Agreement.Notwithstanding anything contained in this Agreement to the
contrary, the liability of SMMHC under this Agreement shall be limited solely to
the assets of SMMHC and shall not extend to or be enforceable against the
individual assets of any of the individuals or entities who are board members or
appointees of SMMHC.
u.Proposition 207 Waiver.SMMHC agrees, understands and
acknowledges that City is entering into this Agreement in good faith and at the
specific request of SMMHC, 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 SMMHC.SMMHC, on behalf of it and
its successors and assigns, intends to encumber the Property with the following
agreements and waivers.SMMHC agrees and consents to all the conditions
imposed by this Agreement, and by signing this Agreement waives any and all
claims, suits, damages, compensation and causes of action SMMHC 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 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.SMMHC
acknowledges and agrees to the terms and conditions set forth in this
Agreement, and acknowledges that such terms and conditions 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 and such "land use laws."
v.Conflict of Interest Statute.This Agreement is subject to, and
may be terminated by City in accordance with, the provisions of A.R.S. § 38-511.
[SIGNATURES APPEAR ON NEXT PAGE]
13
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first set forth above.
SMMHC, INC., an Arizona non-profit corporation
By: Robert R. Evans
Its: Chief Executive Officer
By: Judd Williams
Its: Board Chairperson
CITY OF APACHE JUNCTION, ARIZONA, an
Arizona municipal corporation
By: John S. Insalaco
Its:Mayor
ATTEST:
By:
Kathy Connelly, City Clerk
14
STATE OF ARIZONA
County of
)))
SS.
The foregoing was acknowledged before me this day of
, 2010, by Robert R. Evans, CEO of SMMHC, Inc., an Arizona
non-profit corporation,who acknowledged that he signed the foregoing
instrument on behalf of SMMHC, Inc.
My Commission Expires:
(seal)
STATE OF ARIZONA
County of
)
) ss.
)
Notary Public
The foregoing was acknowledged before me this day of
,2010, by Judd Williams, Chairperson of the Board of SMMHC,
Inc., an Arizona non-profit corporation, who acknowledged that he signed the
foregoing instrument on behalf of SMMHC, Inc.
My Commission Expires:
(seal)
Notary Public
15
STATE OF ARIZONA )
) ss.
County of
The foregoing was acknowledged before me this day of
,2010,by John S.lnsalaco,the Mayor of City of Apache
Junction, Arizona, an Arizona municipal corporation, who acknowledged that he
signed the foregoing instrument on behalf of City.
My Commission Expires:
(seal)
Notary Public
COUNSEL APPROVAL AS TO FORM:
I have read this Agreement and have determined such Agreement is in proper
form and is entered into within the powers of and authority granted under the
laws of the State of Arizona.
, SMMHC Attorney Date
I have read this Agreement and have determined such Agreement is in proper
form and is entered into within the powers of and authority granted under the
laws of the State of Arizona.
Richard J. Stern, City Attorney Date
16
EXHIBIT A
MAP AND LEGAL DESCRIPTION OF THE PROPERTY
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CARO ROAD
RECORD OF SURVEY
COMBINATION OF PARCELS
SUPERSTITION MOUNTAIN
MENTAL HEALTH CENTER
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RECORDING REQUESTED BY:SMMHC,Inc.
AND WHEN RECORDED MAIL TO:
SMMHC,Inc.
879 North Plaza Dr.
Building F
Apache Junction,AZ 85219
OFFICIAL RECORDS OF
FINAL COUNTY RECORDER
LAURA DEAN-LYTLE
DATE/TIME:
FEE:
PAGES:
FEE NUMBER:
04/29/2010 1222
$14.00
3
2010-040627
IIREIN
QUIT CLAIM DEED
For the consideration of TEN AND NO/100 DOLLARS, and other valuable considerations, I or we,
SMMHC,Inc . ,an Arizona non-profit corporation
hereby Quit -Claim to
SMMHC,Inc. ,an Arizona non-profit corporation
all right, title, or Interest in the following described real property situate in Pinal Arizona
•SEE EXHIBIT A
••
EXEMPT A.R.S. 11-1134
DATED:04/29/2010
Evans for SMMHC,'Inc
STATE OF fist' i Zor,c,
County of r.))ss.
Its: Chief Executive Officer
On c3s9;:ir Gi , before Me, the undersigned Notary Public, personally
appeared
known to.rne (or proved to me on the basis of satisfactory evidence) to be the person(s) whose namet4Vare
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capadty(ies) and that his/her/their signature(s) on the Instrument the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
My Commission Expires:
/c.-31•
—,;"
Mateo/ Publi
LINDA M. TOM
Notary Public -Arizona
Maricopa County
My Commission Expires
October 31, 2010
.111"eirger4PRIPerernlircir‘ORIP"N°415
2
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EXHIBIT A
A PARCEL OF LAND LOCATED IN THE NORTHEAST QUARTER OF SECTION 20,
TOWNSHIP 1 NORTH, RANGE 8 EAST OF THE GILA AND SALT RIVER MERIDIAN, PINAL .
COUNTY, ARIZONA, DESCRIBED AS FOLLOWS:
COMMENCING AT A COTTON PICKER SPINDLE MARKING THE NORTHEAST CORNER
OF SAID SECTION 20, FROM WHICH A 1/2 INCH REBAR WITH CAP RLS#34554 MARKING
THE NORTH QUARTER CORNER BEARS NORTH 89 DEGREES 51 MINUTES 27 SECONDS
WEST, 2640.53 FEET;
THENCE NORTH 89 DEGREES 51 MINUTES 27 SECONDS WEST, 988.62 FEET ALONG
THE NORTH LINE OF SAID SECTION 20;
THENCE DEPARTING SAID NORTH LINE,SOUTH 00 DEGREES 08 MINUTES 33
SECONDS WEST, 50.00 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF SUPERSTITION
BOULEVARD ACCORDING TO BOOK 11 OF MAPS, PAGE 24, PINAL COUNTY RECORDS
AND TO THE NORTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND AS
DESCRIBED IN DOCUMENT #2006-002243, PINAL COUNTY RECORDS AND TO A 5/8 INCH
REBAR WITH CAP RLS#34554 AND TO THE POINT OF BEGINNING;
THENCE SOUTH 00 DEGREES 00 MINUTES 02 SECONDS EAST, 313.25 FEET ALONG
THE WEST LINE OF SAID PARCEL TO THE SOUTHWEST CORNER OF SAID PARCEL AND
TO A 5/8 INCH REBAR WITH CAP RLS#34554;
THENCE SOUTH 89 DEGREES 51 MINUTES 27 SECONDS EAST, 313.45 FEET TO THE
SOUTHEAST CORNER OF SAID PARCEL AND TO A CHISELED X ON TILE ON TOP OF A
BLOCK WALL, SAID CORNER ALSO BEING A POINT ON THE WEST LINE OF THAT
CERTAIN PARCEL OF LAND AS DESCRIBED IN DOCUMENT #1987-005506,PINAL
COUNTY RECORDS;
THENCE SOUTH 00 DEGREES 00 MINUTES 48 SECONDS WEST, 365.71 FEET ALONG
SAID WEST LINE TO A 1/2 INCH REBAR WITH CAP RLS#19344;
THENCE SOUTH 89 DEGREES 59 MINUTES 48 SECONDS WEST, 624.89 FEET ALONG
THE SOUTHERN -MOST NORTH LINE OF SAID PARCEL TO THE EAST RIGHT -OF WAY
LINE OF PLAZA DRIVE ACCORDING TO BOOK 11 OF MAPS, PAGE 24, PINAL COUNTY
RECORDS AND TO A 1/2 INCH REBAR WITH CAP RLS#21773;
THENCE NORTH 00 DEGREES 00 MINUTES 12 SECONDS WEST, 126.65 FEET ALONG
SAID RIGHT-OF-WAY LINE AND TO A 1/2 INCH REBAR WITH CAP RLS#21773;
3
THENCE NORTH 11 DEGREES 37 MINUTES 23 SECONDS EAST, 100.02 FEET ALONG
SAID RIGHT-OF-WAY LINE AND TO A 1/2 INCH REBAR WITH CAP RLS#21773;
THENCE NORTH 00 DEGREES 00 MINUTES 12 SECONDS WEST, 430.82 FEET ALONG
SAID RIGHT-OF-WAY LINE AND TO A 1/2 INCH REBAR WITH CAP RLS#16202 AND TO
THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEAST WITH A RADIUS OF
25.00 FEET
THENCE NORTHEASTERLY 39.33 FEET ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 90 DEGREES 08 MINUTES 45 SECONDS AND TO THE SOUTH
RIGHT-OF-WAY LINE OF SAID SUPERSTITION BOULEVARD AND TO A 1/2 INCH REBAR
WITH CAP RLS#16202;
THENCE SOUTH 89 DEGREES 51 MINUTES 27 SECONDS EAST, 266.34 FEET ALONG
SAID RIGHT OF WAY LINE AND TO THE POINT OF BEGINNING.
4
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I I I _1 I I I I 1 1 1 1 1 1
1 1 1 1 1 1 1 1 1 1 1 1 1 1
-1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1-M 1
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 - - -1
.1--LI1J-I_LL_L-I_L_L-1-L-1.-/1
'EXHIBIT C
PUBLIC INFRASTRUCTURE IMPROVEMENTS
The Public Infrastructure Improvements -shall inckide:
•Half streets and such other related improvements,including but not
limited to all road, curb, gutter, sidewalk, drainage, streetlight, water,
sewer, underground utility apparatus, and other public utilities according
to the approved Civil Improvement Plans for SMMHC located adjacent to
Phase I and Phase II of the Project per the listed items in the Engineer's
Preliminary Opinion of Probable Construction Costs (attached hereto).
1
ATWELL
SANITARY:
Superstition Mountain Mental Health Center
Apache Junction, Arizona
ENGINEER'S PRELIMINARY OPINION OF
PROBABLE CONSTRUCTION COSTS
Apr. 28, 2010
DESCRIPTION OF ITEM QUANTITY UNIT UNIT PRICE TOTAL COST
8 -in PVC (SDR-35) public sewer line 483 L.F.•" :36.00 $17.388.00
5 -fl diameter sewer manhole with 30 -in
diameter cover with SMCFD logo;MAG ...,
..00420, 422, 423, & 424 3 EA.
.
$1,500 $4,500.00
Remove Sewer Manhole;Backfill &/
Recom pact 1 EA.5 750 00 $750.00
Plug pipe: MAG 427w! marker 427 2 EA.$- '$0,60 $100.00
Core drill Into existing sewer manhole...
Contractor to verify Inverts prior to .. ••..• .. •.
trenching and Installation,1 EA.$.. 1.500.00_$1,500.00
WATER:
DESCRIPTION OF ITEM -QUAN111 Y UNIT UNI i PRIek TO i AL COST
2.0 -In type 'K' copper water service 28 -
...
L.F.••$. 18.00 $504.00
2.0 -in type 'K'copper landscape water _
service 13 L.F.$ •18.00.$234.00
8" ductile iron pipe (DIP) pressure class
,
350 waterline 13 L.F.. •:36.00 $468.00,
8 -In X 6 -in tapping sleeve &valve;per ....
AWA STD DET E-9-3-1 2 EA.: 4,500.00 $9,000.00
8 -In X 8 -in tapping sleeve & valve;per .
AWA STD DET E-9-3-1
1 .
EA... 5,00000'$5,000.00
Fire hydrant complete; AWC STD DET E-
_
..,..
9-7-1 & E-9-6-1 2 -EA..5 2,500.00.$5,000.00
Connect to existing waterline per AWC .
STD DET E-9-11-1 3 EA.•:400:00.$1,200.00
PAVEMENT:
DESCRIPTION OF ITEM QUANTITY UNIT UNIT PRICE TOTAL COST-
Pavement; 5.0 -in AC on 8.0 -in ABC,per
DET 6 sheet 0101 288 S.Y.
. • :..
$• ••30,00:$8,640.00_
Sawcut existing pavement 326 L.F..5 ..'• 4:00,$1,304.00
Thickened edge of pavement per MAG
201, type 'B'154 L.F.•3.60.$539.00
REMOVAL AND REPAIR:
DESCRIPTION OF ITEM QUANTITY UNIT UNIT PRICE TOTAL COST
Remove existing pavement 516 S.Y.•.0,55'$283.80,,
Remove existing sewer line 114 L.F.• $,20.00 $2,280.00
CONSTRUCTION CONTINGENCY _
_10%L.S.T--%ego
'TOTAL COSTS $64,559.88
Atwell Pf0.10:1 No. 040011333
File: 11901103S3 OlTsiie cost L.:Almon:AIN Page 1
www.ntwell-group.com
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Based en finpmcement Plans for Superstition
Mountain Menial Health Center prepared
by Atwell dated 2010-04-13
EXHIBIT D
MONUMENT SIGN EASEMENT
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