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HomeMy WebLinkAboutRES 10-02RESOLUTION NO. 10-02 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,AUTHORIZING THE CITY OF APACHE JUNCTION TO ENTER INTO AN INTERGOVERNMENTAL/ DEVELOPMENT AGREEMENT WITH PINAL COUNTY COMMUNITY COLLEGE DISTRICT. WHEREAS,the Pinal County Community College District,,dba Central Arizona College ("CAC"), currently owns approximately 58 acres of improved and unimproved real property; and WHEREAS, with voter approval of a $99 million bond package in 2008,CAC intends to expand its existing college campus in phases over the next 20 years; and WHEREAS,roadways surrounding the campus are in need of improvement and infrastructure enhancement,including Old West Highway, Idaho Road, and Winchester Road; and WHEREAS,the intersection of Old West Highway and Winchester Road has n o traffic signal,but is controlled by a northbound stop sign at Old West Highway and Winchester Road; and WHEREAS, northbound traffic must yield to the east and west bound Old West Highway traffic; and WHEREAS,the Council has determined that because 1)the public purpose of the agreement is to improve streets, neighborhood traffic,and the City's stormwater management system;and 2)the value of Broadway Avenue,which will be abandoned to CAC, is less than the value of the easement for a stormwater retention basin provided by CAC,the business arrangement does not amount to an illegal gift or subsidy; and WHEREAS, it is anticipated that development of the property pursuant to the agreement will result in aesthetic,planning, economic and other tangible and intangible public benefits to City including construction of public and private infrastructure and a sprawling and active community college that will enhance the economic vitality of the City's downtown corridor and Crossroads Redevelopment Area and the City's Inf ill District; and RESOLUTION NO. 10-02 PAGE 1 OF 3 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 ("General Plan"); and ,WHEREAS,the City is entitled to enter into the agreement pursuant to A-.R.S.§§9-500.05,9-500.11,and 11-952,and is authorized to abandon rights -of -way pursuant to Apache Junction City Code § 13-2-4 and A.R.S. §§ 9-276 and 28-7205; and WHEREAS, both the City and CAC have mutual interests in the development of this project and wish to 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 Intergovernmental/ Development Agreement Between the City of Apache Junction and Pinal County Community College District 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 16TH DAY OF MARCH 2010. SIGNED AND ATTESTED TO THIS 16TH DAY OF MARCH , 2010. S. INS LACO ATTEST: KATHLEEN CONNELLY City Clerk RESOLUTION NO. 10-02 PAGE 2 OF 3 APPROVED AS TO FORM: cnoir3.9 Oolo RICHARD J. STERN City Attorney RESOLUTION NO. 10-02 PAGE 3 OF 3 ATTACHMENT A When recorded return to: Richard Joel Stern, Esq. Apache Junction City Attorney 300 East Superstition Blvd. Apache Junction, AZ 85119 INTERGOVERNMENTAL/DEVELOPMENT AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND PINAL COUNTY COMMUNITY COLLEGE DISTRICT THIS INTERGOVERNMENTAL/DEVELOPMENT AGREEMENT (the "Agreement") is made as of the 16th day of Mar hi 2010,by and between CITY OF APACHE JUNCTION,ARIZONA, an Arizona municipal corporation ("City") and PINAL COUNTY COMMUNITY COLLEGE DISTRICT dba CENTRAL ARIZONA COLLEGE, a non-profit public education institution of the State of Arizona ("CAC").City and CAC are sometimes referred to herein collectively as the "Parties," or individually as a "Party." RECITALS A.CAC currently owns approximately 58 acres of improved and unimproved real property, (the "Property"), the legal description and map of which are attached hereto as Exhibit A and are incorporated herein by reference. B.With voter approval of a $99 million bond package in 2008, CAC anticipates expansion in phases over the next 30 years of its existing community college campus, located at 273 E. Old West Highway, Apache Junction, Arizona (the "Project"), most of which is also situated in the City's Crossroads Redevelopment Area, as reaffirmed in City Resolution No. 08- 07, incorporated herein by reference. C.CAC has submitted,or will submit,a completed Preliminary Development Review ("PDR") application for the Project (which includes, but is not limited to, grading and drainage, traffic, elevations, site plan, landscaping, and signage).The conceptual Site Plan for the Project is attached hereto as Exhibit B.The PDR application is submitted only as a courtesy to the City,and in accordance with A.R.S. § 9-462.01, such application shall not be subject to the City's formal approval process,except for the design and construction of the drainage/retention areas facilities within the public right-of-way, and all floodplain areas, which shall meet all City standards. D.City owns Broadway Avenue, which bisects a portion of the Project from Idaho Road east to Winchester Road.The City Engineer has determined this roadway is not a critical East-West route in the City's transportation Master Plan. E.Roadways surrounding the campus are in need of improvement and infrastructure enhancement, to include Old West Highway, Idaho Road, and Winchester Road. 4 F.The intersection of Old West Highway and Winchester Road has no traffic signal, but is controlled by a northbound stop sign at Old West Highway. The Winchester Road traffic must yield to the east and west bound Old West Highway traffic. G.The City Council has determined that because 1)the public purpose of this Agreement is to improve streets, neighborhood traffic, and the City's stormwater management system; and 2) the value of Broadway Avenue, which will be abandoned to CAC, is less than the value of the easement for a stormwater retention basin provided by CAC,the business arrangement does not amount to an illegal gift or subsidy. H.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 City including providing for the construction of the Public Infrastructure Improvements as more fully described in Exhibit D, and the Private Infrastructure Improvements as more fully described in Exhibit F, providing for planned and orderly development of the Property, and a sprawling and active community college that will enhance the economic vitality of the City's downtown corridor and Crossroads Redevelopment Area. I.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"). J.CAC is authorized to contract with cities and towns and to improve the campus buildings pursuant to A.R.S. § 1 5-1 441 et seq. K.The City of Apache Junction is.entitled to enter into this Intergovernmental/Development Agreement pursuant to A.R.S. §§ 9-500.05, 9-500.11, and I I- 952, and is authorized to abandon rights -of -way pursuant to Apache Junction City Code § 13-2-4 and A.R.S. §§ 9-276 and 28-7205. L.The parties have mutual interests in the development of this Project and wish to enter into this Agreement with certain terms and conditions. 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,more particularly identified in Exhibit B attached hereto. 5 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 January 1, 2030 or until all payment, performance and reimbursement obligations of the parties have been fully performed, which ever date is sooner.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: City agrees to do all of the following: a.Design and install traffic signal and related intersection improvements identified in Exhibit D at Old West Highway and Winchester Road on the timeline established in Exhibit E. b.Abandon a portion of Broadway Avenue as set forth in Exhibit C and convey it to CAC in fee simple on the timeline established in Exhibit E. c.Build all street improvements as detailed in Exhibit D and within the timelines set forth in Exhibit E.(Half street improvements on Winchester Road on the timeline established in Exhibit E.) 5.CAC'S OBLIGATIONS: CAC agrees to do all of the following: a.Furnish an accurate legal description and map and all other necessary documents (including, but not limited to recorded instruments confirming CAC owns the property adjacent to both sides of Broadway Avenue)for the entire width of the Broadway Avenue abandonment and new private access through -street from Idaho Road to Winchester Road on the timeline established in Exhibit E. b.Reimburse City for all costs associated with the design and installation of traffic signal and related intersection improvements at Old West Highway and Winchester Road within thirty (30) calendar days after being invoiced.All such costs shall be certified by the City Engineer as actual costs due and payable based on Engineer Estimates. c.Pay City CAC's proportionate share of the costs of the Winchester Road half •street improvements,which shall be a percentage of the total cost of such improvements calculated by determining the total frontage (in feet) provided to the Property by the Winchester Road improvements and dividing that number by total frontage (in feet) provided to all property by such improvements.Such reimbursement shall be provided by the CAC within thirty (30) calendar days after being invoiced. 6 d.Construct the ,half street improvements for any perimeter streets other than Winchester Road identified in Exhibit D to City standards and within the construction timelines contained in Exhibit E, or when determined to be necessary by a City approved Traffic Study, whichever is later. e.Construct to City Engineer's satisfaction the Private Infrastructure Improvements set forth in Exhibit F in accordance with the timeline set forth in Exhibit F, and forever maintain them thereafter through a perpetual easement and maintenance agreement.In addition,CAC shall submit to the Floodplain Administrator a FEMA Elevation Certificate for any habitable structure being built in any floodplain. 6.SCOPE AND REGULATION OF DEVELOPMENT: 6.1 Development Plans.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 AND PRIVATE INFRASTRUCTURE IMPROVEMENTS: 7.1 Construction and Phasing.The Public Infrastructure Improvements shall consist of all items identified in Exhibit D, along with associated curbs, gutters, sidewalks, streetlights, underground utility work, and any additional improvements, all more fully described in Exhibit D of this Agreement.The Private Infrastructure Improvements shall include all retention and detention areas, as more fully described in Exhibit F of this Agreement. 7.2 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. 7.3 Dedication, Acceptance and Maintenance of Public Infrastructure Improvements. When the Public Infrastructure Improvements are completed, upon written request of City, CAC shall dedicate, if no dedication currently exists, and City shall accept such Public Infrastructure Improvements in accordance with the Applicable Laws 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 Infrastructure Improvements shall become public facilities and property of City and City shall be solely responsible for all subsequent maintenance, replacement or repairs. 7.4 License.CAC represents and warrants that any license necessary to perform the work under this Agreement is current and valid.CAC 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 7 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 CAC agrees to ensure that its subconsultants will obtain any required business tax license. 8.INDEMNITY; RISK OF LOSS: 8.1 Indemnity by CAC.CAC 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 CAC,or its employees,contractors,subcontractors,agents or representatives in implementing the terms of this Agreement.The foregoing indemnity obligations of CAC shall survive the expiration or termination of this Agreement. 8.2 Indemnity by City.City shall pay, defend, indemnify and hold harmless CAC and its directors, 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 City, or its employees, contractors, subcontractors, agents or representatives in implementing the terms of this Agreement.The foregoing indemnity obligations of City shall survive the expiration or termination of this Agreement. 8.3 Risk of Loss.CAC assumes the risk of any and all loss, damage or claims to any portion of the Public Infrastructure Improvements unless and until title to the Public Infrastructure Improvements is transferred to City.At the time the Public Infrastructure Improvements is transferred to City by dedication deed, plat recordation, or otherwise, CAC will, to the extent allowed by law, assign to City all unexpired warranties relating to the design, construction and/or composition of such .Public Infrastructure Improvements.Further, acceptance of the Public Infrastructure 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 CAC's contractor or contractors directly to City and are not required from CAC, and that any such warranties shall extend from the date of completion of any Public Infrastructure Improvement,any component thereof,or the work of any . specific trade or contractor,as applicable. 8.4 Insurance.During the period of any construction involving the Public Infrastructure Improvements, and with respect to any construction activities relating to the Public Infrastructure Improvements,CAC will obtain and provide City with proof of payment of premiums and certificates of insurance showing that CAC 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 in Exhibit G.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 party on all such policies. 8 8.5 Environmental Waiver. 8.5.1 Definitions.The following terms used in this Agreement shall have the meanings set forth below (unless otherwise expressly provided herein): (a)"Environmental Laws" are included in the definition of Applicable Laws and shall mean any and all laws, statutes, regulations and judicial interpretations thereof of the United States, of any state in which the construction site is located, and of any other government or quasi -government authority, having jurisdiction, that relate to the prevention, abatement and elimination of pollution and/or protection of the environment, including but not limited to the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.,the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seg., the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.,the Clean Air Act ("CAA"), 42 U.S.C. § 7401 el seq.,the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f et seq., the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.,and the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2601 et seq.,together with any state statutes or local ordinances or other requirements serving any similar or related purposes. (b)"Hazardous Materials" shall mean those materials,substances,wastes, pollutants or contaminants which are deemed to be hazardous, toxic or radioactive and shall include but not be limited to those substances defined as "hazardous substances," "hazardous materials,""hazardous wastes,"or other similar designations in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601 et seq.,the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.,the Hazardous Materials Transportation Act 49 U.S.C. § 1801 et seg.,and any other federal, state or local governmental statutes, laws, codes, ordinances, rules,regulations and precautions,or by common law decision,including,without limitation,(i)trichloroethylene,tetrachloroethylene,perchloroethylene and other chlorinated solvents, (ii) petroleum products or byproducts, or petroleum, including crude oil or any fraction thereof,or natural gas, natural gas liquids,liquefied natural gas, synthetic gas or mixtures of synthetic gas and natural gas,(iii)asbestos and (iv) polychlorinated biphenyls. (c)"Storm Water Requirements"means all federal,state or local laws, regulations, ordinances, permits or other authorizations, approvals or other requirements • relating to storm water discharges or the control of erosion or sediment discharges from construction projects, including but not limited to the Clean Water Act, 33 U.S.C. § 1251 et seg.and the NPDES General Permit for Stormwater Discharges Associated with Construction Activities. 8.5.2 Environmental Indemnity.CAC shall indemnify,protect,defend and hold harmless City and its Mayor and City Council,appointees,officers,employees,agents, consultants,representatives,successors,transferees and assigns (collectively,the "City Indemnified Parties")from and against any and all damages arising from,relating to or associated with any actual or alleged (i) actions or omissions of CAC or its employees, agents, 9 representatives, or general contractor, subcontractors or sub -subcontractors, or any employees, agents,representatives or contractors of any of the foregoing,in connection with the performance of the work on the Public Infrastructure Improvements (the "Work"), including, without limitation, any injury, damage, harm or loss arising from, relating to or in any manner connected with the "release" or "threatened release" of Hazardous Materials, contaminants, oil or radioactive materials from or onto any City premises as a result of or connected with CAC's performance of the Work, even if not discovered or alleged until after the termination of this Agreement;and/or (ii)any breach,violation or default by CAC or its employees,agents, representatives, or general contractor, subcontractors or sub -subcontractors, or any employees, agents, representatives or contractors of any of the foregoing, of CAC's obligations under this Agreement, including, without limitation, any violation of any law, statute, ordinance, order, rule or regulation,including,without limitation,any Environmental Law or the Storm Water Requirements. 8.5.3 Environmental Compliance.During the design and construction of the Public Infrastructure Improvements, CAC shall comply with any and all applicable federal, state and local laws,rules,regulations,statutes,codes,orders and ordinances,including (i)all Environmental Laws and (ii)those applicable to the use,generation,storage,handling, discharge, disposal and transport of Hazardous Materials; provided that, notwithstanding the foregoing, CAC shall not cause any Hazardous Material to be used, generated, stored, handled or disposed of on or about any tract without the prior written consent of City, which consent may be withheld in the sole discretion of City.The foregoing provision shall not be construed as limiting the right of CAC to use, store, handle, discharge, dispose of and transport Hazardous Materials in the ordinary course of its business operations on the Property without the consent of City, provided that such operations are in accordance with all applicable laws.Without limiting the foregoing, all chemicals and other products utilized in the performance of the Work must be environmentally acceptable, as determined by the City in its sole discretion, and such use must be permitted by and be fully compliant with all Environmental Laws.CAC hereby covenants and agrees that the application of all chemicals and other products utilized in the performance of the Work must be performed by a licensed applicator if so required under any Environmental Law or any other law, statute, rule, regulation, code, order or ordinance.CAC acknowledges and agrees that it is informed and aware that strict compliance with the Storm Water Requirements is required of the CAC by the City as a material condition of this Agreement.CAC does hereby agree, covenant, warrant and represent that it will, at times during the performance of the Work, strictly comply with all Storm Water Requirements.CAC shall also include requirements for such compliance in all contracts relating to the performance and completion of the Work that is the subject of this Agreement.CAC shall be responsible for any and all federal, state and local taxes arising from or relating to the performance or completion of the Work, including, without limitation, all federal, state and local unemployment taxes and federal and state income and social security taxes to be withheld from wages.City is hereby authorized to file, on behalf of CAC,any and all reports, returns or other documents which are required of CAC by any governmental authority and which CAC shall have failed to file in accordance with the provisions of this Agreement.CAC further authorizes and empowers the City to pay on behalf of CAC any and all taxes, fees and assessments which CAC shall have failed to pay as required by the provisions of this Agreement, together with all required penalties and interest, and CAC 10 shall promptly reimburse City within ten (10) calendar days after receiving an invoice for such amounts. 9.CITY REPRESENTATIONS.City represents and warrants to CAC that: 9.1 The City's execution and 'approval of this Agreement have been made in compliance with the procedural requirements of the Apache Junction City Code. 9.2 The City will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement and evidence this Agreement. 9.3 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 CAC. 9.4 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. 9.5 The City has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 10.CAC REPRESENTATIONS.CAC represents and warrants to City that: 10.1 CAC has the full right, power and authorization to enter into and perform this Agreement and of the obligations and undertakings of CAC under this Agreement, and the execution, delivery and performance of this Agreement by CAC has been duly authorized and agreed to in compliance with the organizational documents of CAC. 10.2 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. 10.3 CAC 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. 10.4 To the best of CAC's knowledge,the Project is not contaminated with,nor threatened with contamination from outside sources by, 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. 11 10.5 CAC will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. 10.6 As of the date of this Agreement, CAC knows of no litigation, proceeding or investigation pending or threatened against or affecting CAC, which could have a material adverse affect on CAC's performance under this Agreement that has not been disclosed in writing to City. 10.7 This Agreement (and each undertaking of CAC contained herein) constitutes a valid, binding and enforceable obligation of CAC, 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.CAC will defend the validity and, enforceability of this Agreement in the event of any proceeding or litigation arising from its terms that names CAC as a party or which challenges the authority of CAC to enter into or perform any of its obligations hereunder.Delivery and performance of this Agreement by CAC is not prohibited by, and does not conflict with, any other agreements, instruments, judgments or decrees to which CAC is a party or to which CAC is otherwise subject. 10.8 CAC 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. 10.9 CAC 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: 11.1 Enforced Delays.Neither City nor CAC, 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 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 CAC in connection with the Property.CAC agrees that CAC 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 12 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. 11.2 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: 12.1 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. 12.2 Limited Severability.City and CAC 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. 12.3 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 13 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. 12.4 Notices: (a)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: With a copy to: If to CAC: With a copy to: City of Apache Junction Attn:City Manager 300 E. Superstition Blvd. Apache Junction, Arizona 85119-2899 Telephone: (480) 474-5066 Facsimile: (480) 474-5110 City of Apache Junction Attn:City Attorney 300 E. Superstition Blvd. Apache Junction, Arizona 85119-2899 Telephone: (480) 474-2604 Facsimile: (480) 982-5883 Central Arizona College Attn:Dennis A. Jenkins, President 8470 N. Overfield Road Coolidge, Arizona 85128-9779 Telephone: (520) 494-5111 Facsimile: (520) 494-5234 Michael Smalley, Esq. Rose Law Group 6613 N. Scottsdale Road, Suite 200 Scottsdale, Arizona 85250 Telephone: (480) 505-3935 Facsimile: (480) 505-3925 (b)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 14 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. 12.5 Time of Essence.Time is of the essence of this Agreement and each provision hereof. 12.6 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. 12.7 Attorneys' Fees and Costs. (a)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. 12.8 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. 12.9 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 CAC 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. 12.10 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 15 to this Agreement, such Exhibits being incorporated into and made an integral part of this Agreement for all purposes. 12.11 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. 12.12 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. 12.13 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. 12.14 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. 12.15 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. 12.16 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. 12.17 Amendment.No change or addition is to be made to this Agreement except by written amendment executed by City and CAC.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. 12.18 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, 16 arbitrarily or capriciously and will not unreasonably withhold, delay or condition any requested approval, acknowledgment or consent. 12.19 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. 12.20 Nonliability of City Officials, Etc., and of Employees of CAC.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 CAC under this Agreement shall be limited solely to the assets of CAC 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 CAC. 12.21 Proposition 207 Waiver.CAC agrees, understands and acknowledges that City is entering into this Agreement in good faith and at the specific request of CAC, 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 CAC.CAC, on behalf of it and its successors and assigns, intends to encumber the Property with the following agreements and waivers.CAC 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 CAC 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.CAC 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." 12.22 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. 17 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. PINAL COUNTY COMMUNITY COLLEGE DISTRICT,dba CENTRAL ARIZONA COLLEGE, a non- profit public education institution of the State of Arizona By: Dennis A. Jenkins Its: President CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By:John S. Insalaco Its:Mayor ATTEST: By: Kathy Connelly, City Clerk 18 STATE OF ARIZONA ) ) ss. County of •) The foregoing was acknowledged before me this day of 2010, by Dennis A. Jenkins, the Director the Board of Pinal County Community College District, dba Central Arizona College, a non-profit public education institution of the State of Arizona. Notary Public My Commission Expires: (seal) STATE OF ARIZONA ) ) ss: COUNTY OF The foregoing was acknowledged before me this day of 2010, by John S. Insalaco, 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 19 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. Michael Smalley, CAC 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 20 EXHIBIT A MAP AND LEGAL DESCRIPTION OF THE PROPERTY PARCEL NO. 1: THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 21; THENCE NORTH 89 DEGREES 49 MINUTES 48 SECONDS EAST, A DISTANCE. OF 660.47 FEET; THENCE NORTH 00 DEGREES 00 MINUTES 25 SECONDS EAST, A DISTANCE OF 659.31 FEET, TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00 DEGREES 00 MINUTES 25 SECONDS EAST, A DISTANCE OF 574.01 FEET; THENCE SOUTH 54 DEGREES 53 MINUTES 00 SECONDS EAST, A DISTANCE OF 612.43 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 25 SECONDS WEST, A DISTANCE OF 220.28 FEET;THENCE SOUTH 89 DEGREES 50 MINUTES 11 SECONDS WEST, A DISTANCE OF 501.00 FEET, BACK TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. PARCEL NO. 2: THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. PARCEL NO. 3: THE SOUTH HALF OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. PARCEL NO. 4: THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. AND EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF ARIZONA, BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION IN WARRANTY DEED RECORDED AS DOCKET 1764, PAGE 704. PARCEL NO. 5: THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER 1 OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPTING THEREFROM,'ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. AND EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF ARIZONA, BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION IN WARRANTY DEED RECORDED AS DOCKET 1764, PAGE 704. PARCEL NO. 6: THAT PORTION OF THE EAST HALF OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA, LYING SOUTH OF HIGHWAY 60-70-80 AND 89 RIGHT OF WAY. EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AND ALL URANIUM, THORIUM OR ANY OTHER MATERIAL WHICH IS OR MAY BE DETERMINED TO BE PECULIARLY ESSENTIAL TO THE PRODUCTION OF FISSIONABLE MATERIALS, WHETHER OR NOT OF COMMERCIAL VALUE, AS RESERVED IN THE PATENT TO THE LAND. PARCEL NO. 7: THE WEST HALF OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. AND EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF ARIZONA, BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION IN WARRANTY DEED RECORDED AS DOCKET 1764, PAGE 704. PARCEL NO. 8: THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 21; THENCE NORTH 89 DEGREES 49 MINUTES 48 SECONDS EAST, A DISTANCE OF 1161.48 FEET; THENCE NORTH 00 DEGREES 00 MINUTES 25 SECONDS EAST, A DISTANCE OF 659.26 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00 DEGREES 00 MINUTES 25 SECONDS EAST, A DISTANCE OF 220.28 FEET; THENCE SOUTH 54 DEGREES 53 MINUTES 00 SECONDS EAST, A DISTANCE OF 154.72 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 50 SECONDS WEST, A DISTANCE OF 130.91 FEET; THENCE SOUTH 89 DEGREES 50 MINUTES 11 SECONDS WEST, A DISTANCE OF 125.55 FEET BACK TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM, ANY PART LYING IN THE EAST 33 FEET OF THE SOUTH 2 HALF OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 21.AND EXCEPTING THEREFROM, ALL COAL, OIL, GAS AND OTHER MINERAL DEPOSITS AS RESERVED IN THE PATENT TO THE LAND. PARCEL NO.9: THE NORTH HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 28,TOWNSHIP I NORTH, RANGE 8 EAST,OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPT THE NORTH 40 FEET AND THE EAST 30 FEET AS DEDICATED IN INSTRUMENT RECORDED AS DOCKET 174,PAGE 227. PARCEL NO.10: THE SOUTH HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 28,TOWNSHIP 1 NORTH, RANGE 8 EAST,OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPT THE EAST 30 FEET AS DEDICATED IN INSTRUMENT RECORDED AS DOCKET 174,PAGE 227. PARCEL NO.11: THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 28,TOWNSHIP 1 NORTH, RANGE 8 EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. EXCEPT THE EAST 30 FEET AS DEDICATED IN INSTRUMENT RECORDED AS DOCKET 174,PAGE 227. PARCEL NO.12: THE EAST HALF OF THE NORTH HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER, EXCEPT THE NORTH 40 FEET THEREOF; AND THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER; AND THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER, ALL IN SECTION 28,TOWNSHIP 1 NORTH, RANGE 8 EAST,OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY, ARIZONA. 3 EXHIBIT B - PROPOSED SITE PLAN OF PROJECT [see attached page] 1 CV EXHIBIT C BROADWAY AVENUE ABANDONMENT [see attached pages] EXHIBIT D PUBLIC INFRASTRUCTURE IMPROVEMENTS The Public Infrastructure Improvements shall include: •Half streets and such other related improvements, including but not limited to all road,curb,gutter, sidewalk,drainage,streetlight,water,sewer,and other public utilities as may be specified by the City Engineer for Winchester Road, Old West Highway, all of which border CAC's Property, as shown on the attachment. •Underground existing electric power lines on Broadway Avenue no later than December 1, 2011 and on Old West Highway no later than December 1, 2025, as shown on the attachment. •Underground existing and future electric power lines on Old West Highway, Winchester Road and Broadway Avenue wherever such roads are adjacent to CAC properties,as shown on the .attachment,no later than January 1,2030. EXHIBIT E IMPROVEMENT CONSTRUCTION TIMELINE Half street and other related improvements, including but not limited to all road, curb, gutter, sidewalk, drainage, streetlight, water, sewer, and other public utilities as may be specified by the City Engineer for Old West Highway.Completion Date:January 1, 2016. Half street and such other related improvements, including but not limited to all road, curb, gutter, sidewalk, drainage, streetlight, water, sewer, and other public utilities as may be specified by the City Engineer for Winchester Road.Completion Date:June 1, 2011 Installation of Traffic Signal and other intersection related improvements at the intersection of Old West Highway and Winchester Road.Completion Date:January 1, 2011 Abandonment of Broadway Avenue and conveyance of property to CAC in Fee Simple. Completion Date:August 31, 2011 CAC to furnish an accurate legal description and map and all other necessary documents (including, but not limited to recorded instruments confirming CAC owns the property adjacent to both sides of Broadway Avenue) for the entire width of the Broadway Avenue abandonment and new private access through -street from Idaho Road to Winchester Road.Completion Date: January 1,2011 EXHIBIT F PRIVATE INFRASTRUCTURE IMPROVEMENTS The Private Infrastructure Improvements shall include: •Design/construction of a five -acre foot retention basin, as noted in the attachment, no later than December 20, 2011. •Design/construction of internal CAC owned/operated/maintained roadway, including loop road access from Idaho Road to Winchester Road, as shown on the attachment, no later than August 31, 2011. •Design/construction of a twelve -acre foot retention basin, as noted in the attachment, no later than December 31, 2025. EXHIBIT G 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 CAC 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 $5,000,000.00 per occurrence with a $5,000,000.00 products/completed operations limit and a $10,000,000.00 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 CAC 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 $1,000,000.00 per accident, $1,000,000.00 per disease and $1,000,000.00 policy limit disease. ii)Commercial general liability insurance on .a $5,000,000.00 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 CAC'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 CAC'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 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.CAC'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 CAC and shall not contribute to it. H.Indemnities.Coverage provided by the CAC 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 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 or approved unlicensed companies in the State of Arizona and with an "A.M. Best" eating of not less than A- VII.The City in no way warrants that the above -required minimum insurer rating is sufficient to protect CAC from potential insurer insolvency. L.Verification of Coverage:CAC 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 or 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:City Manager, 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 contra& amendment, but may be made by administrative action. N.Miscellaneous.References to CAC herein shall mean CAC 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 CAC from liabilities that might arise and CAC may purchase such additional insurance as CAC determines necessary.