HomeMy WebLinkAboutRES 01-04RESOLUTION NO.01-04
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,AUTHORIZING THE CITY OF APACHE JUNCTION TO ENTER
INTO AN ECONOMIC DEVELOPMENT AGREEMENT WITH WAL-MART STORES,INC.;
AUTHORIZING THE MAYOR AND STAFF TO TAKE ANY AND ALL STEPS NECESSARY
TO ACCOMPLISH THE EXECUTION OF THE AGREEMENT;AND DECLARING AN
EMERGENCY
WHEREAS,Wal-Mart Stores,Inc.(hereinafter "Wal-Mart") has an interest in
certain real property within the city limits;and
WHEREAS,the City of Apache Junction,(hereinafter "City")is desirous of
having Wal-Mart open a super center within its corporate limits;and
WHEREAS,the parties wish to enter into an Economic Development Agreement
pursuant to Arizona Revised Statutes Annotated 09-500.05 and 9-500.11 relating
to the development of such property;and
WHEREAS,because the community is somewhat remote and the City does not
have a substantial public infrastructure and public utility system,the City has
not fully benefitted from the substantial economic retail and industrial growth
which the Phoenix Metropolitan area has experienced the last few years;and
WHEREAS,the City has been experiencing an alarming slow down of economic
commercial development, which has resulted in a decrease in transaction privilege
tax revenues,among other things,and
WHEREAS,the City desires to obtain public benefits which will result from
the development of a 200,000 square foot -sized department store,supporting
grocery,fuel,and auto parts sales areas,among others,and with other such
benefits being realized,to include,but not limited to:1)creation and
retention of jobs;2)stimulation of further economic development within the
City;3)increase in property values along Apache Trail and other streets within
the area;4)convenient accessibility to major retail uses in the community;and
5)retention and generation of substantial new transaction privilege tax
revenues;and
RESOLUTION NO.01-04
PAGE 1 OF 3
WHEREAS,development of the property will require the approval and
construction of improvements,and expansion or enhancement of other public
infrastructure,including but not limited to,extension of a portion of a
regional drainage system and modernization of a portion of Apache Trail and
Delaware Drive.
NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
APACHE JUNCTION,ARIZONA,AS FOLLOWS:
Section 1.The City of Apache Junction hereby approves the Economic
Development Agreement with Wal-Mart,as set forth in the Attachment.
Section 2.The Mayor is hereby authorized to execute the attached Economic
Development Agreement upon favorable recommendation from the City Manager and
City Attorney and staff is authorized to take any and all steps deemed necessary
to accomplish the purpose and intent of the Agreement.
Section 3.The immediate operation of the provisions of this resolution
is necessary for the immediate preservation of the public peace,health or
safety,and that an emergency is hereby declared to exist since the development
will create new jobs,stimulate further economic development in the community,
increase property values along Apache Trail,and will generate substantial new
transaction privilege tax revenues which have recently been significantly
declining;and this resolution shall be in full force and effect from and after
its passage,adoption and approval by the Mayor and Council of the City of Apache
Junction.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,
ARIZONA,THIS 20TH DAY OF MARCH ,2001.
SIGNED AND ATTESTED TO THIS 20TH DAY OF MARCH
RESOLUTION NO.01-04
PAGE 2 OF 3
DOUGLAS C9LEMAN
Mayor
,2001.
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM:
•Va?I
RICHARD J.STERN
City Attorney
RESOLUTION NO.01-04
PAGE 3 OF 3
OFFICIAL RECORDS OF
PINAL COUNTY RECORDER
LAURA DEAN-LYTLE
When recorded return to:
Richard Joel Stern, Esq.
Apache Junction City Attorney
1001 North Idaho Road
Apache Junction, AZ 85219
DATE: 03/23/01 TIME: 1606
FEE :17.00
PAGES:23
FEE NO: 2001-012325
romie mmiumme lmoNle.
ECONOMIC DEVELOPMENT AGREEMENT BETWEEN CITY OF APACHE
JUNCTION AND WAL-MART STORES, INC.
This Development Agreement is entered into as of 1t4itfthd-0,2001, by
and between the CITY OF APACHE JUNCTION, an Arizona municipal corporation
(hereinafter the "City"), and WAL-MART STORES, INC., a Delaware corporation
(hereinafter "Wal-Mart").
WHEREAS,Wal-Mart has the contractual right to purchase
approximately 23.96 acres of real property located within the limits of the City
(hereinafter the "Property").The Property is depicted and more particularly
described in Exhibit A attached hereto; and
WHEREAS, Wal-Mart intends to develop the Property as a Wal-Mart
Store and will provide related improvements (hereinafter the "Wal-Mart Store")
to the property, as depicted in the site plan attached to this agreement as Exhibit
B (hereinafter the "Site Plan"); and
WHEREAS,Wal-Mart and the City wish to enter into this
development agreement to provide for the development of the Property and to
provide for the construction of improvements to Apache Trail, Delaware Drive,
regional and local storm water drainage systems and landscaping
improvements; and
WHEREAS, the proposed development of the property is consistent
with the approved zoning for the property,which is,pursuant to Apache
Junction City Code, Vol. II,Land Development Code, Ch. 1, Zoning Ordinance,
§16.0200,zoned General Business ("CB -2"), and is addition,ally in compliance
with the City's adopted and approved general plan.On /1/0e0,./ „Ft)
2001, the City Council adopted Resolution No.0/-0), which approved and
authorized the execution and delivery of this agreement; and
WHEREAS,Arizona Revised Statutes Annotated (hereinafter
"A.R.S.") § 9-500.05 authorizes the City to enter into a development agreement
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with a landowner or any other person having an interest in real property located
within the City to facilitate development of the property by providing for, among
other things,the conditions,terms,restrictions and requirements for Public
Infrastructure and the financing of Public Infrastructure; and
WHEREAS, in approving this Agreement, the City Council finds that
all activities relating to the development of the Wal-Mart property are economic
development activities within the meaning of Arizona Revised Statutes § 9-
500.11(C), that all expenditures by the City pursuant to the Agreement constitute
the appropriation and expenditure of public monies for and in connection with
economic development activities and that it is appropriate to provide Wal-Mart
with the benefits in this Agreement as an inducement to Wal-Mart to construct,
own and operate a major retail establishment in the City; and
WHEREAS, the City Council further finds that development of the
Wal-Mart property will substantially increase economic development activity in
the City by:1)significantly increasing sales tax revenue within the City;2)
creating jobs within the City; 3) encouraging the development of property in the
vicinity of the Wal-Mart Store for retail purposes; 4) redirecting the public's retail
expenditures to businesses located within the corporate limits; and 5) providing
for new goods and services which are currently unavailable.
NOW THEREFORE,in consideration of the terms and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1.Accuracy of the Recitals.The parties hereby acknowledge
the accuracy of the Recitals, which are incorporated herein by this reference.
2.Term.This Agreement shall commence on the date the last
party signs (the "Effective Date") and shall continue until the fifth anniversary of
the date that the Wal-Mart Store first opens for business to the public (the
"Termination Date"), subject to the provisions under §4(a) herein.
3.Restrictions on Development and Operation.The
development and operation of the Property and the Wal-Mart Store including,
without limitation, the type of use, the maximum height and size of buildings,
building setback requirements,parking requirements,landscaping
requirements,loading zone requirements and provisions for reservation or
dedication of land for public purposes,will be governed by the following,
(collectively the "Development Criteria") as they exist on the Effective Date:
(a)The City's General Plan;
(b)Regulations and requirements set forth in the Apache
Junction City Code, Land Development Code, Zoning Ordinance, Engineering
Guidelines, and in stand alone resolutions and archives
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(c)Reasonable restrictions that are necessary to protect
the health, safety and welfare of persons using the Property, and which protect
the health, safety and welfare of the surrounding residential neighborhood. Wal-
Mart shall, have the following specific rights with regard to the development and
operation of the Property and the Wal-Mart Store:
(i)Wal-Mart shall have the right to conduct "sidewalk
sales" and "parking lot sales" (which are undertaken by Wal-Mart and not third
parties) at such locations on the Property as Wal-Mart determines is appropriate
from time to time, in accordance with applicable laws.Wal-Mart shall also have
the right to locate and maintain modular storage facilities in the loading and
parking lot areas of the Property in accordance with applicable law.
(ii) Wal-Mart shall have the right to operate the Wal-Mart
Store in accordance with Wal-Mart's operational policies,as the same are
amended from time to time, in accordance with applicable laws.
(iii) The provision of a masonry wall, a minimum of six
(6) feet in height, shall not be required along the west property line adjacent to
the building, or south property line pursuant to the Apache Junction City Code,
Vol.II,Land Development Code,Chapter 6,Article 6-1,Landscaping and
Screening Requirements,§6-1-5(D)(2).However, a six (6) foot tall masonry wall
shall be required along the west property line where adjacent to the existing
mobile home park and landscaping must be provided pursuant to the Apache
Junction City Code,Vol.II,Land Development Code,Chapter 6,Landscaping
and Screening Requirements,§§6-1-5(D)(2) and 6-1-5(D)(1).
(iv) The provision of parking lot screen walls and berms
per §6-1-5(E)(5) of the same code referenced immediately above in §3(c)(iii) shall
not be required along the public street frontages of the Property in consideration
for the provision of additional landscaping as required by the City.
4.Development and Operation.
(a)Nothing in this Agreement shall be deemed to be a
covenant by Wal-Mart to construct or open the Wal-Mart Store or, if Wal-Mart
does construct and open the Wal-Mart Store, to own or operate the Wal-Mart
Store;provided however,in the event that Wal-Mart fails to complete the
construction of the Wal-Mart Store, which shall not be less than 200,000 square
feet (based on gross square footage including an associated tire, lube express
facility, outdoor garden center, but excluding the associated fuel pump area)
within twenty-four (24) months (or such longer period as approved by the City) of
the date Wal-Mart becomes the fee owner of the Property or otherwise obtains
control over the property through a lease, this Agreement shall automatically
terminate and the parties shall have no further obligation to one another,
provided however, in such event, Wal-Mart shall be obligated to reimburse the
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City for its invoiced out-of-pocket plan review and engineering expenses
incurred in connection with the Wal-Mart Store, not to exceed $50,000.00.
(b)At the request of Wal-Mart, from time to time, the City
will accept applications for and process in compliance with the City's standard
practices and procedures, any discretionary and non -discretionary approvals or
permits which Wal-Mart may require from time to time with regard to the
development or operation of the Property and the Wal-Mart Store, including any
construction permits,inspections,special use permits,and certificates of
occupancy.Without limiting the generality of the foregoing, the City will use its
best efforts to promptly issue each construction permit and other authorization
necessary for the development and operation of the Property and the Wal-Mart
Store.
5.The Infrastructure.
(a)In the event Wal-Mart elects to construct the Wal-Mart
Store on the Property, Wal-Mart shall construct (or cause to be constructed) the
improvements as described on the Description of Infrastructure attached hereto
as Exhibit C and incorporated herein by this reference (collectively the
"Infrastructure"). Wal-Mart shall have the right to add to the scope and extent of
the Infrastructure through change orders approved in advance by the City,
which approval shall not be unreasonably withheld or delayed.Wal-Mart shall
bid and award the contract or contracts for the actual construction (excluding
design) of all or portions of the Infrastructure in accordance with the public
bidding requirements contained in A.R.S. §34-201 et seq.,and shall provide any
and all performance and payment guarantees with respect to construction of the
Infrastructure.
(b)The City shall as expeditiously as possible, subject to
the City Engineer's recommendation, grant to Wal-Mart any and all temporary
easements, rights of entry, rights -of -way, and/or other use rights on or about all
real property owned or controlled by the City upon, through or under which any
portion of the Infrastructure will be installed or which are useful or necessary for
Wal-Mart to complete the construction of the Infrastructure and the Wal-Mart
Store.The City shall execute and record,or cause the execution and
recordation or any and all documents or instruments reasonably required to
effectuate this section.
(c)The City will use its best efforts to assist Wal-Mart in
obtaining all permits and approvals which are issued by any third party public or
quasi -public entity and which are necessary for the development, construction
and operation of the Infrastructure and the Wal-Mart Store.
(d)The construction of the Infrastructure shall satisfy
current published requirements of the City for public improvements in
connection with the development and operation of the Property, the Wal-Mart
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Store and any expansion, rehabilitation or reconstruction of the same.Wal-Mart
shall not be required to construct any additional public improvements in
connection with the proposed development and operation of the Property or the
Wal-Mart Store.
6.Payment of Costs.
(a)Wal-Mart shall pay all costs and fees associated with
the design, engineering, permitting, acquisition, construction and installation of
the Infrastructure (collectively the "Costs").
(b)The City, in consideration of Wal-Mart's construction of
the Infrastructure, beginning with the first calendar quarter after the opening of
the Wal-Mart Store, and continuing for each calendar quarter thereafter, shall, to
the extent permitted by law and as supported by the approved annual
appropriation by the City Council, on the dates set forth below, pay to Wal-Mart
an amount (the "Quarterly Payments") equal to 50% of the City Privilege Tax, as
levied and imposed pursuant to §8A-400 of the Tax Code of the City of Apache
Junction, generated by retail sales on the Property (whether levied and collected
by the City or levied by City and collected by the State and paid to the City).
(c)The City, to the extent permitted by law, shall make the
Quarterly Payments until an amount equal to $1,300,000 has been paid to Wal-
Mart.The City may however at its option,make the payments called for
hereunder from any source of funds legally available for such expenditure.This
agreement does not create any lien, reservation, or pledge of privilege tax funds
or other funds that would not be available for economic development.
(d)City shall obtain the required information from
confidential records provided to City by the Arizona Department of Revenue and
shall make its estimate of payments according to the following schedule:
(i)City Privilege Tax received for the tax periods
January, February or March shall be tabulated and payment due, if any, shall be
made on or before the 90th day following March 31st of each year.
(ii)City Privilege Tax received for the tax periods
April, May, or June shall be tabulated and payment due, if any, shall be made on
or before the 90th day following June 30th of each year.
(iii)City Privilege Tax received for the tax periods
July, August or September shall be tabulated and payment due, if any, shall be
made on or before the 90th day following September 30th of each year.
(iv)City Privilege Tax received for the tax periods
October, November and December shall be tabulated and payment due, if any,
shall be made on or before the 90th day following December 31st of each year.
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7.Acceptance of Dedication and Grant of Permanent
Easements.
(a)Promptly upon the completion of the Infrastructure,or any
distinct portion thereof, the City shall accept the dedication of the same from
Wal-Mart.Thereafter, the City,at its sole cost and expense shall maintain,
operate, repair and replace the Infrastructure as and when required to keep the
Infrastructure in good condition and repair.The City acknowledges that no
portion of the Infrastructure located on the Property will be dedicated to the
City.Wal-Mart shall maintain all portions of the Infrastructure which are located
on the Property in good condition and repair, with the exception of those areas
set forth in §7(b) below.
(b)Wal-Mart shall grant permanent drainage and maintenance
easements to the City for the areas more particularly described and depicted in
Exhibit D (the Permanent Drainage and Maintenance Easement Areas) attached
hereto and incorporated herein by reference.
8.Approvals.The City shall obtain,and shall maintain all
necessary approvals,permits,consents and authorizations from all
governmental authorities and other persons or entities necessary for the City
ownership,maintenance,operation,repair and replacement of the
Infrastructure.
9.City Representations.The City acknowledges that Wal-Mart is
acquiring the Property,entering into this Agreement,and expending
considerable sums in design and engineering fees associated with the Wal-Mart
Store in reliance on the provisions of this Agreement.The City acknowledges
that Wal-Mart shall continue to expend considerable sums with respect to the
same in reliance on the provisions of this Agreement. The City represents, the
Property is located within the municipal limits of the City and the zoning permits
the construction and operation of the Infrastructure and the Wal-Mart Store. The
City is a duly organized, validly existing municipal corporation in the State of
Arizona. The individuals executing this Agreement have all necessary authority
to enter into this Agreement and to bind the City.
(a)Aside from what has already been disclosed to Wal-
Mart, the City is not aware of any litigation, referendum, investigation, initiative
or proceeding pending or, to the knowledge of the City, contemplated against
the City, the Property, this Agreement, the zoning of the Property, or the levy or
collection of the City Privilege Tax (collectively, "Actions", and each individually
an "Action") which would impair or adversely affect the City's ability to perform
its obligations under this Agreement or under any instrument or document
related hereto or which would impair or adversely affect Wal-Mart's ability to
construct the Wal-Mart Store on the Property.
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10.Wal-Mart's Representations.Wal-Mart represents, that all of
Wal-Mart's representations, are true in all material respects as of the date of this
Agreement.Wal-Mart is a duly organized, validly existing corporation organized
under the laws of the State of Delaware, and is authorized to conduct business in
the State of Arizona.The transactions contemplated by this Agreement, the
execution of this Agreement and Wal-Mart's performance hereunder have been
duly authorized by all requisite action of Wal-Mart's board of directors and no
other approval or consent is required for this Agreement to be binding upon Wal-
Mart.
11.Cooperation and Procedure for Disputes.
(a)Appointment of Representatives.To further the
commitment of the parties to cooperate in the implementation of this Agreement,
the City and Wal-Mart each shall designate and appoint a representative to act
as a liaison between the City and its various departments and Wal-Mart.The
initial representative for the City (the "City Representative")shall be City
Manager Curtis Shook or his designee and the initial representative for Wal-Mart
shall be Randy Crossno,Real Estate Manager,or his designee.The
representatives shall be available at all reasonable times to discuss and review
the performance of the parties' respective obligations under this Agreement.
(b)Expedited City Decisions.The City and Wal-Mart agree
that Wal-Mart must be able to proceed expeditiously with the development of the
Property, the construction of the Wal-Mart Store, and the construction of the
Infrastructure and that,accordingly,an expedited City review process is
necessary.The City shall review all such matters in an expedited manner.The
City shall,to the extent required by law,publish,post and give all notices
relating to the same in a diligent and expeditious manner. The parties agree that
if at any time Wal-Mart believes that an impass has been reached with the City
staff concerning any issue affecting the Property, the Wal-Mart Store or the
Infrastructure, the City shall assign said dispute to the appropriate board or
commission having jurisdiction over the same for adjudication and disposition on
an expedited basis.If the issue on which an impass has been reached is an
issue where a final decision can be reached by the City Staff,the City
Representative shall give Wal-Mart a final decision within fourteen (14) calendar
days after the request for an expedited decision is made.If the issue on which
an impass has been reached is one where a final decision requires action by the
City Council, the City Representative shall be responsible for scheduling a City
Council hearing on the issue at the next regularly scheduled City Council
meeting after the request for an expedited decision is made; provided however,
that if the issue is appropriate for review by the City's Planning and Zoning
Commission, the matter shall be submitted to the Commission first, and then to
the City Council.Both parties agree to continue to use reasonable good faith
efforts to resolve any impass pending any such expedited decision.
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12.Default.Failure or unreasonable delay by either party to
perform any term or provision of this Agreement for a period of ten (10) calendar
days (the "Cure Period") after written notice thereof from the other party shall
constitute a material default under this Agreement.Said notice shall specify the
nature of the alleged material default and the manner in which said material
default may be satisfactorily cured, if possible.If any party to this Agreement is
in material default under any provision, the non -defaulting party shall be entitled
to pursue remedy all remedies available to it at law or in equity.
13.Notices and Filings.
(a)Manner of Serving.All notices,filings,consents,
approvals and other communications provided for herein or given in connection
herewith shall be validly given, filed, made, delivered or served if in writing and
delivered personally or sent by express or overnight mail or by registered or
certified first class United States Mail, postage prepaid, as follows:
If to the City, to:Curtis Shook, City Manager
1001 North Idaho Road
Apache Junction, Arizona 85219
And to:Richard Joel Stern, City Attorney
1001 North Idaho Road
Apache Junction, Arizona, 85219
If to Wal-Mart, to:Wal-Mart Stores, Inc.
2001 S.E. 10thStreet
Bentonville, AR 72716-0550
Attention:President (Store No.13Plit
And to:Mr. Randy Crossno - 8703
Sam Walton Development Complex
2001 S.E. 10thStreet
Bentonville, AR 72716-0550
The parties may from time to time designate in writing and deliver in a like
manner any other such address which they deem necessary without modifying
this Agreement.
14.Mailing Effective.Notices, filings, consents, approvals and
communication given by mail shall be deemed delivered upon receipt or refusal.
15.General.
(a)Waiver.No delay in exercising any right or remedy
shall constitute a waiver thereof, and no wavier by the City or Wal-Mart of the
breach of any covenant of this Agreement shall be construed as a waiver of any
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preceding or succeeding breach of the same or any other covenant or condition
of this Agreement.
(b)Attorney Fees:In any quasi-judicial or administrative
proceedings or any other action in any court of competent jurisdiction, brought
by either party to enforce any covenant or any of such party's rights or remedies
under this Agreement, including any action or declaratory or equitable relief,
each party shall bear their own attorney fees and all costs,expenses and
disbursements in connection with such action, unless such action is determined
by a Court to be brought in bad faith, in such case the court may order attorney
fees and costs be paid to the prevailing party.
(c)Counterparts.This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.The signature pages
from one or more counterparts may be removed from such counterparts and
such signature pages all attached to a single instrument so that the signature of
all parties may be physically attached to a single document.
(d)Headings.The descriptive headings of the paragraphs
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
(e)Exhibits.Any exhibit attached hereto shall be deemed
to have been incorporated herein by this reference with the same force and
effect as if fully set forth in the body hereof.
(f)Further Acts.Each of the parties hereto shall execute
and deliver all such documents and perform all such acts as reasonably
necessary, from time to time, to carry out the matters contemplated by this
Agreement.
(g)Time of the Essence and Successors/Assignment and
Transfer.
(i) Time is of the essence in this Agreement.All of the
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereof.
(ii)Neither party may assign any of its rights or
obligations hereunder, provided however,it is expressly acknowledged and
agreed that Wal-Mart shall have the unrestricted right to assign, transfer and
convey its rights and obligations hereunder to any Affiliate of Wal-Mart without
the approval of the City, but in such event guarantees its liability for any material
breach by the assignee or transferee under this Agreement.For purposes
hereof, an Affiliate of Wal-Mart shall be an entity which Wal-Mart owns not less
than 90% of the equity interests in such entity.
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(iii) As to non -Affiliates of Wal-Mart, Wal-Mart shall have
the right to assign and transfer its rights and obligations hereunder to any
person, firm, agency, organization, and corporation upon receipt of the City's
prior written consent,which consent shall not be unreasonably withheld or
delayed subject to the provisions set forth below.
(iv)Wal-Mart's rights and obligations hereunder may
only be assigned or transferred in writing, recorded in the Official Records of
Pinal County,Arizona,at Wal-Mart's expense,expressly assigning or
transferring such rights and obligations.
(v)No assignment or transfer of rights or obligations
will be permitted if Wal-Mart is in default of any provision of this Agreement.In
addition, the assignee or transferee prior to such assignment or transfer, shall
demonstrate to the City's satisfaction, financial ability to fulfill the obligations
under this Agreement.
(h)No Partnership and Third Parties.It is not intended by
this Agreement to, and nothing contained in this Agreement shall, create any
partnership, joint venture or other similar arrangement between Wal-Mart and
the City.No term or provision of this Agreement is intended to, or shall, be for
the benefit of any person, firm, organization or corporation not a party hereto,
and no such other person, firm, organization or corporation shall have any right
or cause of action hereunder.
(i)Entire Agreement.This Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof.All prior and contemporaneous agreements,representations and
understandings of the parties,oral or written,are hereby superseded and
merged herein.
(j)Amendment.No change or additions to be made to this
Agreement except by a written amendment executed by the parties hereto.
Within ten (10) calendar days after any amendment to this Agreement, such
amendment shall be recorded, at the City's expense, in the Official Records of
Pinal County, Arizona.
(k)Names and Plans.Wal-Mart shall be the sole owner of
all names, titles, plans, drawings, specifications, ideas, programs, designs, and
work products of every nature at any time developed, formulated or prepared by
or at the instance of Wal-Mart in connection with the Property, and the Wal-Mart
Store.However, such documents may be released to the Public, as allowable
under the Arizona Public Records Act.
(I)Recordation.No later than ten (10) calendar days after
this Agreement has been executed by the City and Wal-Mart, it shall be recorded
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in its entirety, by the City at Wal-Mart's expense in the Official Records of Pinal
County, Arizona.
(m)Force Majeure:Neither City nor Wal-Mart shall be in
default under this Agreement in the event of enforced delay due to causes (a)
beyond its control and without fault or negligence, including but not limited to
acts of God, acts of public enemy, acts of the Federal or State government, acts
of the other party, acts of third parties,litigation concerning the validity or
enforceability of this Agreement or relating to transactions contemplated,
including the effect of petitions for referendum,or initiative,fires,floods,
epidemics,quarantine,restrictions,strikes,embargoes,unusually severe
weather or the delays of subcontractors or materialmen due to such causes; (b)
bankruptcy, insolvency or similar action, or any foreclosure or other exercise of
remedies of any lender;and (c) without limiting the foregoing, any action or
inaction of City,its officers,agents,departments,committees,Council,
Boardmembers, commissioners, which delays, directly or indirectly, Wal-Mart's
ability to comply with any construction schedule.In the event of the occurrences
of any such enforced delay, the time or times for performance of the obligations
of the party claiming delay shall be extended for a period of the enforced delay;
provided that the party seeking the benefit of the provisions of this section shall
within thirty (30) calendar days after such party knows of such 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; provided however that either
party's failure to notify the other of an event constituting an enforced delay shall
not alter, detract from or negate its character as an enforced delay was not
known or reasonably discovered by such party.
(n)Governing Law and Venue:The terms and conditions of
this Agreement shall be governed by and interpreted in accordance with the
laws of the State of Arizona.Any action at law or in equity brought by either
party for the purpose of enforcing a right or rights provided for in this
Agreement, shall be tried in a court of competent jurisdiction in Pinal County,
State of Arizona.The parties hereby waive all provisions of law providing for a
change of venue in such proceeding to any other county.
(o)Severability.Every provision of this agreement is, and
will be construed to be, a separate and independent covenant.If any provision
of this agreement or the application of the same is, to any extent, found to be
invalid or unenforceable, then the remainder of this agreement or the application
of that provision to circumstances other than those to which it is invalid or
unenforceable, will not be affected by that invalidity or unenforceability, and
each provision of this agreement will be valid and will be enforced to the extent
permitted by the law, and the parties will negotiate in good faith for such
amendments of this agreement which may be necessary to achieve its intent,
notwithstanding such invalidity or unenforceability.
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(p)On -site Detention Property.That portion of the Property
more particularly described and depicted on Exhibit E, which is attached hereto
and is incorporated herein by reference, is to be used for storm water detention
purposes (the "On -site Detention Property").Wal-Mart agrees that it shall deed
On -site Detention Property to the City upon the occurrence of each of the
following:
1) The City has constructed a regional storm water detention facility
and has constructed all necessary improvements required to channel storm
water from the Property and all other real property which detains in the On -site
Detention Property shown in Exhibit E into said regional facility, all of which must
be accomplished at no cost to Wal-Mart.The design of the regional storm water
detention facility and the plans for the extension of storm drainage lines to the
facility must be submitted to Wal-Mart's engineering consultant for review, which
approval shall not be unreasonably withheld.
2) The City has granted to Wal-Mart all necessary easements as are
required in order for the Property to legally discharge storm water runoff into
the regional facility.
Upon the satisfaction of each of following, Wal-Mart shall provide
the City written notice of said satisfaction, and the City shall have ninety (90)
calendar days from the receipt of such notice to satisfy itself in its sole discretion
as to the condition of the On -Site Detention Property.In the event that the City is
not satisfied with the same, the City shall provide Wal-Mart written notice of said
fact, the City shall be under no obligation to accept the deed to the On -Site
Detention Property and this Section 15(p) shall be of no further force and effect.
In the event that the City is satisfied with the condition of the On -Site Detention
Property,Wal-Mart shall deed the On -Site Detention Property to the City by
special warranty deed.The deed shall be subject to all matters of record
including without limitation any non -monetary encumbrance placed on the On-
Site Detention Property by Wal-Mart in connection with the development of the
Property.The On -Site Detention Property, if conveyed, shall be conveyed on an
AS IS, WHEREAS AND WITH ALL FAULTS BASIS.The City acknowledges and
agrees that Wal-Mart has not and will not make any representation or warranty of
any kind with respect to the conveyance of the On -Site Detention Property.
(q)Indemnity:The parties to this Agreement agree to
indemnify and hold harmless each other,its officers, departments, divisions,
employees and agents,and contractors from any and all claims,liabilities,
expenses or lawsuits as a result of or omissions of each other.
(r)Conflict of Interest:Pursuant to A.R.S.§38-
511,incorporated herein by reference, the parties understand and agree that
this Agreement is subject to cancellation by City or its departments or agencies
if any person significantly involved in initiating, negotiating, securing, drafting or
12
r •
creating the contract on behalf of the City, or its departments or agency, is at
any time, while the Agreement or any extension or modification thereof, is in
effect, an employee or agent of any other party to the Agreement with respect to
the subject matter of the Agreement.
THIS AGREEMENT shall be binding upon the parties hereto, their
administrators, heirs, successors or assigns and can be changed only by written
agreement signed by all parties.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the date
and year first above written.
WAL-MART STORES, INC., a Delaware
corporation/
1,(By
Its Assistant Vice President
ATTEST:THE CITY OF APACHE JUNCTION, an
City Clerk
APPROVED AS TO FORM:
'3 2o • 01
City Attorney
Arizona municipal corporation
By
Title
State of Ar-,;ansos
County of ':)--i24----Or)) ss
Appro d as to Is9a1 terms only
BY
WAL AR1 LEGAL TEAM
Date /-716 -O/
The foregoing instrument was acknowledged before me this 1W )
day of I vat'-0 -),2001, by Robert M. Bedard ,the
Assistant Vice President of Wal-Mart Stores, Inc., a Delaware corporation, on
behalf of the corporation.
(Seal and Expirati
WinT-ARY SEAL"1111%.,•_
Kris tiPhiftips, Notary Public
Benton County, State of Arkansas
My Commission Expires 1(4112004
aullata
NotarkPublic
13
t.
State of )
) ss
County of Plni A -L._)
The fEegoing instrument was acknowlOged befor# me this
day of IYIA-cLeA , 2001, by ...1)0 v L,LArs klot.cma...i , the _
'M oiln rt_of the City of Apache Junction,an
Arizona municipal corporation, on behalf of the corporation.
(Seal and Expiration Date)
Of ICIA1 UAL
JANET R. MASON
rcovuey MPUC SIATE oPASIDNA
41A41COP4 MINN
PO COMM. DOVES MY 14, 20041
14
EXHIBIT "A"
PROPERTY ;..
That part of the Northeast quarter of the Southwest quarter of Section 19, Township 1 North, Range 8 East
of the Gila and Salt River Base and Meridian, Pinal County, Arizona, described as follows:
COMMENCING at the center of Section 19 as shown on Homie Homes, Book 8 of Maps, Page 39 P.C.R.
THENCE South 42°01'49" West, 67.20 feet to a point on the South right-of-way line of U.S. 60 and the
POINT OF BEGINNING;
THENCE South 44°55'27" East, 42.49 feet;
THENCE South 00°00'29" East, 170.00 feet to a point that is 15.00 feet west of the mid -section line of said
Section 19;
THENCE South 03°35'04" East, 240.47 feet to a point on said mid -section line;
THENCE South 00°00'29" East, 236.00 feet along said mid -section;
THENCE North 89°53'38" West, 622.80 feet;
THENCE South 52°44'01" West, 136.19 feet;
THENCE North 89°53'38" West, 324.90 feet;
THENCE South 0000356 West, 285.63 feet;
THENCE North 89°37'54" West, 263.95 feet;
THENCE North 00°00'23" West, 1043.09 feet along the West line of the Northeast quarter of the
Southwest quarter of said Section 19 to a point in the aforementioned South right-of-way line of U.S. 60;
THENCE South 89°53'38" East, 1275.37 feet along said South right-of-way line to the POINT OF
BEGINNING.
Described property being in and forming a part of the City of Apache Junction, Arizona and comprising an
area of 1,015,800 square feet or 23.320 acres more or less.
PAGE 1 OF 2
—
S 89753'50"E
1305.86'
E-4
r:4
PC1 C41-4 r(::4)
X
50.00'
APACHE TRAIL POINT OF
BEGINNING
MID—SEC11ON LINE 1320.37
S 8953'38"E 1275.37'
POINT OF
COMMENCING
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263.95'S0
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23.320 ACRES 0
t.
N 8953'38"
324.90'
‘1-11
X S 5244'01"W
136.19'
S 4455'27"E
42.49'
S 0000'29"E
170.00'
S 03'35'04"E
240.47'
S 00'00'29"E
236.00'
N 8953'38"W 622.80'
GRAPHIC SCALE
200 100 0 200
(IN FEET )
1 inch =200 ft.
tx;
CENTER OF SEC 19
T -1N,R -8E
FOUND COTTON SPINDLE
6.20'
CENTER OF SEC 19
AS SHOWN ON HOMIE HOMES
BOOK 8 OF MAPS,PG 39 P.C.R.
FOUND 1"IRON PIPE
54201'49"W
67.20'
TIE LINE ONLY
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LA and Associate Inc.
EXHIBIT "B"
SITE PLAN
-.FTUTURE I
1-Okssigiorlo
523:05\v7,:951. r-• -•ii,
-----------------------------
EXHIBIT "C"
DESCRIPTION OF INFRASTRUCTURE pg. 1 of 2
QTY.UN IT
IMPROVEMENTS TO APACHE TRAIL
Heavy Duty Asphalt 793 S.Y.
Concrete Driveway Apron 699 S.Y.
Sawcut Ex. Pvg.1067 L.F.
Sidewalk Ramp 6 EA.
Concrete Sidewalk 3713 S.F.
Concrete Curb and Gutter 1261 L.F.
Convert existing overhead power to underground 1300 L.F.
Conduit for SRP conversion 1300 L.F.
Street light poles and bases 5 EA.
Street light conduit (2-3" conduit)1300 L.F.
Remove Exist. Curb 8I Gutter 490 L.F.
Signal Improvements at main entrance and Apache Trail 1 L.S.
IMPROVEMENTS TO DELAWARE DRIVE
Heavy Duty Asphalt 2671 S.Y.
Concrete Driveway Apron 374 S.Y.
Sawcut Ex. Pvg.870 L.F.
Street light poles and bases 4 EA.
Street light conduit (2-3" conduit)750 L.F.
Sidewalk Ramp 5 EA.
Concrete Sidewalk 2630 S.F.
Concrete Curb and Gutter 770 L.F.
REGIONAL DRAINAGE SYSTEM IMPROVEMENTS
2-48" Storm Drain 905 L.F.
2-48" Headwall 1 EA.
Junction Structure 1 EA.
Storm Manhole 2 EA.
Inlets 1 EA.
Modify Exist. Headwall in Median 2 EA.
Riprap at Outfall 275 S.Y.
EXHIBIT "C"ad.
DESCRIPTION OF INFRASTRUCTURE pg. 2 of 2
LOCAL DRAINAGE SYSTEM IMPROVEMENTS
6" SD 442 L.F.
8" SD 50 L.F.
10" SD 925 L.F.
12" SD 205 L.F.
18" SD 1150 L.F.
21" SD 60 L.F.
24" SD 204 L.F.
30" SD 484 L.F.
36" SD 712 L.F.
18" Headwall 1 EA.
24" Headwall 1 EA.
36" Headwall 1 EA.
Single Grate Catch Basin - Type "G"4 EA.
Double Grate Catch Basin - Type "G"5 EA.
3.5' Curb Inlet- Type "A"5 EA.
Rip Rap 529 S.Y.
PreFab Wye 22 EA.
Brooks B-200 Grease Interceptor 2 EA.
LANDSCAPING IMPROVEMENTS
Landscape 212000 S.F.
Irrigation 212000 S.F.
ENGINEERING DESIGN FEES (10%)
The quantities listed herein are only approximations. Actual field/as-built
conditions will be verified by City Engineer, and such verification will be
the basis for approval by City.
16.
EXHIBIT "D"
PERMANENT DRAINAGE AND MAINTENANCE EASEMENT AREAS
That part of the Northeast quarter of the Southwest quarter of Section 19, Township 1 North, Range 8 East
of the Gila and Salt River Base and Meridian, Pinal County, Arizona, described as follows:
COMMENCING at the center of Section 19 as shown on Homie Homes, Book 8 of Maps, Page 39 P.C.R.;
THENCE North 89°53'38" West, 379.55 feet along the East-West mid -section line of said Section 19;
THENCE South 0000622" West, 50.00 feet to a point in the South right-of-way line of U.S. 60 and the
POINT OF BEGINNING;
THENCE South 00°06'22" West, 301.31 feet to the beginning of a tangent curve to the right;
THENCE Southwesterly along said curve through a central angle of 64°44'16", having a radius of 410.00
feet and a length of 463.25 feet;
THENCE South 64°50'38" West, 61.02 feet;
THENCE South 47°47'22" West, 89.90 feet;
THENCE North 89°53'38" West, 60.36 feet;
THENCE North 00°06'22" East, 46.58 feet;
THENCE North 47°47'22" East, 53.61 feet;
THENCE South 89°53'38" East, 87.25 feet;
THENCE North 64°50'38" East, 51.52 feet to the beginning of a tangent curve to the left;
THENCE Northeasterly along said curve through a central angle of 64°44'16", having a radius of 390.00
feet and a length of 440.66 feet;
THENCE North 00°06'22" East, 301.31 feet to a point in the aforesaid South right-of-way line of U.S. 60;
THENCE South 89°53'38" East, 20.00 feet along said South right-of-way line to the POINT OF
BEGINNING;
Described property being in and forming a part of the City of Apache Junction, Arizona and comprising an
area of 23,949 square feet or 0.550 acres more or less.
.
$:;7Stkf7..:"+"":,C e•-::"..Z.,N4)7‘—"cA\Nre:
19809
CHRISTOPHER E.
AULERICH
vle
PAGE 1 OF 2
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1305.86'
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APACHE TRAIL
S 8958'09"W 2626.23'
MID -SECTION L I N E -V I
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0,
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1 11.i
D=6444'16"
R=390.00'
L=440.66'
CB=N32'28'30"E
C=417.59'
N64'50.38"E
S8953'38"E
87.25'
N 47'47 .22"E
53.61'
N00'06'22"E
46.58'
51.52'
N89'53'38"W
60.36'
POINT OF
BEGINNING
csi •
lop
S64'50'38"W
61.02'
S4747'22"W
89.90'
POINT OF
COMMENCING
379.55'
N8953'38"W
334.65'
S00'06'22"W
50.00
-CN -CN
P 6o
0.550 ACRE
D=6444'16"
R=410.00'
L=463.25'
CB=S32"28.30"W
C=439.00'
GRAPHIC SCALE
200 100 0 200
(IN FEET )
1 inch =200 ft.
CENTER OF SEC 19
T -1N,R -8E
FOUND COTTON SPINDLE
6.20'
-CENTER OF SEC 19
'AS SHOWN ON HOMIE HOMES
1BOOK 8 OF MAPS,PG 39 P.C.R.
FOUND 1"IRON PIPE
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EXHIBIT ."E"
ON -SITE DETENTION PROPERTY
That part of the Northeast quarter of the Southwest quarter of Section 19, Township 1 North, Range 8 East
of the Gila and Salt River Base and Meridian, Pinal County, Arizona, described as follows:
COMMENCING at the center of Section 19 as shown on Homie Homes, Book 8 of Maps, Page 39 P.C.R.;
THENCE North 89°53'38" West,1320.37 feet along the East-West mid -section line of said Section 19;
THENCE South 00°00'23"East,808.67 feet along the west line of the Northeast quarter of the Southwest
quarter of said section 19 to the POINT OF BEGINNING;
THENCE South 89°53'38"East, 264.31 feet;
THENCE South 00°03'56"West,285.63 feet;
THENCE North 89°37'54"West,263.95 feet to a point on the aforesaid west line;
THENCE North 00°00'23"West, 284.42 feet along said west line to the POINT OF BEGINNING.
Described property being in and forming a part of the City of Apache Junction, Arizona and comprising an
area of 75,283 square feet or 1.728 acres more or less.
\,
PAGE 1 OF 2
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EXHIBIT "E"
ON—SITE DETENTION
PROPERTY
S 0000'23"E 808.67
N58.67'
WEST LINE
NE 1/4,SW 1/4,SEC.19
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