HomeMy WebLinkAboutRES 07-39 RESOLUTION NO. 07-39
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION, PINAL COUNTY, ARIZONA, AUTHORIZING
THE CITY TO ENTER INTO AN ECONOMIC DEVELOPMENT
AGREEMENT WITH QUIXTRIP CORPORATION
WHEREAS, the Apache Junction City Council;, at its meeting
on May 19, 1998, approved City Council Resolution 98-15 which
created the Crossroads Redevelopment Area (the "Redevelopment
Area") , and at its meeting on July 7, 1998, approved City
Council Resolution 98-20 adopting the Crossroads Redevelopment
Area Plan (the "Redevelopment Area Plan") to guide the
reconstruction and redevelopment of the historic junction area;
and
WHEREAS, the City of Apache Junction ("City") and QuikTrip
Corporation ("Landowner") are desirous of entering an economic
development agreement which obligates Landowner to develop
certain real property within the Crossroads Redevelopment Area
as a retail convenience grocery store with a gasoline fueling
area on such site; and
WHEREAS, the parties have crafted a written development
agreement which sets forth the parties' duties and obligations
for such development; and
WHEREAS, pursuant to A.R.S. § 9-500.05 (A) , a municipality
by resolution or ordinance may enter into a development
agreement relating to specific properties within the
municipality; and
WHEREAS, pursuant to.A.R.S. § 9-500.11, a municipality may
appropriate and spend public monies for an in connection with
economic development activities; and
WHEREAS, the development agreement entitled "Economic
Development Agreement with QuikTrip Corporation" is consistent
with the City' s general plan; and
WHEREAS, the economic development activities identified in
the proposed agreement assist in the retention of jobs or will
otherwise improve or enhance the economic welfare of the
RESOLUTION NO. 07-39
PAGE 1 OF 2
inhabitants of the City as required under A.R.S. § 9-500.11
(D) (1) .
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 ""Economic
Development Agreement with QuikTrip Corporation" and
the Mayor is hereby authorized to sign the agreement.
2. Staff shall record such document in the Pinal County
Recorder' s office within ten (10) days after full
execution .by both parties.
' PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS 21 ST DAY OF AUGUST , 2007.
SIGNED AND ATTESTED TO THIS 21 ST DAY OF AUGUST , 2007.
IN CO
yor
ATTEST:
KATHLEEN CONNELLY
City Clerk
APPROVED AS TO FORM
-07
RICHARD J. STERN
City Attorney
RESOLUTION NO. 07-39
PAGE 2 OF 2
OFFICIAL RECORDS OF
' PINAL COUNTY RECORDER
When recorded return to: �. ,
LAURA DEAN-LYTLE
Richard Joel Stern, Esq. DATE/TIME: 11/25/08 1305
Apache Junction City Attorney FEE: $23.00
300 East Superstition Blvd. PAGES: 29
Apache Junction, AZ 85219 FEE NUMBER: 2008-113344
ECONOMIC DEVELOPMENT AGREEMENT WITH
QUIKTRIP CORPORATION
THIS ECONOMIC DEVELOPMENT AGREEMENT("Agreement")dated to be
effective Auguste 2007 ("Execution Date"), Is made and entered Into by and
between the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal
corporation ("City") and QUIKTRIP CORPORATION, an Oklahoma Corporation
("Developer"). City and Developer are sometimes referred to herein collectively
as the "Parties,"or Individually as a"Party."
RECITALS
WHEREAS, the City of Apache Junction Is entitled to enter Into this
Economic Development Agreement pursuant to Arizona Revised Statutes
Annotated (hereinafter"A.R.S.") §§9-500.05 and 9-500.11; and
WHEREAS, Developer has purchased certain improved real property
located at 385 S. Idaho Road and 21 E. Old West Highway, Apache Junction,
Arizona, the legal description and map of which are attached hereto as Exhibit A
and Exhibit B respectively and Incorporated herein by this reference (the
"Property"); and
WHEREAS, the Property currently Includes a small doctor's office and an
accommodating parking lot accessible from Idaho Road (State Route 88); and
WHEREAS, It Is the Intention of Developer to develop the Property and
construct and operate a retail convenience grocery store (to be known
corporately as "QT 437") consisting of buildings and improvements of
approximately 5,104 square feet on the Property and a canopied gasoline
refueling area that will consist of nine (9) double-sided fuel dispensing units to
provide simultaneous services to eighteen (18)vehicles; and
WHEREAS, City acknowledges Its Intention and willingness to approve the
development of the Property in accordance with the development plans, site
plans, and canopies and building elevations attached as Exhibit C hereto and
Incorporated herein by this reference (the"Project Development Plans");and
WHEREAS, the Parties intend that the uses contemplated, as referenced
l in this Agreement, will be consistent with the City's existing General Plan
("General Plan"), the CB-2 (General Business) zoning designation, and the
Project Development Plans; and
WHEREAS, development of the Property pursuant to this Agreement will
result in aesthetic, planning, economic and other public benefits to the City
Including providing for the construction of the Public Improvements, providing
for planned and orderly development of the Property, adding to the tax base and
otherwise Increasing tax revenues to the City arising from or relating to the
Property, Improving or enhancing the economic welfare of the residents or
businesses of the City and advancing the goals of the General Plan, providing
for the additional municipal benefits tangible and intangible, provide for in this
Agreement, which benefits outweigh or are not disproportionate to the costs
associated with the economic Incentives provided for In this Agreement; and
WHEREAS, the Parties understand and acknowledge that this Agreement
Is a "Development Agreement" within the meaning of, and entered Into pursuant
to the terms of, A.R.S. § 9-500.05; and that the terms of this Agreement shall
constitute covenants running with the Property as more fully described In this
Agreement; and
WHEREAS,the parties hereto wish to enter Into this Agreement to provide
for the development of the Property upon certain terms and conditions.
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS
CONTAINED HEREIN, and for other good and valuable consideration, the
receipt and sufficiency of which Is hereby acknowledged by each party to the
other, It Is hereby agreed as follows:
1. PROPERTY: This Agreement shall relate to the Property, more
particularly identified In Exhibits A and B attached hereto.
2. EFFECTIVE DATE AND TERM: Upon adoption of a resolution by the
Apache Junction City Council, this Agreement shall become effective once
executed by both parties. 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. The term of this Agreement ("Term") shall extend until all payment,
performance and reimbursement obligations of the parties have been fully
performed.
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3. COMPLIANCE WITH GENERAL PLAN: The development of the
Property conforms to and Is consistent with the City's General Plan which is in
effect at the time of execution of this Agreement.
4. SITE PLAN: Developer shall, subject to all applicable .zoning,
development, engineering, landscaping and screening, and development fee
regulations In existence at the time this Agreement is recorded in the Pinal
County Recorder's Office, be entitled to develop and utilize the Property as
more particularly set forth In the Project Development Plans, attached hereto as
Exhibit C. The parties hereby acknowledge and agree that prior to any building
permits being issued by City for the Property,City must approve a Final Site Plan
for the Property or such portion being developed, which Includes, among other
things, all engineering, landscaping and screening specifications. Developer
further agrees that approval of any such Project Development Plans shall be in
accordance with the City's normal procedures, processes, codes, ordinances
and guidelines and shall be In general conformance with the standards and
designs as set forth In Exhibit C, attached hereto.
5. CITY COOPERATION: City agrees that no unreasonable or
discriminatory plan or design review requirements will be Imposed by City In
connection with the implementation of the Project Development Plans set forth
in Exhibit C. Further, City specifically agrees that the building and canopy
elevations, as depicted In Exhibit C, are sufficient In color, material and
architectural design to meet the City design, standards and no material
deviations from these plans will be required by City.
6. CITY'S OBLIGATIONS: In consideration of the Improvements being
constructed on the Property having value to the citizens of the City and the
public In general, and In light of the economic Intangible and tangible benefits
which will be derived by the City upon the completion of this project, City hereby
agrees to do or cause to happen the following:
(a) City shall request Salt River Project ("SRP") to underground the
twelve (12) kilovolt overhead electrical lines which are located In
public right of ways along Idaho Road and Old West Highway as
depicted in Exhibit D. The parties understand that SRP has
established an Undergrounding Aesthetic Fund In which the
expense for undergrounding the electrical lines that are located on
the adjacent public right of ways to Developer's Property shall be
covered, in an amount up to and including One Hundred Twenty
Five Thousand Dollars and No Cents ($125,000.00) ("Base
Amount"). Should the cost of undergrounding exceed this amount,
Developer shall within thirty (30) calendar days after presentation,
pay City all amounts over the Base Amount.
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(b) Four conditions precedent to receiving the benefits of City's
undergrounding request set forth In subparagraph (a) above are: 1)
City receive all necessary dedications from Developer, relating to
the rights-of-way along Old West Highway and/or Idaho Road
abutting the boundary lines of the Property; 2) Developer shall
provide commercially reasonable adequate assurance of property
acquisition and financial ability to perform its obligations
hereunder, subject to the approval of the City Manager and City
Attorney; 3) Developer shall receive approval In writing by the City
Engineer of the Undergrounding Plan as shown in Exhibit D; and 4)
Developer shall comply, with all other obligations under this
Agreement, Including but not limited to the construction time period
and opening deadline in Section 7(a) referenced below.
(c) The federally patented easement for roadway purposes located on
the Property as depicted In Exhibit E Is considered extinguished by
the City upon execution of this Agreement.
7. DEVELOPER'S OBLIGATIONS: In consideration of the undertakings
by City set forth above, Developer agrees to the following:
(a) Construct a retail convenience grocery store with a gasoline fueling
area on the Property referenced In the Recitals In accordance with
the approved Project Development Plans, which shall be in general
conformance with the specifications and details Illustrated In
Exhibit B. Construction of Improvements shall commence no later
than one hundred twenty (120) calendar days after Issuance by City
of a building permit for said Improvements, subject to Excusable
Delays. The convenience store shall be completed and open to the
public no later than two hundred ten (210) calendar days after the
start of construction,subject to Excusable Delays set forth below.
(b) Undergrounding of utilities by SRP or Its agents taking existing
overhead utilities on the east side of Idaho Road (State Route 88)
from the first utility pole on the north side of Old West Highway, and
undergrounding them under Old West Highway inclusive of the
utility pole on the Property and from the northwest corner of the
Property to the utility pole fronting the Property closest to the
extreme southeast corner of the Property and along the frontage of
Old West Highway, as more particularly illustrated on Exhibit D,
attached hereto.
(c) Add additional landscaping south of the proposed building on the
Property to provide additional screening and aesthetic quality to the
southern portion of the Property, as set forth In the landscaping and
screening plan which is attached hereto in Exhibit C.
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(d) Construct enhanced features, Including a hardscape seating bench
Integrated into the landscape design and an expanded sidewalk to
the area at the Immediate corner of Idaho Road (State Route 88)
and Old West Highway.
(e) install all lighting under the proposed fuel canopies in a flush-
mounted manner consistent with all building and electrical codes as
adopted by the City.
M Comply with all zoning, planning, engineering, permitting, and
development fee requirements as are applicable to construction of
said improvements which are In effect at the time building permits
are Issued. Developer and City agree to cooperate in connection
with Site Plan approvals and the obtaining of such other permits or
variances as may be required In connection with such construction
of the plans, elevations and other designs described and illustrated
In the Exhibits. Developer further agrees to cooperate with the City
In locating and granting appropriate utility and drainage easements,
as shall be mutually approved by City and Developer.
(g) City acknowledges and agrees that the Property Is located within a
Redevelopment Areallnfill Incentive District and may be eligible,
upon application to the. City by Developer, for City-provided
Incentives. Such application shall be reviewed by City and City shall
provide Developer a written response to the application no later
than thirty (30) calendar days after the date of filing the application
with City. Developer's request must be in accordance with all
applicable incentive requirements In order to receive any
Incentives.
(h) Dedicate all reasonable, customary and necessary rights-of-way
and easements to City as the City Engineer determines are
appropriate In order for City to carry out Its road design and
construction activities set forth above and to allow Developer to
complete the Improvements depicted In the Exhibits.
(1) Underground at its own cost any electrical lines which originate
from the public right of ways onto private property.
�) Within thirty (30) calendar days of presentation of billing, reimburse
City any amount over One Hundred Twenty Five Thousand Dollars
and No Cents ($125,000.00)which Is attributable to undergrounding
utility lines as referenced In Exhibit D by SRP and its agents.
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S. DEFAULTS: In the event of a default, which default is not cured
within any applicable cure period, either party shall have the right to seek and
obtain all legal and equitable remedies otherwise available to It by law.
9. GOOD STANDING AND AUTHORITY: Developer represents and
warrants that it Is duly formed and validly existing under the laws of the State of
Arizona, and is an Oklahoma Corporation duly qualified to do business in the
state and is in good standing. City represents and warrants that it is an Arizona
municipal corporation.
10. EXCUSABLE DELAYS: Neither City nor Developer shall be in default
under this Agreement In the event of a forced 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 or terrorists, 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, fires, floods, epidemics,
quarantine, restrictions, strikes, embargoes, an 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, Developer's ability to
comply with any construction schedule or requirement Imposed by this
Agreement. 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.
11. INSURANCE; During the period of any construction Involving public
areas or areas to be dedicated to the City or areas already dedicated, Developer
shall obtain and shall provide City with proof of payment of premiums and
certificates of insurance showing that Developer Is carrying, or causing its
contractor(s) to carry, builder's risk insurance, comprehensive general liability
and worker's compensation insurance policies. 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, its Mayor, Council members, and employees as
additional insured parties on such policies.
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12. 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.
13. NONLIABILITY OF CITY OFFICIALS AND OF EMPLOYEES,
MEMBERS AND PARTNERS OF DEVELOPER: No City Council member, official,
representative, agent, attorney or employee of the 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 or breach by City or for any
amount which may become due to any of the other Parties or their successors,
or with respect to any obligation of City under the terms of this Agreement.
Notwithstanding anything contained In this Agreement to the contrary, the
liability of Developer under this Agreement shall be limited solely to the assets of
Developer and shall not extend to or be enforceable against: (1) the Individual
assets of any of the Individuals or entities who are shareholders, members,
managers constituent partners, officers or directors of the general partners or
members of Developer; (11) the shareholders, members or managers or
constituent partners of Developer; or(111)officers of Developer.
14. WAIVER OF CLAIMS PURSUANT TO A.R.S 12-1134 ET SM:
Developer agrees, understands and acknowledges that City Is entering into this
Agreement in good faith and at the specific request of Developer, and further
with the understanding that, If City acts consistently with the terms and
conditions herein, It will not be subject to a claim for diminished value of the
Property from Developer. Developer, on behalf of it and Its successors and
assigns, intends to encumber the Property with the following agreements and
waivers: Developer agrees and consents to all the conditions imposed by this
Agreement, the Zoning, the General Plan and all permits and approvals issued
or granted by City In furtherance thereof, and by signing this Agreement waives
any and all claims, suits, damages, compensation and causes of action
Developer may have now or In the future under the provisions of A.R.S. Sections
12-1134 through and including 12.1136 (but specifically excluding any
provisions included therein relating to eminent domain) and resulting from the
development of the Property consistent with this Agreement, the Zoning, the
General Plan and all permits .and approvals Issued or granted by City In
furtherance thereof or from any "land use law" (as such term Is defined in the
aforementioned statute sections) permitted by this Agreement to be enacted,
adopted or applied by City now or hereafter. Developer acknowledges and
agrees the terms and conditions set forth in this Agreement, the Zoning, the
General Plan and all permits and approvals Issued or granted by City in
furtherance thereof cause the fair market value of the Property to equal or
exceed the fair market value of the Property In the absence of this Agreement,
the Zoning, the General Plan and all permits and approvals issued or granted by
City in furtherance thereof, and such "land use laws."
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15. MISCELLANEOUS:
(a) Notices: All notices required hereunder, shall be deemed to be
properly served if reduced to writing and sent by (1) certified or registered mail;
(ii) Federal Express or similar overnight courier; (Ili) facsimile transmission; or
(iv) personal delivery and the date of such notice will be deemed to have been
the date on which such notice Is delivered or attempted to be delivered as
shown by the certified mail return receipt or a commercial delivery service
record, or In the case of facsimile on the date of receipt of the transmission as
shown on a successful transmission confirmation receipt. All notices shall be
addressed as follows, unless otherwise specified In writing:
To Developer: Kelly Vaughan
QuikTrip Corporation
1116 E. Broadway Road
Tempe,AZ 85282
And to: Stuart C. Sullivan
General Counsel
QuikTrip Corporation
4705 S. 12e E.Ave.,
Tulsa, Oklahoma 74134-7008
To City: George Hoffman
City Manager
City of Apache Junction
300 E. Superstition Boulevard
Apache Junction,AZ 85219
And to: Richard J. Stern
City Attorney .
City of Apache Junction
300 E. Superstition Boulevard
Apache Junction,AZ 85219
Notice of address may be changed by either party by giving notice to the other
party in writing of a change of address. Such change shalt be deemed to have
been effectively noticed five (5) calendar days after being mailed by the party
changing address.
(b) Amendments: No change or addition is to be made to this
Agreement except by written amendment executed by City and Developer.
Within ten (10) calendar days after any amendment to this Agreement, such
amendment shall be recorded in the Official Records of Piinai County, Arizona.
Upon amendment of this Agreement as established herein, references to
"Agreement" or "Development Agreement" shall mean the Agreement as
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amended by any subsequent, duly processed minor or major amendment. The
effective date of any duly processed minor or major amendment shall be the
date on which the last representative for the Parties executes the Agreement.
If, after the effective date of any amendment(s), the Parties find it necessary to
refer to this Agreement in its original, unamended form, they shall refer to it as
the "Original Development Agreement." When the Parties mean to refer to any
specific amendment to the Agreement which amendment is unmodified by any
subsequent amendments, the Parties shall refer to it by the number of the
amendment as well as Its effective date.
(c) 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.
(d) Good Faith of Parties: Except where any matter is expressly stated
to be In the sole discretion of a Party, In performance of this Agreement or in
considering any requested extension of time,the Parties agree that each will act
In good faith and will not act unreasonably, arbitrarily or capriciously and will
not unreasonably withhold, delay or condition any requested approval,
acknowledgment or consent.
(e) Assignment and Transfer: Because City Is reasonably relying on
promises made herein which .If are fully executed will result in a substantial
public benefit, Developer shall not assign or transfer Its rights and duties under
this Agreement.
(f) Governing Law: This Agreement shall be governed by and
construed under the laws of the State of Arizona. This Agreement shall be
deemed made and entered Into In Pinal County and the Parties shall not move to
change venue.
(g) Waiver: No waiver by either party of a breach of any of the terms,
covenants or conditions of this Agreement shall be construed or held to be a
waiver of any succeeding or preceding breach of the same or any other term,
covenant or condition herein contained. 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.
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(h) Severabllity: In the event that any phrase, clause, sentence,
paragraph, section, article or other portion of this Agreement shall become
Illegal, null or void or against public policy, for any reason, or shall be held by
any court of competent jurisdiction to be Illegal, null or void or against public
policy, the remaining portions of this Agreement shall not be affected thereby
and shall remain In force and effect to the fullest extent permissible by law,
except if the remaining portions of the Agreement do not provide one or both of
the parties with the essential consideration for entering into this Agreement.
(1) Exhibits: All exhibits attached hereto are Incorporated herein by
reference as though fully set forth herein. The exhibits are as follows:
Exhibit A Legal Description
Exhibit B Map of Property
Exhibit C Project Development Plans (development plans, site
plans, landscaping and screening plans, drainage and
grading plans,and canopies and building elevations)
Exhibit D Underground Utility Location
Exhlbit E Federally Patented Easement
Due to likely amendments to the Project Development Plans referenced above In
Exhibit C, the parties agree that only Exhibits A, B, and O, shall be recorded with
this Agreement. Exhibit C and any amendments thereto shall be available and
on file with the City Development Services Department.
0) 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. The foregoing sentence shall In no way affect the validity of any
Instruments executed by the parties In the form of the exhibits attached to this
Agreement.
(k) Counterparts: This Agreement may be executed in multiple
counterparts, each of which shall constitute one of the same instrument.
(1) Consents and Approvals: City and Developer shall at all times act
reasonably with respect to any and all matters which require either party to
review, consent or approve any act or matter hereunder.
(m) Enforcement by Either Party: This Agreement shall be enforceable
by any party hereto notwithstanding any change hereafter in any applicable
General Plan, specific plan,zoning ordinance, subdivision ordinance or building
ordinance adopted by City which substantially changes, alters or amends the
applicability of said plans or ordinances to the development of the Property.
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(n) Cumulative Remedies: In addition to any other rights or remedies,
either party may Institute legal action to cure, correct or remedy any default, to
enforce any covenant or agreement herein, or to enjoin any threatened or
attempted violation, including suits for declaratory relief, specific performance,
relief in the nature of mandamus and actions for damages. All of the remedies
described above shall be cumulative and not exclusive of one another, and the
exercise of any one or more of the remedies shall constitute a waiver or election
with respect to any other available remedy. The provisions of this subsection
are not intended to modify any provisions of this Agreement and are not
Intended to provide additional remedies not otherwise permitted by law.
(o) Mediation: If there Is a dispute hereunder which Is.not an Event of
Non-Performance and which the Parties cannot resolve between themselves,
the Parties agree that there shall be a ninety (90) calendar day moratorium on
litigation during which time the Parties agree to attempt to settle the dispute by
non-binding mediation before commencement of litigation. The mediation shall
be held under the Commercial Mediation Rules of the American Arbitration
Association but shall not be under the administration of the AAA unless agreed
to by the Parties in writing, In which case all administrative fees shall be divided
evenly between City and Developer. The matter in dispute shall be submitted to
a mediator mutually selected by Developer and City. If the Parties cannot agree
upon the selection of a mediator within ten (10) calendar days, then within five
(5) calendar days thereafter, City and Developer shall request that the Presiding
Judge of the Superior Court In and for the County of Pinal, State of Arizona,
appoint the mediator. The mediator selected shall have at least ten (10) years
experience In mediating or arbitrating disputes relating to commercial property.
The cost of any such mediation shall be divided equally between City and
Developer. The results of the mediation shall be nonbinding with any Party free
to Initiate litigation upon the conclusion of the latter of the mediation or of the
ninety (90) calendar day moratorium on litigation. The mediation shall be
completed In one day (or less) and shall be confidential, private, and otherwise
governed by the provisions of A.R.S. §12-2238.
(p) Attorney Fees: In any arbitration, 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.
(q) No Third Party Beneficiaries/No Partnership: This Agreement is
made and entered Into for the sole protection and benefit of the parties. No
person other than the parties shall have any right of action based upon any
provision of this Agreement. Additionally, it Is not intended by this Agreement
to, and nothing contained in this Agreement shall, create any partnership,joint
venture or other arrangement between Developer and City.
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No person or entity shall be a third party beneficiary to this Agreement, except
for permitted transferees, assignees, or lenders to the extent that they assume
or succeed to the rights and/or obligations of Developer under this Agreement,
and except that the Indemnified Parties referred to in the indemnification
provisions this Agreement shall be third party beneficiaries of such
Indemnification provisions. Notwithstanding the foregoing, no Event of Non-
Performance by Developer shall preclude, delay, impair or restrict the right of
Developer or any third party(by way of illustration, and not of limitation,a tenant
of premises within the Property or a purchaser of a Pad Site) to obtain
approvals, consents, reviews, permits, certificates of occupancy and the like
from City with respect to construction on or related to the Property or the
property or property rights of such third party.
(r) Successors and Assigns: Subject to the restrictions and
prohibitions on assignment in this Agreement, all of the covenants and
conditions set forth herein shall run with the land and shall be binding on the
successors In Interest and assigns.
(s) Restriction on Transfers: No voluntary or Involuntary successor in
Interest to Developer shall acquire any rights or powers under this Agreement,
except as expressly set forth herein.
(t) Time is of the Essence: Time Is of the essence of this Agreement
and in carrying out the terms of each provision hereof.
(u) Indemnity: Developer 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, experts'
fees and court costs associated) which arise from or relate in any way to any act
or omission by Developer, or Its employees, contractors, subcontractors,
agents or representatives, undertaken In fulfillment of Developer's obligations
under this Agreement. The provisions of this Section, however, shall not apply
to loss or damage or claims therefore which are attributable to acts or
omissions of City, Its agents, employees, contractors, subcontractors or
representatives. Developer shall have no defense obligation in any instance in
which a claim is asserted based, In whole or In part, upon an act or omissions of
City, its employees, contractors, subcontractors, agents or representatives.
The foregoing indemnity obligations of Developer shall survive the expiration or
termination of this Agreement for a period equal to the applicable statute of
limitations period.
(v) 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 department or agencies if any person
12
significantly involved In initiating, negotiating, securing, drafting or creating the
contract on behalf of City, or its department or agency, is at any time, while the,
contract or any extension of the contract Is In effect, an employee or agent of
any other party to the contract with respect to the subject matter of the
contract.
IN WITNESS WHEREOF, City has caused this Agreement to be duly
executed in Its name and behalf of Its Mayor and its seal to be hereunto duly
affixed and attested by its City Clerk, and Developer has signed an sealed the
same, on or as of the day and year first above written.
QUIKTRIP CORPORATION,an Oklahoma
Corporation
I +
By:. Kelly Vaugh n
Its: Director of Real Estate
AP R VED T FORM:
M
Stuart C. Sullivan
Attorney for QuikTrip
CITY OF APACHE JUNCTION,ARIZONA
an Arizona municipal corporation
r
By:a John insalaco
Its: Mayor
ATTEST
Kathleen Connelly
City Clerk
APPROVED AS TO FORM:
6cey °0
Richard J. Stern
City Attorney
13
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
On August . 2007, before me, , a Notary
Public in and for said State, personally appeared Kelly Vaughan, personally
known to me (or proved to me on the basis of satisfactory evidence)to be the
person whose name is subscribed to the within Instrument and acknowledged to
me that he/she executed the same In his/her authorized capacity for QuikTrip
Corporation,an Oklahoma corporation,and that his/her signature on the
Instrument the person,or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
pen s Notary PublicMaftVCW* ' � 4- -seal cr eVM
( } osnlrmas
STATE OF ARIZONA }
}ss.
COUNTY OF PINAL }
The foregoing Instrument was acknowledged before me this'D I day of
August, 2007, by John Insalaco,the Mayor of the City of Apache Junction,
Arizona, an Arizona municipal corporation,who acknowledged that he/she
signed the foregoing Instrument on behalf of the City.
WITNESS my hand and official seal.
NOTARY PUBLIC NOta Pu IC
STATE OF ARIZONA rY
Pinai County
(s SUZANNE HEN lNGER
My Commission Expires January 31,2011
14
EXHIBIT A
O
00
0
U
N
LEGAL DESCRIPTION
i
A PORTION OF THE SOUTHWEST QUARTER OF SECTION 21, TOWNSHIP 1
oNORTH, RANGE 8 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN,
0 MARICOPA COUNTY, ARIZONA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
of
COMMENCING AT A FOUND ARIZONA HIGHWAY DEPARTMENT BRASS CAP IN
HANDHOLE AT THE SOUTHWEST CORNER OF SAID SECTION 21, FROM WHICH
^o A FOUND ARIZONA HIGHWAY DEPARTMENT BRASS CAP IN HANDHOLE AT THE
N WEST QUARTER CORNER OF SAID SECTION 21 BEARS NORTH 00 DEGREES
14 MINUTES 20 SECONDS WEST, A DISTANCE OF 2637.67 FEET;
o THENCE NORTH 00 DEGREES 14 MINUTES 20 SECONDS WEST, ALONG THE
c WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 21, A DISTANCE
-', OF 1318.83 FEET TO THE SOUTHWEST CORNER OF THE NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 21;
THENCE NORTH 89 DEGREES 36 MINUTES 09 SECONDS EAST, ALONG THE
Q SOUTH LINE OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE
NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SAID SECTION 21, A
DISTANCE OF 50.00 FEET TO A POINT ON THE EASTERLY RIGHT—OF—WAY
LINE OF IDAHO ROAD, SAID POINT ALSO BEING THE POINT OF BEGINNING.
v+
THENCE NORTH 00 DEGREES 14 MINUTES 20 SECONDS WEST, PARALLEL
WITH AND 50.00 FEET EAST OF THE WEST LINE OF THE SOUTHWEST
w QUARTER OF SAID SECTION 21, AND ALONG SAID EASTERLY RIGHT—OF—WAY
r7
LINE, A DISTANCE OF 306.54 FEET;
r7
THENCE NORTH 44 DEGREES 18 MINUTES 43 SECONDS EAST, A DISTANCE
I OF 31.72 FEET, TO A POINT ON THE SOUTHWESTERLY RIGHT—OF—WAY LINE
OF OLD WEST HIGHWAY;
.o
THENCE SOUTH 55 DEGREES 06 MINUTES 38 SECONDS EAST, ALONG SAID
SOUTHWESTERLY RIGHT—OF—WAY LINE, A DISTANCE OF 569.67 FEET;
-v
THENCE SOUTH 89 DEGREES 36 MINUTES 09 SECONDS WEST, ALONG THE
SOUTH LINE OF THE SOUTHWEST QUARTER OF THE NORTHWEST. QUARTER OF
THE SOUTHWEST QUARTER OF SAID SECTION 21, A DISTANCE OF 488.17
FEET, TO THE POINT OF BEGINNING.
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EXHIBIT B
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S89`36'09"W 488.17'
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j a ea' 1 sa'
o SCALE: 1"=80'
EXHIBIT C
Originals can be viewed at:
City of Apache Junction
City Clerk's Office
300 E. Superstition Blvd.
Apache Junction, AZ 85219
1 \ \ \ ffM DATA � a�.�.u■
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G +A'T'�Mff
ui
� \\ GENERAL CONSTRUCTION NOTES V
m m \ \ ,.ALL WIEIEIONS MR IRON OR m FACE Q
\ A \ \ a was d
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W
\\ AWE /IORM GENERAL NOTES V
LANDSCAPE PLAN awe m.n wws Aat Yo e
l rq( pa+� ,,,\ ,.., ..\ ' Apedr.kortml Ek�■r ------...�- '- _-� ''w°�vtin wu.��lsrwwwum Yar
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F.�Nm�rJ]I mµn and w.1 IYWy'!wane Rd\-2331.1-I- ,- 2, ZOQS-tafian-n ace.SC
IDAHO ROAD
Afw ,
J
.i': '!t:' `.d:;`.%'.'�`'s •'� ,� t Via.
� � I .Nc C_t j/ .'.{' *f;�;s .`✓:� gip. J
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ab- ,
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MATCH SHT C2.6
.r r 10 1� to jo Igo 'I jig Ig Ix 0 0 �! 10
Fill, if if pf Jill III
i a s � aSa
oil o � � g �
If oil
j 3i if C
aR as some
c� A i a
QufkTr1 Store No.:437 21 EAST OLD WEST HWY APACHE JUNCTV ARIZONA
.r
r
North Elevation
�s
MTw♦U11:wY w'-ifM M:/Ww/L� .v
�'M i41w tl MTi if`-f M MIIwM M Oqy�'
East Elevation west Devotion
m _
:a.
^:. ._
South Devotion
�w w...uv+ed"
Building Elevations ' aw. w.w�aw u �
nw°�w+[+wma+ wiwi vmAO�e�n'� nnr
w01�maw°ir uwrno®�imwm�ie�e�Q� �
QuikTdp Shore No.:43T SEC Rialto and Old West Hwy. Apache Junctlort,AZ a
r
k r
North Elevation
I� 1'
East Elevation West Elevation
k�2
See ONk"m
nee o.Men aft emom
t�uikTr Gas Canopy Elevations . �Rowa.
Rn6 YI[Nbl¢tm N�IO1 ON.M'M IIILL�
OOOM:.I>MRNWOYI[dTCMt.IN MM ,-0.
QuikTdp Store No.:437 SEC Idaho and t31d West iiviy. Rpadte Juice.AZ
EXHIBIT D
o
00
Q
LZ
OVERHEAD ELECTRIC LINE TO REMAIN
E OVERHEAD FROM THIS POLE ON
CY) THIS OVERHEAD ELECTRIC
LINE TO BE PLACED UNDERGROUND
0
N,
0
c
14
x
cq
0.
0 0-c
THIS OVERHEAD ELECTRIC
s LINE TO BE PLACED UNDERGROUND
OVERHEAD ELECTRIC LINE TO REMAIN
OVERHEAD FROM THIS POLE ON
or
ol 810, 160'
SCALE: 1"=80'
EXHIBIT E
Legal Description
Quiktrip 437
Right of Way Abandonment
That portion 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:
The East 33 feet of the South 33 feet of the West Half of the Southwest Quarter of the Northwest
Quarter of the Southwest Quarter of said Section 21 lying Westerly of any portion of US 60/01d West
Highway, as previously abandoned in Docket 1345, Page 343, Office of Records, Pinal County,
Arizona
And,
Any portion lying within the South 33 feet of the East half of the Southwest Quarter of the Northwest
Quarter of the Southwest Quarter of said Section 21 lying Westerly of any portion of US 60/01d West
Highway, as previously abandoned in Docket 1345, Page 343, Office of Records, Pinal County,
Arizona
LAND sG
,ter q��r1GAT�c
JESS R.
cs ALVAR
P•
Any modification to or omission from this description completely
absolves the surveyor from any liability for this description.
07/24/07 Page 1 of 1
0:%06068%legalM6068xb05.doc
Ii
�WEST QUARTER CORNER OF SECTION 21
N.
EAST LINE, EAST 112,
EAST LINE, WEST 112, ► SW .114, NW 114
SW 114, NW 114 SW l f4, SECTION 21
,,,SW 114, SEC7701V 21
SCALE:1"-80' 40$-
'Ji.
50' JJ' RIW ABANDONMENT—
Rlw DOCKET 1127, PAGE 916, P.C.R.
Jj.00 34.76'
JESS FL
NORTHSIG"itapitr L A N D S U R V E Y C 0 N 3 U L T I N G I N C
637 South 48th Street,Suite 2011 Tempe,Arizona 8EM
P-480-303-M31 F.480-303-0834
15068XBO5.DWG SOUTHWEST CORNER OF SEC77ON 21 www.NorfftWghtSurvsy.cofn