CarMax Development Agreement

Development Agreement - CarMax 
February 7, 2023 
 
When recorded return to: 
 
City of El Mirage  
City Clerk 
10000 N. El Mirage Road  
El Mirage, AZ 85335 
 
 
 
DEVELOPMENT AGREEMENT 
CARMAX 
EL MIRAGE, ARIZONA 
 
 
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is entered into this 7th day of 
February, 2023 (“Effective Date”) by CARMAX AUTO SUPERSTORES, INC. a Virginia 
corporation (“Developer”) and the CITY OF EL MIRAGE, an Arizona municipal corporation 
(“City”). 
 
RECITALS 
 
 
WHEREAS, Developer has a real property interest in that certain property located in the 
City of El Mirage, Arizona, consisting of approximately 57 acres, legally described in Exhibit “A” 
attached hereto and incorporated herein by reference (the “Property”); 
 
 
WHEREAS, Developer intends to develop the Property that will consist of various onsite 
improvements associated with a vehicle reconditioning and wholesale auction facility (the 
“Project”); 
 
WHEREAS, the City requires that the Developer, as part of the Project, construct offsite 
improvements that include, but are not limited to, half street improvements along their frontage of 
Olive Avenue (the “Olive Avenue Improvements”); 
 
WHEREAS, Arizona Public Service (APS) has a proposed regional project that will install 
230kV transmission power lines/poles between State Route 303 and 111th Avenue and as part of 
that project would be removing the existing 69kV transmission lines/poles along Olive Avenue in 
front of the Project (the “APS Improvements”). The estimated completion year for this work is 
2025; 
 
WHEREAS, Developer and City desire to facilitate the development of the Property as a 
part of the City’s growth and development. In furtherance of this aim, Developer and City have 
cooperated in the preparation of this Agreement; 
 
WHEREAS, Developer desires to defer the Olive Avenue Improvements (the “Deferred 
Improvements”) until the APS Improvements have been completed along the Project’s Olive 
Avenue frontage as the existing power poles would obstruct or hinder the installation of the 
roadway, sidewalk, landscaping, etc. along this corridor.

Development Agreement - CarMax 
February 7, 2023 
 
 
WHEREAS, Developer will likely request Certificate of Occupancy for the onsite 
building(s) and open for business prior to the completion of the Deferred Improvements;  
 
WHEREAS, the City is agreeable to the deferment as more particularly described in this 
Agreement; 
 
 
WHEREAS, Developer and City desire to enter into this Agreement in order to set forth 
the rights and obligations of each party with respect to the construction of the Deferred 
Improvements and timing for the same; and 
 
 
WHEREAS, pursuant to the provisions of Arizona Revised Statutes Annotated (“A.R.S.”) 
§§ 9-500.05, et seq., Developer and City are authorized to enter into this Agreement; 
 
AGREEMENT 
 
 
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions, it 
is agreed as follows: 
 
1. 
INCORPORATION OF DOCUMENTS AND RECITALS. All documents and 
exhibits referred to in this Agreement are hereby incorporated by this reference into this 
Agreement, and the Recitals stated above are hereby incorporated by reference into this Agreement 
and made a part hereof. 
 
2. 
COMPLIANCE. The determinations of the City in this Agreement and the 
assurances provided to Developer in this Agreement are provided pursuant to and as contemplated 
by A.R.S. § 9-500.05 and other applicable law, bargained for and in consideration for the 
undertakings of Developer set forth herein and contemplated by this Agreement and are intended 
to be and have been relied upon by Developer in undertaking the obligations of development of 
the Property. 
 
3. 
RIGHTS AND BURDENS RUN WITH THE LAND. The rights and obligations 
established under this Agreement are attached to and run with the Property. Upon the Effective 
Date of this Agreement, Developer and any successors or assigns are entitled to exercise the rights 
granted and perform the obligations required pursuant to this Agreement. 
 
4. 
DESCRIPTION OF THE DEFERRED IMPROVEMENTS. The City agrees to 
accept Developer’s deferment of the improvements described in 4a below until the APS 
Improvements along the Project’s Olive Avenue frontage are completed.  
 
a. 
Olive Avenue Improvements.  The Project is responsible for completing the 
north half of Olive Avenue consisting of two through lanes, a bike lane and full median, an eight-
foot-wide sidewalk, streetlights, signing/striping and landscaping/irrigation along its frontage. The 
Project will also be responsible for any deceleration lanes.

Development Agreement - CarMax 
February 7, 2023 
 
5. 
CONDITIONS OF THE DEFERRED IMPROVEMENTS. The City agrees to 
accept Developer’s deferment of the improvements with several conditions described in 5a through 
5e below. 
 
a. 
Design of Olive Avenue Improvements.  The design of the Olive Avenue 
Improvements shall be completed by the Developer and approved by the City in 2023 to avoid 
delays in starting construction. A permit for these improvements will be provided at the APS 
Completion Date noted in 5c below. 
b. 
Interim Olive Avenue Improvements.  Interim improvements such as 
temporary turn lanes, alternative driveway locations, drainage features, etc. may be required to be 
installed prior to Certificate of Occupancy(ies) being released. The design of these interim 
improvements shall be included and permitted with the Onsite Improvement Plans. 
c. 
Timing of Construction of Deferred Improvements.  Once the APS 
Improvements are completed along the Project’s Olive Avenue frontage, the City will provide the 
Developer with a letter memorializing the APS Completion Date and all Deferred Improvements 
shall be completed to the reasonable satisfaction of the City within one year of that date. 
 
d. 
Advancement of Olive Avenue Improvements.  If the lack of the installation 
of the Olive Avenue Improvements causes or threatens to cause safety issues within the City’s 
right of way, the installation of a portion of the Deferred Improvements or alterations of the interim 
improvements will be required by the City. The Developer and City will cooperate to expedite the 
installation of these additional improvements. 
e. 
Delay or Cancelation of APS Improvements.  If the APS Improvements are 
canceled or delayed beyond 2026, the City will provide the Developer with a letter requiring APS 
to start the process of relocating the existing power poles along the Olive Avenue frontage 
immediately. All Deferred Improvements shall be completed to the reasonable satisfaction of the 
City within two years of the date of that letter. 
 
6. 
ASSURANCE.  The parties acknowledge and agree that the City, prior to issuing 
any permits, requires the Developer to provide appropriate and necessary assurances that the 
requirements set forth in this Agreement will be completed (the "Deferred Improvements 
Assurance") in an amount to be determined by the City.  In such case, the Developer may elect, 
with the approval of City, which approval shall not be unreasonably withheld, any one of or a 
combination of the following methods of assurance.  All such assurances provided by the 
Developer shall comply with the applicable provisions of the City's regulations relating to 
assurances: 
(a) 
Developer may file with the City a performance bond.  
(b) 
Developer may deliver to the City an irrevocable and unconditional stand-
by letter of credit.  
(c) 
Other appropriate assurance allowed by the City Code.

Development Agreement - CarMax 
February 7, 2023 
 
The City agrees that within thirty (30) days from the City's approval of the 
completed Deferred Improvements for which the Developer has provided assurances, the City shall 
release such Deferred Improvement Assurances, in whole or in part, as may be appropriate under 
the circumstances, in the manner provided in the applicable regulations. 
7. 
TERM.  This Agreement is effective as of the date first set forth above and, except 
as otherwise set forth herein, shall remain effective until such time as Developer has completed 
and the City has accepted the Deferred Improvements. After Developer has completed and the City 
has accepted the Deferred Improvements, upon Developer’s request, the City shall execute and 
record a release of this Agreement with the Recorder’s Office of Maricopa County, Arizona. 
 
8. 
NOTICES. All notices, filings, consents, approvals and other communications 
provided for herein or given in connection herewith shall be in writing and shall be given by 
personal delivery, overnight courier or facsimile transmission, or sent by registered or certified 
mail, postage prepaid, correctly addressed to the intended recipient at the address set forth below: 
 
 
     City: 
City of El Mirage  
 
 
 
10000 N El Mirage Road  
 
 
 
El Mirage, AZ 85335 
Attn: City Manager 
            
With a Copy to: 
City of El Mirage  
 
 
 
10000 N El Mirage Road  
 
 
 
El Mirage, AZ 85335 
Attn: City Clerk 
 
 
        Developer: 
CarMax Auto Superstores, Inc. 
12800 Tuckahoe Creek Parkway 
Richmond, VA 23238 
Attn: Vice President of Real Estate  
 
9. 
WAIVER. No delay in exercising any right or remedy by either City or Developer 
shall constitute a waiver thereof. Waiver of any of the terms of this Agreement shall not be valid 
unless in writing and signed by all parties hereto. The failure of any party to enforce the provisions 
of this Agreement or require performance of any of the provisions, shall not be construed as a 
waiver of such provisions or affect the right of the party to enforce all of the provisions of this 
Agreement. Waiver of any breach of this Agreement shall not be held to be a waiver of any other 
or subsequent breach thereof. 
 
10. 
BINDING EFFECT. The rights, benefits and obligations in this Agreement, shall 
be binding upon City and its successors and assigns. The rights, benefits and obligations in this 
Agreement shall be binding upon Developer and its successors and assigns.   
 
11. 
GOVERNING LAW. This Agreement and all terms and conditions hereof, and 
any dispute, controversy, claim or cause of action arising out of or related to this Agreement is 
governed by the laws of the State of Arizona.

Development Agreement - CarMax 
February 7, 2023 
 
12. 
CHOICE OF FORUM. Notwithstanding A.R.S. § 12-406, any suit or action 
brought under this Agreement shall be commenced only in state or federal courts in the State of 
Arizona, Maricopa County. The parties hereto expressly covenant and agree that in the event of a 
dispute arising from this Agreement, each of the parties hereto waives any right to a trial by jury.  
In the event of litigation, the parties hereby agree to submit to a trial before the Court. 
 
13. 
EXERCISE OF AUTHORITY. It is understood and agreed that Developer shall 
not in any way exercise any portion of the authority or sovereign powers of City and shall not 
make or contract or commit or in any way represent itself as an agent for City. Nor shall anything 
in this Agreement be construed to create any partnership, joint venture or principal agency 
relationship between the parties. 
 
14. 
RECORDATION. In order to provide notice to third parties, the City shall record 
this Agreement in the official records of the Maricopa County Recorder within ten (10) days after 
the full execution of this Agreement. 
 
15. 
CONFLICT OF INTEREST. This Agreement is subject to the provisions of 
A.R.S. § 38-511. 
 
16. 
SEVERABILITY OF PROVISIONS. Each term and provision of this Agreement 
shall be considered severable and if, for any reason, any term or provision of this Agreement be 
declared or be determined to be illegal or invalid, the validity of the remaining terms and provisions 
shall not be affected thereby, and said illegal or invalid term or provision shall not be deemed a 
part of this Agreement, notwithstanding any other provision of this Agreement to the contrary.  
 
17. 
ADDITIONAL ACTS AND DOCUMENTS. Each party hereto agrees to do all 
such things and take all such actions, and to make, execute and deliver such other documents and 
instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of this 
Agreement. If any action or approval is required of any party in furtherance of the rights under this 
Agreement, such approval shall not be unreasonably withheld. 
 
18. 
AMENDMENTS. No amendment shall be made to this Agreement except by 
written document executed by City and Developer. Within ten (10) days after the execution of any 
amendment by both parties, the amendment shall be recorded with the Maricopa County Recorder, 
Maricopa County, Arizona. 
 
19. 
ENTIRE AGREEMENT. This Agreement supersedes any and all other 
agreements, either oral or in writing, between the parties with respect to the subject matter of the 
Agreement and contains all the covenants and agreements between the parties with respect to said 
matter. 
 
20. 
HEADINGS. The headings for the paragraphs of this Agreement are for 
convenience and reference purposes only and in no way define, limit or describe the scope or intent 
of said paragraphs nor in any way affect this Agreement.

Development Agreement - CarMax 
February 7, 2023 
 
21. 
ATTORNEYS FEES. The parties hereto expressly covenant and agree that in the 
event of litigation arising from this Agreement, neither party shall be entitled to an award of 
attorney fees, either pursuant to the Agreement, pursuant to A.R.S. § 12-341.01(A) and (B), or 
pursuant to any other state or federal statute, court rule, case law or common law.  As an alternative 
to filing a lawsuit to resolve the dispute, the parties may mutually agree to arbitrate the dispute. 
 
22. 
ASSIGNMENT. Developer shall have the right to sell, transfer or assign part or 
all of the Property to any person or entity at any time during the duration of this Agreement. 
 
23. 
COUNTERPARTS. This Agreement may be executed in any number of 
counterparts, each of which shall be an original but all of which shall constitute one and the same 
instrument. 
 
24. 
DEFAULT. Failure or unreasonable delay by either party to perform or otherwise 
act in accordance with any term or provision hereof shall constitute a breach of this Agreement 
and, if the breach is not cured within 15 business days after written notice thereof from the other 
party (the “Cure Period”), the breach constitutes a default under this Agreement; provided, 
however, that if the failure is such that more than 15 business days would reasonably be required 
to perform such action or comply with any term or provision thereof, then the party shall have such 
additional time as may be necessary to perform or comply so long as the party commences 
performance or compliance within said 15 business day period and diligently proceeds to complete 
such performance or fulfill such obligation. In the event a breach is not cured within the Cure 
Period, the non-defaulting party shall have all the rights and remedies that may be available at law 
or in equity. 
 
25. 
REPRESENTATIONS AND WARRANTIES OF DEVELOPER. As of the 
Effective Date, Developer represents, warrants and covenants to City as follows: 
 
a. 
Organization. Developer is a Virginia corporation and has the full right 
and authority to submit its interest in the Property to the provisions of this Agreement. 
 
b. 
Authorization. Developer is in good standing and is qualified to do business 
in Arizona. The person signing this Agreement on Developer’s behalf has the authority and right 
to enter into this Agreement on Developer’s behalf, without any further act or authorization. 
Developer is not prohibited from executing this Agreement by any law, rule, regulation, 
instrument, agreement, order or judgment. 
 
26. 
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CITY. As of 
the Effective Date, City represents, warrants and covenants to Developer as follows, with the 
understanding that each of the following are material to Developer’s willingness to enter in this 
Agreement, that Developer is relying on each of the following, and that Developer would not have 
agreed to enter into this Agreement but for each and every one of the following: 
 
a. 
Approval. City has approved this Agreement at a duly held and noticed 
public meeting by its Mayor and City Council, at which a quorum was duly present, and has 
authorized the execution hereof.

Development Agreement - CarMax 
February 7, 2023 
 
 
b. 
Authorization. City is an Arizona municipal corporation, is in good standing 
and is qualified to do business in Arizona. The person signing this Agreement on City’s behalf has 
the authority and right to enter into this Agreement on City’s behalf, without any further act or 
authorization by City. City is not prohibited from executing this Agreement by any law, rule, 
regulation, instrument, agreement, order or judgment. 
 
27. 
FORCE MAJEURE. If the Developer’s completion of the Deferred 
Improvements contemplated in this Agreement is prevented or delayed, despite the Developer’s 
commercially reasonable efforts to perform, by causes beyond the Developer’s reasonable control, 
including strikes, riots, fires, floods, lightning, rain, earthquake, extraordinary wind or other 
weather events, war, invasion, insurrection, civil commotion, unavailability of resources due to 
national defense priorities or natural disaster recovery, supply chain disruptions, shortages or 
unavailability of material or labor, any act of God, binding orders, actions or inactions of any court 
or governmental authority, legislative, executive, administrative, judicial agency or body, state or 
federal laws, regulations or ordinances, technological impossibility, changes in law or applicable 
regulations subsequent to the date hereof or any other similar or dissimilar cause beyond its 
reasonable control and not attributable to its neglect (each, a “Force Majeure Event”), upon the 
Developer providing written notice in reasonable detail to the City the requirement of completion 
of such Deferred Improvements shall be postponed by a period equal to the period of time such 
party’s performance under this Agreement is prevented or delayed by such Force Majeure Event.  
Notwithstanding the foregoing, no Developer act, undertaking, action or inaction shall constitute 
a Force Majeure Event. 
 
28. 
INDEMNIFICATION.  
 
a. 
Developer, or Developer’ successors and assigns, agrees to defend, 
indemnify and hold harmless City, its officers, officials and employees from and against claims, 
damages, losses and expenses of any nature whatsoever by any third-party (including but not 
limited to reasonable attorney fees, court costs, the costs of appellate proceedings, and all claim 
adjusting and handling expense) (collectively, “Claims”), relating to or arising out of Developer’s, 
its agents, officers, employees, officials, representatives or contractors or their successors’ and 
assigns’ negligence or intentional misconduct arising in connection with this Agreement; provided, 
however, the foregoing indemnity does not apply to any Claims to the extent caused by the City’s 
or City’s officers, officials, employees, agents, representatives or contractors negligence or 
intentional misconduct. The indemnity provisions of this Agreement shall survive the termination 
of this Agreement. 
 
b. 
The City agrees to defend, indemnify and hold harmless Developer, its 
directors, officers, employees, agents and representatives from and against any Claims relating to 
or arising out of any negligence or intentional misconduct by the City, its officers, agents, 
employee, officials, representatives or contractors arising out of or in connection with this 
Agreement provided, however, the foregoing indemnity does not apply to any Claims to the extent 
caused by Developer’s or Developers’ directors, officers or employees negligence or  intentional 
misconduct. The indemnity provisions of this Agreement shall survive the termination of this 
Agreement.

Development Agreement - CarMax 
February 7, 2023 
 
 
29. 
ISRAEL BOYCOTT AND FORCED LABOR OF ETHNIC UYGHURS. As 
applicable pursuant to Arizona Revised Statutes Title 35, Articles 9 and 10, Developer certifies 
that it is not currently engaged in, and agrees for the duration of the agreement to not engage in, a 
boycott of Israel.  Additionally, Developer agrees and certifies that it does not currently, and agrees 
for the duration of this Agreement that Developer will not, use: (1) the forced labor of ethnic 
Uyghurs in the People’s Republic of China; (2) any goods or services produced by the forced labor 
of ethnic Uyghurs in the People’s Republic of China; or (3) any contractors, subcontractors or 
suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic 
Uyghurs in the People’s Republic of China.  If Developer becomes aware during the term of the 
contract that it is not in compliance with this written certification, the company shall notify the 
City within five business days after becoming aware of the noncompliance.  If Developer does not 
provide the City with a written certification that Developer has remedied the noncompliance within 
180 days after notifying the City of the noncompliance, this Contract terminates, except that if the 
contract termination date occurs before the end of the remedy period, the Contract terminates on 
the Contract termination date. Developer also agrees to indemnify and hold harmless the City, its 
officials, employees, and agents from any claims or causes of action relating to the City’s action 
based upon reliance upon this representation, including the payment of all costs and attorney fees 
incurred by the City in defending such an action. 
 
 
[Signature pages follow]

Development Agreement - CarMax 
February 7, 2023 
 
IN WITNESS WHEREOF, the Mayor and Council of El Mirage, Arizona, by its Mayor 
and its Clerk, duly authorized, have affixed hereunto their hand and caused its official seal to be 
affixed on this ____________ day of _______________, 202_. 
 
 
CITY OF EL MIRAGE, an Arizona municipal 
corporation 
 
 
 
 
 
 
 
 
Alexis A. Hermosillo, Mayor 
 
STATE OF ARIZONA 
) 
 
 
 
 
) SS. 
COUNTY OF MARICOPA  ) 
 
 
The foregoing Development Agreement was acknowledged before me this _____ day of 
___________, 202_, before me by Alexis A. Hermosillo, Mayor of the City of El Mirage, an 
Arizona municipal corporation, and being authorized to do so, executed the foregoing instrument 
on behalf of the City for the purposes therein stated. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Notary Public 
 
My Commission Expires: ____________ 
 
 
ATTEST: 
 
 
 
 
 
 
 
Sharon Antes, City Clerk 
 
Dated:  
 
 
 
 
 
 
Approval as to Form 
 
 
By: 
 
 
 
 
 
Justin Pierce, City Attorney

Development Agreement - CarMax 
February 7, 2023 
 
DEVELOPER: 
 
CARMAX AUTO SUPERSTORES, INC. 
a Virginia corporation 
 
 
By:  
 
 
 
 
 
 
Name: K. Douglass Moyers 
 
 
  
Title: Vice President of Real Estate  
 
 
Commonwealth of Virginia 
 
 
 
 
 
City/County of _______________  
 
 
The foregoing Development Agreement was acknowledged before me this _____ day of 
_____________, 2023, by K. Douglass Moyers, the Vice President of CarMax Auto Superstores, 
Inc., a Virginia corporation, and who proved to me on the basis of satisfactory evidence to be the 
person whose name is subscribed to the and acknowledged to me that he being authorized to do 
so, executed the foregoing instrument for the purposes therein contained on behalf of CarMax 
Auto Superstores, Inc., a Virginia corporation.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Notary Public 
 
 
My Commission Expires: ____________ 
 
Registration No.: ___________________

Development Agreement - CarMax 
February 7, 2023 
 
 
 
EXHIBIT A 
Legal Description 
 
The land referred to herein below is situated in the County of Maricopa, State of Arizona, and is 
described as follows: 
 
Lots 3 and 13, of Replat of Lot 3 Centerpoint Logistic Park – P/D West and Minor Land 
Division – Northwest Corner of Dysart Road & Joe R. Ramirez Road, Record of Maricopa, 
according to the Plat of Record in the Office of the County Recorder of Maricopa County, 
Arizona, recorded in Book 1642 of Maps, Page 30. 
 
Lot 3 contains 2,022,278 square feet or 46.425 acres more or less. 
 
Lot 13 contains 447,639 square feet, or 10.276 acres more or less. 
 
Combined total area contains 2,469,917 square feet, or 56.701 acres more or less.