Public In-Lieu Payment Agreement - Barclay Executed.pdf

PUBLIC IMPROVEMENTS
IN-LIEU PAYMENT AGREEMENT

This In-Lieu Payment Agreement (the “Agreement”), effective as of this 17" day of June,
2025 (the “Effective Date”), is entered into by and between the City of Buckeye, an Arizona
municipal corporation (“City”), and Barclay Holdings CXVI, LLC, an Arizona limited liability
company (“Owner”). The City or the Owner may each be referred to herein as a “Party” or
collectively as the “Parties.”

1. Background. The following is the background to this Agreement:

A. Owner is the owner of certain real property generally located at the southeast corner
of S. Miller Road and W. Broadway Road in the City of Buckeye, consisting of approximately
5.37 acres, and which real property is legally described on the attached Exhibit A (the
“Property”), incorporated by this express reference.

B. As part of Owner’s development of the Property, Owner is responsible to construct,
at no cost to the City, the public infrastructure and improvements necessary for development of
the Property, including, but not limited to, Owner’s portion of the City-required off-site median
and landscape improvements adjacent to the Property along both S. Miller Road and W. Broadway
Road (“Offsite Improvements”).

Cc. As S. Miller Road and W. Broadway Road are not built out to their ultimate
condition, installation of the median and landscaping improvements prior to the full build-out of
the roadways would result in damage and removal of the improvements. Owner has requested,
and the City has agreed, that rather than Owner immediately constructing the Off-Site
Improvements, Owner may make an In-Lieu Payment to the City. The City shall retain such funds
until such time as the funds are applied by the City to the costs of construction at the time the City
constructs, or causes to be constructed, the Off-Site Improvements.

D. Owner has obtained an itemized estimate for the cost of the Off-Site Improvements
that has been approved by the City.

E. The In-Lieu payment will be a single lump sum payment to the City of the estimated
costs of constructing the Off-Site Improvements.

F. The City is willing to accept the lump sum as an In-Lieu payment as full satisfaction
of the Owner’s obligation to construct the required Improvements.

2. Agreement. For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the City and Owner agree as is more specifically set forth in this
Agreement.

3. Estimated Costs of the Off-Site Improvements. The total estimated cost of the Off-Site
Improvements is Five Hundred Thirty Two Thousand, One Hundred Sixty Nine Dollars and

50/100 ($532,169.50), of which the Owner’s responsibility totals Two Hundred Sixty-Six
Thousand, Eighty-Four Dollars and 75/100 ($266,084.75) (the “In-Lieu Payment”), which sum
is acceptable to both Parties. The In-Lieu Payment has been approved by the City Engineer or
Designee, and is based upon the itemized estimates attached as Exhibit B. The In-Lieu Payment
shall be paid to the City by Owner or its successor(s) or assign(s) no later than thirty (30) days
following the date of City execution of this Agreement.

4. Owner’s Obligation to Construct. Execution of this Agreement by both Parties and timely
payment in full of the In-Lieu Payment pursuant to this Agreement shall constitute full
satisfaction of the Owner’s obligation to construct the Off-Site Improvements.

5. Citv Use of Funds. The In-Lieu Payment received by the City shall be placed in a separate
fund and accounted for separately and shall only be used by the City for the purpose of
completing off-site improvements at a future date as determined by the City. If the costs of
completing the Off-Site Improvements is greater than the amount of the In-Lieu Payment, Owner
shall not have any obligations with respect to such excess costs.

6. Conflicts of Interest. The Parties acknowledge that this Agreement is subject to cancellation
pursuant to A.R.S. § 38-511, as amended.

7. Severability. If any provision of this Agreement is declared void or unenforceable by a court
of competent jurisdiction, such provision shall be severed from this Agreement, which shall
otherwise remain in full force and effect if the remaining provisions permit the Parties to achieve
the practical and proportional benefits and obligations of the arrangements contemplated by this
Agreement. Otherwise, either Party may terminate this Agreement.

8. No Agency or Partnership. Neither the City nor Owner is acting as the agent of the other
with respect to this Agreement, and this Agreement shall not be deemed to create a partnership,
joint venture or other business relationship between the City and Owner.

9. No Third-Party Beneficiary. This Agreement shall not create any third-party beneficiary
rights to any person or entity who is not a party to this Agreement, including any lender to the
Owner.

10. Construction. The provisions and exhibits of this Agreement shall be construed as a whole
consistent with their plain meaning and intent, and they shall not be construed against one party
or the other based upon which party prepared or influenced the drafting of any provision or
exhibit of this Agreement.

11. Time of Essence and Merger. Time is of the essence of this Agreement. This Agreement
constitutes the entire agreement between the Parties hereto pertaining to the subject matters of
this Agreement and the In-Lieu Payment. All prior contemporaneous agreements,
representations and understandings of the parties, oral or written, are hereby superseded and
merged herein, and this Agreement constitutes full satisfaction of all claims and liabilities that

exist, whether known or unknown, on or before the effective date of this Agreement, between the
Parties.

12. Benefit and Binding Effect. This Agreement shall be for the benefit of and binding upon
the Parties hereto and their successors and assigns.

13. Counterparts; Entire Agreement. This Agreement, which may be executed in
counterpart, shall constitute the entire agreement between the Parties regarding the subject of this
Agreement. This Agreement will constitute the entire agreement between the Parties, and
supersedes all previous written or oral agreements or understandings regarding the subject matter
of this Agreement. Owner knowingly and voluntarily forever releases and discharges the City
and all of its past and present elected officials, officers, directors, agents, employees, successors,
assigns, attorneys, and representatives from all legal and equitable claims, causes of action,
debts, accounts, and damages, known or unknown, asserted or unasserted, and of every nature
and extent whatsoever, that the Owner has against the City, and arising from actions, omissions,
delays or other events that occurred prior to the date of this Agreement.

14. Section Titles. The section titles in this Agreement are not part of this Agreement and are
for convenience only.

15. Notices. All notices, requests, waivers, approvals, acceptances or other communications
under this Agreement shall be in writing and shall be deemed given when personally delivered or
three days after mailing by certified mail, return receipt requested and postage prepaid, to the
addresses set forth below:

(a) City City Manager
City of Buckeye
530 East Monroe Avenue
Buckeye, Arizona 85326

With a copy to: K. Scott McCoy, City Attorney
City of Buckeye
530 East Monroe Avenue
Buckeye, Arizona 85326

(b) Owner Scott Archer, Manager
Barclay Holdings CX VI, LLC
2415 East Camelback Road, Ste. 900
Phoenix, Arizona 85016

No notice to a Party shall be effective unless and until a copy of such notice is given to, or as
appropriate, received by, all persons indicated above as entitled to receive required copies of
notices to that party. The above-described recipients of notices may change their address for
notice purposes by giving the other parties notice of such change, provided, however, that no

such change in notice shall be effective for a period of ten (10) days following such notice of
such change.

16. Governing Law. This Agreement shall be governed by and construed under the laws of the
state of Arizona, and any litigation shall take place only in Maricopa County, Arizona.

17. Amendment. Any amendment to this Agreement shall be in writing and signed by both
Parties.

18. Attorneys’ Fees, The prevailing party in any litigation in connection with this Agreement
shall be entitled to its attorneys’ fees and costs.

19. Indemnity. Owner (and/or its successors or assigns) shall indemnify, defend and hold
harmless the City and each council member, officer, official, employee or agent thereof (the City
and any such person being herein called an “Indemnified Party”), for, from and against any and
all losses, claims, damages, liabilities, costs and expenses (including reasonable attorneys’ fees)
to which any such Indemnified Party may become subject, at law or in equity or otherwise
(“Claims”), insofar as such Claims (or actions in respect thereof) arise out of or are based upon
any provisions of this Agreement, except for those Claims which have been adjudicated to be
caused by the City’s gross negligence or intentional misconduct.

20. Waiver of Claims, The Owner, on behalf of itself and all other parties having an interest in
the Property, agrees and consents to this Agreement, and, by signing this Agreement waives any
and all claims, suits, damages, compensation and causes of action for diminution in value of the
Property the Owner may have now or in the future under the provisions of Ariz. Rev. Stat. §§ 12-
1134 through and including 12-1138 resulting from this Agreement or from any “land use law”
(as such term is defined in the aforementioned statute sections) expressly permitted or
contemplated by this Agreement to be enacted, adopted or applied by the City now or hereafter.
The terms of this waiver shall run with the land and is intended to survive and be in effect
beyond the date that Owner pays the In Lieu Payment.

21. Representations and Warranties. As of the date of the execution of this Agreement,
Owner represents and warrants that (i) it is a corporation or limited liability company, duly
formed and in good standing in its State of incorporation or formation and duly qualified to do
business in Arizona; (ii) Owner has the authority, including the person signing for Owner, and
the right to enter into this Agreement as authorized by the board of directors or members of the
Owner at duly noticed meetings at which quorums were present; (iii) Owner is not prohibited
from executing this Agreement by any law, rule, regulation, instrument, agreement, order or
judgment; (iv) Owner has not relied on any representations or warranties of the City other than
those expressly set forth in this Agreement; (vi) to the extent applicable under A.R.S. § 35-394,
Owner certifies that it does not, and will not for the duration of this Agreement, use the forced
labor, any goods or services produced by the forced labor, or any contractors, subcontractors, or
supplier 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; and (vii) to the extent applicable under A.R.S. § 35-

393.01, Owner certifies that it does not participate in, and agrees not to participate in, a boycott
of Israel.

22. Signatures. The signatures appear on the following pages.

CITY OF BUCKEYE, ARIZONA

an Arizona municipal corporation

By

David B. Roderique, Interim City Manager

ATTEST:

Lucinda J. Aja, City Clerk

APPROVED AS TO FORM:

K. Scott McCoy, City Attorney

STATE OF ARIZONA
COUNTY OF MARICOPA

On this day of , 2025, before me personally appeared David B.
Roderique, Interim City Manager of the City of Buckeye, whose identity was proven to me on the
basis of satisfactory evidence to be the person who he claims to be, and acknowledged that he
signed this Agreement on behalf of the City.

I certify under PENALTY OF PERJURY under the laws of the State of Arizona that the
foregoing paragraph is true and correct.

(Seal and Expiration Date)

Notary Public in and for the State of Arizona

OWNER:
BARCLAY HOLDINGS CXVI, LLC, an Arizona
limited liability com:

STATE OF ARIZONA
COUNTY OF MARICOPA

On this 271" day of Mon : 2025, before me personally appeared Scott T.
Archer, the manager of Barclay Holdings CXVI, LLC, an Arizona limited liability company,
whose identity was proven to me on the basis of satisfactory evidence to be the person whom he
claims to be, and acknowledged that he signed this Agreement on behalf of Barclay Holdings
CXVI, LLC.

I certify under PENALTY OF PERJURY under the laws of the State of Arizona
that the foregoing paragraph is true and correct.

(Seal and Expiration Date)

Kare OM leon

Notary Public in and for the State of Arizona

a KAROL D NELSON
ie) NOTARY PUBLIC - ARIZONA

EXHIBIT A
[Legal Description of the Property]
Lots 2 through 5, inclusive, of RE-PLAT OF HERITAGE WEST COMMERCIAL, according to

the plat of record in the office of the County Recorder of Maricopa County, Arizona, recorded in
Book 1840 of Maps, Page 48.

EXHIBIT B
[In-Lieu Payment Itemized Estimate]

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