Development Agreement

When recorded return to:
City Attorney

City of Glendale

5850 W. Glendale Avenue
Suite 450

Glendale, Arizona 85301

DEVELOPMENT AGREEMENT - 615' AVENUE SEWER EXTENSION

This Development Agreement (the “Agreement”) is made and entered into as of this

L@** day of _waecr 2021, by and between the City of Glendale, an Arizona

municipal corporation (the “City”), Newmark Homes, LLC, an Arizona limited liability company

(“Newmark”), and Beau Monde, LLC, an Arizona limited liability company (“Beau Monde”).

Newmark, Beau Monde and the City are sometimes referred to collectively in the Agreement as
the “Parties” or individually as a “Party”.

RECITALS

WHEREAS, Newmark and Beau Monde are private developers that separately own
properties generally located on 61“ Avenue north of Bell Road within Glendale’s boundaries. The
Parties have constructed a sewer line as depicted in Exhibit “A” that will serve Newmark and
Beau Monde’s properties, both of which are residential in nature, and will tap into the City’s sewer
main underneath Bell Road and extend a sewer line north underneath 61° Avenue (the
“Sewerline”); and

WHEREAS, Newmark and Beau Monde wish to memorialize their cost-sharing
arrangement following the design and construction of the Sewerline; and

WHEREAS, in consideration of the public infrastructure built by Newmark and Beau
Monde, the City will credit the cost of the Sewerline against the development impact fees owed
by Newmark and Beau Monde; and

WHEREAS, in order to accomplish all these goals, the Parties wish to enter into this
Agreement.

NOW, THEREFORE, in consideration of the following mutual covenants and conditions,
the City, Newmark and Beau Monde agree as follows:

AGREEMENT

1. Sewerline. The Parties have and will handle the construction of the Sewerline as
follows:

(a) Scope of Work. Pursuant to A.R.S. § 34-201.L, as a condition of development
of the Property and as authorized by A.R.S. § 9-463.01, the Developer at its cost has designed,
constructed or caused to be constructed, and will dedicate to the City (following the City’s testing
and acceptance of the Sewerline, all of which is in the City’s sole discretion) the Sewerline listed
and described in Exhibit A to this Agreement, subject to the terms and conditions of this Agreement.
The cost of completion of the Sewerline is described in Exhibit B to this Agreement.

(b) Design, Bidding. Construction and Dedication. The Sewerline was designed, bid,
constructed and will be dedicated in accordance with applicable laws, including without limitation
all laws, rules, ordinances and standards of the City, as well as state and federal laws. The
construction documents and bid proposal for the Sewerline are attached to this Agreement as
Exhibit C and Exhibit D, respectively.

(c) Sewerline Construction Documents and Permits. Construction documents for the
Sewerline were submitted to the City by Newmark, and the City approved such documents. The
documents were also submitted to and approved by the Maricopa County Environmental Services
Department. The City approved permits related to the construction of the Sewerline.

2. Sewerline Reimbursement. Newmark and Beau Monde understand and
acknowledge that the Sewerline is not currently included in any existing capital improvement
plans (“CIP”) and the City has no plans and no financial means to undertake the actions
necessary to complete the Sewerline. Therefore, for and in consideration of the completion of
the Sewerline and recognition of the benefits received by the City from the Sewerline, the City will
reimburse the actual costs for the Sewerline by and through credits toward all Sewer Development
Impact Fees (“SDIFs”) that would be charged and assessed upon the housing projects built by
Newmark and Beau Monde. The City will apply such credits to the SDIFs that would be charged
and assessed upon the housing projects at the time Newmark and Beau Monde pull permits for
the water meters for their respective lots. The SDIFs are based on the water meter size (the SDIF
associated with a three-quarter inch meter is currently $1,609 and a one-inch meter is $2,684),
and Newmark and Beau Monde will receive credits for their costs incurred related to the
Sewerline. Such credits will in no event exceed the total costs incurred related to the Sewerline,
and the total costs and anticipated credits are detailed in Exhibit B. The City’s current
Community Development Fee Schedule, which became effective May 10, 2019, is attached
in relevant part as Exhibit E.

3. Developer Cost Allocation. | Upon execution of this agreement, Beau Monde,
LLC will deliver a check to Newmark Homes, LLC for the entire amount of $97,953.61.

4. Incorporation of Exhibits. All exhibits attached and referred to in this Agreement
are incorporated and made a part of this Agreement.

5. Amendment of the Agreement. This Agreement may be amended or canceled, in
whole or in part, only by a written agreement or amendment fully executed by the Parties.

6. No Third-Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the Parties. Nothing contained in this Agreement shall be construed
to make any non-party to this Agreement a third-party beneficiary of this Agreement.

7. Assignment. Newmark and Beau Monde may not assign their rights and/or
obligations under this Agreement (jointly or severally) without the prior written consent of the
City, which consent shall not be unreasonably withheld. Notwithstanding this provision,
Newmark and Beau Monde have the right to assign and/or transfer their rights and obligations
under this Agreement to (a) any business entity, company or affiliate that is directly or indirectly
owned or controlled by Newmark or Beau Monde, respectively; or (b) any third-party purchaser
acquiring all or any part of the respective properties. In the event any of the Parties sell any of the
real property associated with the Sewerline or other improvements covered under this Agreement
to a third party, the selling Party will ensure that the obligations of this Agreement are fulfilled,
either by the selling Party or the third-party purchaser, if necessary.

8. Notices. Any notices required or permitted to be given pursuant to this Agreement
may be delivered in person or mailed, certified mail, return receipt requested to the following
addresses:

To City:

City of Glendale

Attention: City Manager
5850 West Glendale Avenue
Glendale, Arizona 85301

With copy to:

City of Glendale

Attention: City Attorney
5850 West Glendale Avenue
Glendale, Arizona 85301

To Newmark:
Newmark Homes, LLC
7725 E. Evans Road
Scottsdale, AZ 85260

To Beau Monde:

Beau Monde, LLC
4224 N Craftsman Ct
Scottsdale, AZ 85251

With copy to:

Desert Sol Construction, LLC
22404 N 98" Ave

Peoria, AZ 85383

9. Governing Law. This Agreement is governed by the laws of the State of Arizona.

10. Venue. Any action arising from this Agreement, which includes by way of
example, but not limitation, any action to enforce or interpret any provision of this Agreement,
shall be commenced and maintained in a court of competent jurisdiction located within Maricopa
County, Arizona, and the Parties irrevocably waive any right to object to such venue.

11. Conflicts. Newmark and Beau Monde acknowledge this Agreement is subject to
A.RS. § 38-511, which allows for cancellation of this Agreement in the event any person who is
significantly involved in initiating, negotiating, securing, drafting or creating the Agreement on
the City’s behalf is also an employee, agent or consultant of any other Party to this Agreement.

12. Cooperation and Alternative Dispute Resolution.

(a) Representatives. To further the cooperation of the Parties in implementing
this Agreement, each Party will designate and appoint a representative to act as a liaison
between the City and its various departments and the other Parties. The representatives of
each Party will be available at all reasonable times to discuss and review the performance
of the Parties to this Agreement and the development of the Property.

(b) Impasse. The City acknowledges and agrees that it is desirable for the
Parties to proceed rapidly with the implementation of this Agreement and the development
of the Property. Accordingly, the Parties agree that if at any time any Party believes an
impasse has been reached with the City staff on any issue, that Party has the right to
immediately appeal to the City’s representative for an expedited decision pursuant to this
Section. If the issue on which an impasse is reached is an issue where a final decision can
be reached by the City staff, the City Representative shall give the appealing Party a final
administrative decision within seven (7) days after the Party’s request for an expedited
decision.

(c) Mediation. If there is a dispute hereunder which the Parties cannot resolve
between, the Parties agree that there shall be a ninety (90) 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 (“AAA”) 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 the City and the
involved Parties. The matter in dispute shall be submitted to a mediator mutually selected
by the involved Party/Parties and the City. If the Party/Parties cannot agree upon the
selection of a mediator within ten (10) days, then within five (5) days thereafter, the Parties
shall request that the Presiding Judge of the Superior Court in and for the County of
Maricopa, 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 the City and
the involved Parties. 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)
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.

13. Miscellaneous. This Agreement shall be interpreted, applied, and enforced
according to the fair meaning of its terms and shall not be construed strictly in favor of or against
either Party, as both Parties have been involved in the drafting of its provisions. This Agreement
constitutes the entire agreement of the Parties concerning the matters contained herein and
supersedes all prior negotiations, understandings, and agreements concerning such matters. No
provision of this Agreement may be waived or modifies except by an amendment signed by the
Party against whom such modification or waiver is sought.

14. | Severability. In the event that any phrases, 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, void or
against public policy, the remaining portions of this Agreement shall not be affected thereby and
shall remain in full force and effect to the fullest extent permissible by law.

15. Cooperation and Further Acts. The Parties shall act reasonably with respect to any
and all matters which require either party to review, consent or approve any act or matter herein.

16. Counterparts. This Agreement may be executed in counterparts, and all
counterparts will together comprise one instrument.

17. Term. The term of this Agreement shall commence upon the date the last Party
signs this Agreement and shall end at the earlier of (a) three (3) years from the Effective Date; or
(b) the date the Agreement is terminated in a writing signed by the Parties or by an order of a court
of competent jurisdiction.

18. Lender Consent. No Party shall encumber or take any action to cause its respective
property to be encumbered with a lien or encumbrance superior or prior to the terms, covenants

and provisions of this Agreement. If, at the present, or at any other time or times, all or any part
of the respective properties of the Parties is or becomes encumbered by a lien or encumbrance
superior or prior to the terms, covenants and provisions of this Agreement, then such Party, its
successors or assigns, shall either obtain an appropriate consent and subordination from the
lienholder or take such action as may be necessary to remove and discharge such prior lien or
encumbrance. Without limiting the generality of the foregoing, each Party shall timely pay any
and all real property taxes and assessments levied against or allocable to its respective property.

[SIGNATURES ON FOLLOWING PAGE]

IN WITNESS HEREOF, the Parties have caused this Agreement to be duly executed as
follows:

CITY OF GLENDALE, ARIZONA,

an Arizona municipal corporation,

Kevin Phelps
City Manager

ATTEST:

Julie Bower, City Clerk (SEAL)

APPROVED AS TO FORM:

Michael Bailey, City Attorney

State of Aci Za )
County of Mari tap a )

Newmark Homes, LLC

By:

Name:

Its:

By:

Name:

Its:

This instrument was acknowledged before me on this day of _/Y lace. b, , 2021, by

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seal.

LINDA IDA S JONAS
Notary Public, State of Arizona)
Maricopa County
Commission # 578422
My Commission Expires
March 22, 2024

. In witness whereof I hereunto set my hand and official

dx olaend Gomns?

Notary Public

My commission expires: Marth Ad 20a ¢

Beau Monde, L \ -

xane or v aid ZL -

By:
Name:
Its:
By:
Name:
Its:
State of p )
County of )
a instr oe wlten acknowledged before me on this 1a day of fyeh- , 2021, by
nt’ . In witness whereof | hereunto set my hand and official
hh

KELLY K SHACKELFORD
Notary Public - Arizona

Maricopa County
My Comm. Expires Aug 13,2021

My commission expires:

5/8 [202

Attachments:

Attachment “A” — Sewerline Exhibit

Attachment “B” — Cost Allocation

Attachment “C” — Approved Construction Documents
Attachment “D” — Construction Cost Proposal

Attachment “E” — City of Glendale Plan Review and Permit Fee (Community Development Fee
Schedule)

ATTACHMENT A

Sewerline Exhibit

ATTACHMENT “A”

SEWERLINE EXHIBIT

ATTACHMENT B

Cost Allocation

ATTACHMENT B
COST ALLOCATION FOR 61°" AVENUE SEWER EXTENSION

Description Quantity Unit Unit Price Total
Installation of sewer line 1 Lump Sum $153,552.00 | $153,552.00
Pavement 1 Lump Sum $55,429.00 $55,429.00
Removal/Replacement

Construction Subtotal | $208,981.00

% of
Design of Sewer Line? 1 Construction 10% $20,898.10

Cost
Design Subtotal $29,898.10
Plan Review Fees | 3 | Sheet | $358.88 $1076.64
Plan Review Fee Subtotal $1076.64

Paving Permit?

Paving 552 SY $0.51 $281.52

Manhole Adjustment 4 Each $57.00 $228.00
Sewer Permit?

Trench 1097 LF $0.99 $1086.03
Wet Tap 1 Each $443.60 $443.60
Manholes 4 Each $57.00 $228.00
Permit Subtotal $2267.15

TOTAL COST | $233,222.89

COST ALLOCATION BETWEEN HARTFORD COURT AND WINDSOR COURT

Entity # of Lots % of Lots Cost as % of Lots

Hartford Court 33 58% $135,269.28
Windsor Court 24 42% $97,953.61

POTENITAL SEWER DEVELOPMENT IMPACT FEE CREDIT
. %” Meter 1” Meter
Entity # of Lots Credit? Total Credit? Total
Hartford Court 33 $1609 $53,097 $2684 $88,572
Windsor Court 24 $1609 $38,616 $2684 $64,416
Notes:

1. The design of the sewer extension was not separated out from the design of Hartford Court
subdivision. It is customary to use 10% of construction cost for an estimate of design services.

2. No permit base fee is included because the subject improvements were included in the Hartford
Court permits which included both onsite improvements and the subject offsite sewer
improvements. Hartford Court would have had to pay the base fee for the onsite improvements
regardless of the offsites, so no additional cost is included here.

3. Sewer impact fee amount is based on the size of the water meter installed.

ATTACHMENT C

Approved Construction Documents

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