SILF Development Agreement

When recorded return to:
City Attorney

City of Glendale

5850 W. Glendale Avenue
Suite 450

Glendale, Arizona 85301

DEVELOPMENT AGREEMENT
STREETS IN-LIEU FEE: INDUSTRIAL
WEST GLENDALE SERVICE AREA

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

day of 2021, by and between the City of Glendale, an Arizona

municipal corporation (the “City”), and Cold Summit Phoenix 1 Joint Venture LLC

(“Developer”) and the City are sometimes referred to collectively in the Agreement as the
“Parties” or individually as a “Party”.

RECITALS

WHEREAS, Developer is a private developer that owns property generally located at 9600
N 151* Avenue within Glendale’s boundaries and specifically in the West Glendale Service Area
as related to Street Facilities; which property is legally described on Exhibit “A”; and illustrated
on site plan Exhibit “B”, and

WHEREAS, Arizona Revised Statutes (A.R.S.) § 9-463.05 provides a framework for cities
to assess, collect and administer development fees; and

WHEREAS, as required by law, the City retained the services of an outside consultant to
complete an update of the City’s development impact fees for compliance with the requirements of
ARS. § 9-463.05; and

WHEREAS, the report prepared by the outside firm of TischlerBise entitled Land Use
Assumptions, Infrastructure Improvements Plan and Development Fee Report, September 2019, did
not calculate a streets-related development impact fee for what the study called the West Glendale
Service Area due to the unknown nature of development and the associated transportation
infrastructure; and

WHEREAS, the report recommends the City may seek to enter into development agreements
with developers to collect payments to help cover the costs of street infrastructure improvements on
a case-by-case basis; and

WHEREAS, the City has determined that due to the extensive growth and rapid rate of
development applications in the West Glendale Service Area, it is necessary and appropriate to collect

an in-lieu fee, formally called the Streets In-Lieu Fee (“SILF”) to ensure this new growth pays its
proportionate share of street infrastructure improvements; and

WHEREAS, the City has determined that the $634 per 1,000 square feet of industrial building
fee currently utilized in the area known as the East Glendale Service Area in the TischlerBise study
is appropriate for the West Glendale Service Area (the “SILF Fee Rate”), and that the resulting
projected fee revenue and expenditures would be similar; and

WHEREAS, Developer will construct street improvements as depicted in Exhibit “C” (the
“Street Improvements”) that will serve Developer’s property as well as other properties in the West
Glendale Service Area; and

WHEREAS, in consideration of the public infrastructure to be built by Developer, the City
will credit the cost of one 12-foot lane of arterial roadway constructed against the in-lieu fee owed
by Developer provided that developer is constructing a minimum of 2.5 lanes of arterial street
improvements which constitutes the ultimate half-street improvements for the area; and

WHEREAS, no in-lieu fee credit will be given to Developer for street improvements that
are necessary and customarily required for Developer’s project to function in a safe and
satisfactory manner in regards to traffic; 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 and Developer agree as follows:

AGREEMENT

1, Incorporation of Recitals. The recitals above are incorporated and made a part of
this Agreement.

2. Arterial Street Improvements. The Developer will manage the construction of the
Streets as follows:

(a) Scope of Work. Developer will design, construct, or cause to be constructed, and
will dedicate to the City the street improvements and associated right-of-way listed and described in
Exhibit C to this Agreement, subject to the terms and conditions of this Agreement.

(b) Design, Bidding, Construction and Dedication. The Street Improvements will be
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.

(c)  Street_Improvement Construction Documents and Permits. Construction

documents for the Street Improvements shall be funded by the Developer and shall be prepared
under the direction of and approved by the City. The infrastructure plans shall be consistent with
all applicable ordinances, resolutions, regulations, guidelines, standards, adopted by the City that

are in effect when the permits for the Street Improvements are issued.

3. Streets In-Lieu Fee Credit. Developer understands and acknowledges that the
Street Improvements are 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 Street Improvements. Therefore, for and in consideration of the completion of the
Street Improvements to include 2.5 lanes of traffic for the adjacent half-street (5 lanes for full street)
and recognition of the benefits received by the City from the Street Improvements, the City will
credit the cost for one 12-foot lane of Street Improvements (two 12-foot lanes if full street is being
constructed) by and through a credit toward the SILF that would be charged and assessed upon
the industrial development project built by Developer. The SILF is calculated on the form
attached as Exhibit “D”. The City will apply such credit to the SILF that would be charged and
assessed upon the industrial development at the time Developer pulls permits to construct the
associated building(s). The credit is calculated on the form attached as Exhibit “E”. Such credits
will not exceed the SILF as calculated in Exhibit D, except in the case when the Developer is
constructing permanent Street Improvements adjacent to future phases of development. In this
case, if the SILF credit exceed the SILF calculated for the specific phase, then a credit may be
carried over and credited to the SILF associated with a future building. The SILF credit shall be
applied at the time permits are issued for the future building. If the Developer fails to pull permits
for a subsequent building(s) within 36 months of the Effective Date of this Agreement, the SILF
credit is forfeited.

4. Adjustment of Unit Fees and Prices; Most Favored Party. The City may evaluate

the Unit Fee on the SILF Calculation Form and the Unit Price on the SILF Credit Form and make
adjustments as the market dictates. Any adjustments causing the Unit Fee or Unit Price to deviate
more that 20% from the original numbers shall cause this Agreement to be presented to City
Council for approval. Further, if, within three (3) years of the date Developer pays the SILF, City
provides a reduction in SILF Fee Rate from the rate imposed on Developer, or if City otherwise
reduces the SILF as it may be applied to other developers of property in the City, the City shall
refund to Developer the difference in the amount of the SILF charged to Developer pursuant to
this Agreement and the amount that Developer would have been charged had Developer received
such a reduced SILF Fee Rate in the first instance.

5. Development Impact Fees. This Agreement is only for the purpose of establishing
and calculating an in-lieu fee related to streets. In addition to the SILF, Developer will pay all
development impact fees according to the Glendale City Council-approved Development Impact
Fee Schedule in existence at the time structures are permitted.

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

7. 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.

8. 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.

9. Assignment. Developer may not assign its 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, Developer has 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 Project Applicant; or (b)
any third-party purchaser acquiring all or any part of the respective properties. If any of the Parties
sell any of the real property associated with the Street 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.

10. 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 Developer:

With copy to:

Cold Summit Phoenix 1 Joint Venture, LLC

333 S. Main Street, Suite 204

Ketchum, Idaho 83340

Attn: Scott Pertel and Alex Langerman

Email: scott@coldsummit.com and alex@coldsummit.com

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

12. 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.

13. Conflicts. Developer acknowledges this Agreement is subject to A.R.S. § 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.

14. 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.

15. 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.

16. Severability. If any phrases, clause, sentence, paragraph, section, article or other
portion of this Agreement becomes 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.

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

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

19. 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.

20. 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

Developer

Name: Scott fener.

Its: Av7Hent2=Db Slav 4Teay
State of — racks )
County of Sloane )
This instrument was acknowledged before me on this g day of ue. 5 ; 2021, by

Scott Parlet” ~cle\. In witness whereof I hereunto set my hand and official
seal.

My commission expires: 0 7-O4- 2226

eo Ch. a Abe

Commission Number: 38061
State of Idaho otal ublic
My Commission Expires: 07/09/2026 t ry

EXHIBIT A
Legal Description of Development Property

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:

PARCEL NO. 1:

A PORTION OF LAND BEING A PART OF THE PROPERTY AS DESCRIBED IN THE
SPECIAL WARRANTY DEED AS RECORDED IN DOCUMENT NO. 2019-0236268 OF
OFFICIAL RECORDS AND RE-RECORDED AS 2019-0323051 OF OFFICIAL RECORDS,
RECORDS OF MARICOPA COUNTY, ARIZONA, BEING SITUATED WITHIN THE EAST
HALF OF SECTION 29, TOWNSHIP 3 NORTH, RANGE 1 WEST OF THE GILA AND
SALT RIVER MERIDIAN, MARICOPA COUNTY, ARIZONA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT A FOUND 2 INCH MARICOPA COUNTY ALUMINUM CAP FLUSH
ACCEPTED AS THE NORTH QUARTER CORNER OF SAID SECTION 29, FROM WHICH
A FOUND 3 INCH MARICOPA COUNTY BRASS CAP IN POT HOLE ACCEPTED AS THE
NORTHEAST CORNER THEREOF BEARS SOUTH 88°52'10" EAST, 2636.01 FEET;

THENCE SOUTH 88°52'10" EAST, 1318.00 FEET ALONG THE NORTH LINE OF THE
NORTHEAST QUARTER OF SAID SECTION 29, TO THE EAST LINE OF THE WEST
HALF THEREOF;

THENCE SOUTH 00°03'08" EAST, 2486.36 FEET ALONG SAID EAST LINE;

THENCE SOUTH 89°56'52" WEST, 57.00 FEET TO THE WEST LINE OF THE EAST 57.00
FEET OF SAID THE WEST HALF OF SAID NORTHEAST QUARTER, AND ALSO BEING
THE POINT OF BEGINNING;

THENCE SOUTH 00°03'08" EAST, 1350.29 FEET ALONG SAID WEST LINE AND THE
SOUTHERLY EXTENSION THEREOF;

THENCE LEAVING SAID WEST LINE, SOUTH 45°32'25" WEST, 41.99 FEET TO THE
EASTERLY EXTENSION OF THE NORTH LINE OF THE 70.00 FEET RIGHT OF WAY OF
HATCHER ROAD AS RECORDED IN BOOK 1529, PAGE 48 RECORDS OF MARICOPA
COUNTY, ARIZONA;

THENCE NORTH 88°52'02" WEST, 955.21 FEET ALONG SAID NORTH LINE TO THE
EASTERLY LINE OF THE RAIL WAY RIGHT OF WAY AS RECORDED IN DOCUMENT
2019-0293348, RECORDS OF MARICOPA COUNTY, ARIZONA;

THENCE NORTH 00°03'08" WEST, 1359.91 FEET ALONG SAID EASTERLY LINE;

THENCE LEAVING SAID EASTERLY LINE, NORTH 89°56'52" EAST, 985.00 FEET TO
THE POINT OF BEGINNING.

CEL NO. 2:

NON-EXCLUSIVE EASEMENTS AS SET FORTH IN TEMPORARY NON-EXCLUSIVE
EASEMENT FOR CONSTRUCTION ACCESS RECORDED APRIL 16, 2021 AS
2021-428968, OF OFFICIAL RECORDS.

EXHIBIT A, Legal Description — Solo Page
49265-852 / Cold Summit (Phoenix, AZ)

EXHIBIT B
Depiction of Property

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EXHIBIT C
Street Improvements

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EXHIBIT D
Street In-Lieu Fee Calculation Form
(industrial)

SILF CALCULATION FORM

STREETS IN LIEU FEE (SILF)

CALCULATION FOR INDUSTRIAL DEVELOPMENTS

WEST GLENDALE SERVICE AREA

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Glendale

ARIZONA

Project Name:

Cold Summit Phoenix

Owner’s Name:

Cold Summit Phoenix 1 Joint Venture LLC

APN#: 501-42-007G
Address: 9600 N 151st Avenue
Development Services Project #: 210382

Building Square Footage’: 345,916

Unit Fee $634/1000 square feet of industrial building
Amount of SILF Credit if applicable $0.00

Carryover Credit from Previous

Phase?

(please note date and contract # of

credit) $0.00

Total SILF Credit

(add 2 lines above) $0.00

‘Square footage should only apply to buildings currently being permitted. Buildings in future phases will require a new

agreement and SILF calculation.

*If more than 36 months has passed since Effective Date of Agreement authorizing credit, then Carryover Credit is no

longer valid.
SILF Calculation
345,916 X  $634/1000 SF =
Industrial Building Square
Footage
SILF to be paid by applicant:
$219,310.74 . $0.00 =
SILF Total SILF Credit

$219,310.74

SILF

$219,310.74

SILF Owed

ASS ee

cr
Cy
Glendale

AkR'Z G tha
If SILF Owed is a negative number then the applicant DOES NOT owe SILF for this phase of

development. If the developer will construct additional buildings in a future phase, then enter the
amount below:

Carryover Credit = $0.00

Prepared by:

Dy Sa he 08/09/2024
Building Official or designee Date

Approved by:

Lk Gveray 08/09/202/

Transportation Direcfor ~ Date

Approved by:

City Manager or designee Date

EXHIBIT E
Street In-Lieu Fee Credit Form
(industrial)

SILF CREDIT FORM G

STREETS IN LIEU FEE (SILF) w& |
CREDIT FOR INDUSTRIAL DEVELOPMENTS

Project Name: Cold Summit Phoenix

Owner’s Name: Cold Summit Phoenix 1 Joint Venture LLC
APN#: 501-42-007G

Address: 9600 N 151st Avenue

Development Services Project #: | 210382

Arterial Street Frontage’: 0.00

Unit Price of Credit $95/linear foot of arterial roadway constructed

‘Developer must construct 2.5 lanes for half-street or 5 lanes for full street, if full street then multiply frontage by 2, credit
must correspond to associated right-of-way permits.

SILF Credit Calculation
No Arterial Street x $95/LF = $0.00
Length of Arterial Street F
Gonstmucred SILF Credit
Prepared by:
eag Jl. 08/09/2021

City Traffic Engineer Date
Approved by:

OK Devers 08/69 /202/
Transportation Dire¢tor Date —
Approved by:
City Manager or designee Date

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