Agreement

When recorded, please return to:

City Clerk

City of Glendale

5850 West Glendale Avenue
Glendale, Arizona 85301

LIFT STATION CONSTRUCTION AND REIMBURSEMENT AGREEMENT

This LIFT STATION CONSTRUCTION AND REIMBURSEMENT AGREEMENT (this “Agreement”)
by and between BYPG HOLDINGS, LLC, an Arizona limited liability company (“BYPG”), and the CITY OF
GLENDALE, an Arizona municipal corporation (the “City”) is executed as of this day of , 2023
(the “Effective Date”).

RECITALS

A. The City has determined that an extension of its sanitary sewer system requires an additional
infrastructure improvement, a lift station, to efficiently serve certain parcels of real estate (individually, a “Benefitted
Parcel,” and collectively, the “Benefitted Parcels”) adjacent to North Ball Park Boulevard, generally west of 99"
Avenue. The properties to be served are designated in the aggregate on the site map (the “Site Map”) set forth on
Exhibit A attached hereto.

B. A lift station is essential for the movement of wastewater and sewage from the Benefited Parcels,
will protect human health and the environment and will facilitate the development of the Benefitted Parcels. The Lift
Station will be constructed and sized to have sufficient capacity to serve the Benefitted Parcels and will require site
grading and preparation, construction of a building to house equipment, pumps, sewer lines and connections, and
paving and landscaping. These tasks and equipment will hereinafter be referred to collectively as “the Lift Station.”

Cc. On January 15, 2021, the City and BYPG entered into a Real Property Transfer Agreement P21-
002 (“Prior Agreement”), that required BYPG to pay for construction of the Lift Station on a parcel designated on
the Prior Agreement’s Site Map (the “Lift Station Parcel”). BYPG has already deeded that parcel to the City. The
City holds, and will continue to hold, fee title to all of the Lift Station Parcel.

D. Subject to the terms and conditions of the Prior Agreement and this Agreement, BYPG will pay all
the costs associated with constructing the Lift Station and the City will cooperate in good faith with BYPG to assist it
in obtaining reimbursement from the owners and/or developers of Benefited Parcels not owned by BYPG or any entity
that controls, is controlled by, or is under common contro] with BYPG.

E. BYPG will fund the entire costs for the design, engineering and construction of the Lift Station, and
seek reimbursement from each Developing Owner (as such term is defined in Section 3 hereof) as provided in this
Agreement.

F. The City is entering into this Agreement pursuant to Section 9-500.05(g) of the Arizona Revised
Statutes, as its conditions, terms, restrictions and requirements provide for the financing of public infrastructure and
reimbursement for costs incurred related to this project.

AGREEMENT

NOW, THEREFORE, for and in consideration of the premises and mutual covenants and agreement
contained herein, the payment to the City of Ten and No/100 Dollars ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, BYPG and the City hereby covenant and
agree as follows:

1. Incorporation of Recitals. The Recitals set forth above are hereby incorporated into this Agreement
and are hereby made a part hereof, as if fully set forth herein.

2. Design, Engineering, Construction. Acceptance and Maintenance of Lift Station.

(a) Design and Engineering of Lift Station. The City has retained Primatech in accordance with Title

34 of the Arizona Revised Statutes to design and engineer the Lift Station. Primatech has undertaken the design of the
Lift Station (based on specifications for the Lift Station provided by the City, which were acceptable to BYPG), and
has completed certain plans and drawings, dated January 6, 2023 (“Current Plans”) for the construction of the Lift
Station. If and to the extent necessary, Primatech will revise the Current Plans in order that they will constitute final
construction plans and drawings as may be necessary to fully and completely construct the Lift Station. Such design
and construction plans, either the Current Plans, or the Current Plans as revised in accordance with the foregoing
(collectively, the “Lift Station Plans”), shall be subject to the approval of the City, the City Engineer and any other
appropriate City official in accordance with the City’s applicable ordinances, codes, rules and regulations. Within 15
business days of the City’s approval of the Lift Station Plans, the City will deliver the same to BYPG. The City will
also deliver a final invoice to BYPG for all fees, costs and expenses incurred by the City for the preparation and review
of Primatech’s Lift Station Plans (the “Lift Station Design Costs”). BYPG will reimburse the City for all such costs
City within 30 days after the delivery of such invoice and any supporting documentation.

(b) Construction of Lift Station. As promptly as practicable (using reasonable diligence) after the City’s
delivery of the Lift Station Plans to BYPG under Section 2(a) hereof, BYPG will select and enter into a construction
contract in accordance with Title 34 of the Arizona Revised Statutes (the “Construction Contract”) with a general
contractor (the “Contractor”) registered with the Arizona Registrar of Contractors, for the construction of the Lift
Station. BYPG, at its sole cost and expense (but subject to reimbursement as provided in this Agreement), will use
commercially reasonable efforts to cause the Lift Station to be constructed and completed in substantial accordance
with the Lift Station Plans (including, without limitation, in the location set forth therein). The costs and expenses that
BYPG incurs in order to achieve such construction and completion of the Lift Station, including, without limitation,
all costs and expenses that BYPG incurs under the Construction Contract, are herein collectively called the “Lift
Station Construction Costs.”

(c) Acceptance and Maintenance of Lift Station. Upon commissioning and final acceptance of the Lift
Station and BYPG’s delivery to the City of a two-year contractor warranty and such mechanics’ claim and lien releases
and waivers with respect thereto that the City may reasonably require, the City will accept ownership of the Lift
Station and will at all times thereafter, operate, maintain, repair and replace the Lift Station at the City’s sole cost and
expense. Further, the City will maintain ownership of the Lift Station Parcel, together with the Lift Station and all
other improvements constructed thereon from time to time, except for such remnant portion of the Lift Station Parcel
that may be deeded back to BYPG as provided in the Prior Agreement.

3. Reimbursement of Lift Station Construction Costs.

(a) Subject to this Section 3, as a condition precedent to the issuance of the earliest of: (i) a grading or
excavation permit, (ii) a demolition permit, or (iii) a building permit for the development, construction or installation
of any improvements on all or any portion of any Benefitted Parcel (the “First Permit”), the City will attempt to
collect from the owner (individually, a “Developing Owner,” and collectively, the “Developing Owners”) of all or
the applicable portion of any Benefitted Parcel, the Pro Rata Share (as such term is defined below).

(b) The “Pro Rata Share” is defined as the proportionate share of both the Lift Station Design Costs

and the Lift Station Construction Costs, plus interest at a fixed rate of 5.0% compounded annually from the date the
Lift Station was substantially completed until the required reimbursement payment allocated to each Benefitted Parcel

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has been made in full (collectively, the “Lift Station Costs”). The Pro Rata Share is calculated by dividing the actual
gross square footage of the Benefitted Parcel (without reduction for any rights-of-way, easements, wetlands areas, or
other areas that may not be usable for development or construction) by12,317,849, the actual gross square feet of all
of the Benefitted Parcels together, as determined by BYPG and the City, for all purposes of this Agreement.

(c) To the extent allowed under any applicable law or regulation, the City will not grant the First Permit
and will prohibit any connection to the City’s Sanitary Sewer System, including the Lift Station, unless and until a
Developing Owner’s Pro Rata Share is paid in full.

(d) Notwithstanding any provision in this Agreement to the contrary, the City will attempt to collect the
entire Pro Rata Share allocated to a Benefitted Parcel from the first Developing Owner thereof when the First Permit
is issued, regardless of the type or extent of the interest such first Developing Owner has in such Benefitted Parcel.
Further, once the entire Pro Rata Share attributable to a Benefitted Parcel has been paid in full, no subsequent
Developing Owners of all or any portion thereof are obligated to make any further payments to the City or BYPG
under this Agreement.

(e) Within 30 calendar days following receipt by the City of all or any portion a Developing Owner’s
Pro Rata Share, the City will transmit such amount to BYPG. The City will keep reasonably detailed records of each
Developing Owner (and each Benefitted Parcel) that is issued an excavation, demolition or building permit or that
connects to or is served by the Lift Station, and will make such records available to BYPG from time to time upon
request.

(f) The City hereby assigns to BYPG pursuant to A.R.S. §33-982 or any other applicable statutory
provision any rights it may have to collect the Pro Rata Share for improvements that have been made on the City-
owned Lift Station Parcel directly from each Developing Owner that fails or refuses to make payment of its Pro Rata
Share to the City as requested under subsection (d) above. In furtherance of its rights under this Agreement, BYPG
may seek to perfect a lien in accordance with A.R.S. §§33-983 and 33-993 or any other applicable statutory provision,
together with any and all other remedies available under any applicable Arizona law against each applicable Benefitted
Parcel or Developing Owner, including, without limitation, the remedies of specific performance or monetary
damages.

(g) Anything in this Agreement to the contrary notwithstanding, the condition precedent and the Pro
Rata Share reimbursement obligation contained in this Section shall not apply to BYPG or any entity that controls, is
controlled by, or is under common control with BYPG.

4. Completion of Work: Accounting. BYPG and the City anticipate that construction of the Lift Station
will be, and BYPG will use commercially reasonable efforts to cause construction of the Lift Station to be,
substantially completed by December 31, 2024; provided, however, that BYPG will not be in default or violation of
any of its obligations under this Agreement if such estimated substantial completion date is not achieved. After the
construction of the Lift Station is completed, tested, and approved by the City in accordance with any applicable City
code provisions, BYPG will provide a final accounting of the Lift Station Construction Costs to the City.

5. Cooperation for Shared Access. The Lift Station Plans contemplate that access between the Lift
Station Parcel and the planned curb cut on North Ball Park Boulevard will be provided via an easement across certain
real property (currently owned by a third party) located north of the Lift Station Parcel. BYPG’s intended development
of the property, which it currently owns and is located immediately to the east of the Lift Station Parcel (the “Easterly
Parcel”), contemplates BYPG and the City sharing the contemplated curb cut and portions of the access drive to the
Lift Station Parcel. The City will cooperate with BYPG in order to arrange for such easement and shared access. To
the extent that BYPG’s shared use of the curb cut and access drive increases the cost thereof above the cost that would
be incurred in the absence of such sharing, such increased costs will be borne by BYPG.

6. Term. The term of this Agreement, with respect to the City’s obligations hereunder, will commence
on the Effective Date and will continue until the earlier of: (a) the date on which all Lift Station Costs have been
collected by the City and transmitted to BYPG in accordance with this Agreement; or (b) the 15" anniversary of the
Effective Date. However, the expiration of this Agreement under the immediately preceding sentence does not waive

or otherwise affect BYPG’s rights thereafter to seek reimbursement from any Developing Owner, and/or file a lien
hereunder against a Benefitted Parcel to the extent permitted under applicable law.

7. Binding Effect. The provisions of this Agreement are binding upon, and shall inure to the benefit
of, the parties and their respective successors and assigns.

8. Discretionary Authority. Except as expressly set forth herein, nothing in this Agreement will be
interpreted or implied to require, restrict or limit, in any manner whatsoever, any legislative, discretionary or other
approvals by the City related to development of any Benefitted Parcel, nor will this Agreement impinge in any way
upon the City in carrying out or exercising any of its governmental duties, rights, powers or privileges.

9. Indemnification.

(a) BYPG agrees to indemnify, defend and hold harmless, on a current basis, the City, and its officials,
including, without limitation, elected officials, officers, managers, members, agents and employees, from and against
all direct (but not indirect, consequential, special or punitive) loss, damage, claims, suits, proceedings, cost and
expense, including, without limitation, reasonable attorneys’ fees, costs and experts’ fees, arising or resulting from,
caused or occasioned by, or related to BYPG’s obligations, performance and actions taken or not taken under this
Agreement.

(b) The City agrees to indemnify, defend and hold harmless, on a current basis, BYPG, and its officers,
managers, members, agents and employees, from and against all direct (but not indirect, consequential, special or
punitive) loss, damage, claims, suits, proceedings, cost and expense, including, without limitation, reasonable
attorneys’ fees, costs and experts’ fees, arising or resulting from, caused or occasioned by, or related to the City’s
gross negligence, willful or intentional conduct. Nothing in this Agreement, however, subjects the City to any liability
or indemnification for any failure to collect or obtain recovery of a Pro Rata Share from a Benefited Parcel on BYPG’s
behalf.

10. Attorneys’ Fees. If any action is brought by a party in respect to its rights under this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees and court costs as determined by the court.

11. Waivers. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other
provision, whether similar or dissimilar, nor shall any waiver be a continuing waiver. Except as expressly provided in
this Agreement, no waiver shall be binding unless executed in writing by the party making the waiver. Either party
may waive any provision of this Agreement intended for its benefit; provided, however, that such waiver shall in no
way excuse the other party from the performance of any of its other obligations under this Agreement.

12. Governing Law: Severability. This Agreement shall be subject to, and construed according to, the
laws of the State of Arizona without the application of any principles of conflicts of law that would require or permit
the application of the laws of any other jurisdiction. If any covenant, condition, provision, term or agreement of this
Agreement is, to any extent, held invalid or unenforceable, the remaining portion thereof and all other covenants,
conditions, provisions, terms and agreements of this Agreement will not be affected by such holding, and will remain
valid and in force to the fullest extent permitted by law.

13. Conflict. The parties acknowledge 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 or BYPG’s behalf, respectively, is also an employee, agent
or consultant of any other party to this Agreement.

14. Notices. Notices shall be in writing and shall be given by personal delivery, by deposit in the United
States mail, certified mail, return receipt requested, postage prepaid, or by express delivery service, freight prepaid, in
each case by delivery to each party at the respective addresses set forth below or at such other address as a party may
designate in writing. The date notice is given shall be the date on which the notice is delivered, if notice is given by
personal delivery or overnight courier, or five calendar days after the date of deposit in the mail, if the notice is sent
through the United States mail. Subject to the foregoing, the respective addresses for the parties are as follows:

For BYPG: BYPG Holdings, LLC
c/o VanTrust Real Estate, LLC
Suite 880
2525 East Camelback Road
Phoenix, Arizona 85016
Attention: Keith L. Earnest, Executive Vice President, Phoenix

With a copy to: VanTrust Real Estate, LLC
Suite 880
2525 East Camelback Road
Phoenix, Arizona 85016
Attention: Sandy L. Broadfoot, Executive Vice President, Legal

And with a copy to: O’Rourke, Hogan, Fowler & Dwyer, LLC
Suite 3700
10 South LaSalle Street
Chicago, Illinois 60603
Attention: W. Craig Fowler

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

With a copy to: City of Glendale
5850 West Glendale Avenue
Glendale, Arizona 85301
Attention: City Attorney

15. Documentation. This Agreement, including, without limitation, Exhibit A that is incorporated herein
by this reference, constitutes a single agreement pertaining to the subject matter contained herein. Each party agrees
in good faith to execute such further or additional documents as may be necessary or appropriate to fully carry out the
intent and purpose of this Agreement.

16. Time Periods. Except as expressly provided in this Agreement, the time for performance of any
obligation or taking any action under this Agreement shall be deemed to expire at 5:00 p.m. (Phoenix time) on the
date for performance. If the time for the performance of any obligation or taking any action under this Agreement
expires on a Saturday, Sunday or legal holiday generally recognized in the State of Arizona, the time for performance
or taking such action shall be extended to the next succeeding day which is not a Saturday, Sunday or legal holiday.

17, Entire Agreement: Amendments. This Agreement constitutes the entire agreement of the parties and
supersedes any negotiations, discussions, undertakings, correspondence or informal agreements of the parties. All
prior and contemporaneous agreements, representations and understandings of the parties, oral or written, are
superseded by and merged in this Agreement. This Agreement, or any provision hereof, or any covenant, condition
or restriction contained herein, may be terminated, extended, modified or amended only with the written consent of:
(a) the City (and approved by the City Council, if necessary); and (b) BYPG.

18. Interpretation. Both parties have been represented by counsel in negotiating and approving this
Agreement. This Agreement shall be interpreted, applied and enforced according to the fair meaning of its terms and
shall not be construed in favor of, or against, either party, regardless of which party may have drafted or proposed any
of its provisions or terms.

19. Counterparts: Electronic Transmission. This Agreement may be executed in counterparts, each of
which, when executed by all of the parties, will be deemed an original, but all of which together, when so executed,
will constitute one and the same instrument. To facilitate execution of this Agreement, the parties may execute and
deliver counterparts hereof (or counterparts of the signature page or pages hereof) by facsimile or electronic

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transmission, and such facsimile or electronically transmitted counterparts will be binding and enforceable to the same
extent as originals thereof.

20. Recordation. As provided in A.R.S. § 9-500.05(D), the City shall record a copy of this Agreement
with the Maricopa County Recorder no later than 10 days after it is signed by the City. The recordation constitutes
notice of this Agreement to all persons.

21. Effective Date. This Agreement shall become effective 30 days after it is approved by the City
Council.

[Signatures on following pages]

The City and BYPG have each caused this Agreement to be executed and delivered by its duly authorized
representative to be effective as of the Effective Date.

City:

City of Glendale, an Arizona municipal corporation

By:
Kevin R. Phelps, City Manager
Attest:
Julie K. Bower, City Clerk
Approved as to Form:
Michael D. Bailey, City Attorney
BYPG:

BYPG Holdings, LLC, an Arizona limited liability
company

By: 7575 Development, Inc., an Arizona
corporation, Manager

By:
Nanie:_ Michae! Pacwew
Title:___—s fice Presideny

Exhibit A - Site Map
VISION 2 LIFT STATION -
OWNERSHIP AND AREAS

SUBTOTAL Cost Share Based
FOR OWNER Property on Area of $6.2M.

a |
——thiez-so-nacfewavano ue __{"aaauass_a7azal___|
|__ 8.953]

ioc-s-oaso|raRRANTING ENTEAPREES“ARZONAE | —sonsaa] — Faso] |

[102-60-014F [FERRANTINO ENTERPRISES -ARIZONALLC | 380997] 8.746]

5|102-60-017) |FERRANTINO ENTERPRISES-aRIZONALLC | aso3go| 11.028]

6|102-60-0261 |FERRANTINO ENTERPRISES- ARIZONAULC | 187094] 4.295| 31.070]
[102-60-017F |ZEKELMANPROPERTYGLENDALELLC | 36a479|_ 8.367] | | oom] $
[102-60-016H|ZEKELMAN PROPERTYGLENDALELLC | 70208|__—1.612| 9.979] 3.83%] 3.51% $218,793.02 |
luo2-6o-013e|avPGHoUINGsuc | ata7| goon] | | oom] §
[u02-60-013F |ByPGHOWDINGSUc | azngo| g.oaz] | | mo S|
juoz-so-o1salevPGHoUINcsuc | tgovase] as.asa] || oo S|
[| 5.222] a
lno2-60-028 lavPGHowwincsuc | gazal azatPooef sO
eS
l102-60-034 |BYPGHOUDINGSUC | 2saa| state] | | oom] §
[102-690-0111 |ayPGHoINGsUC | 28572] 0.620] 68.616] 20.26%| 24.2586] S1,504,413.36 |
[102-60-o1ap|porTeRFtetDs | aga] no.gzof | | oo] SO
[102-60-O15D|PORTERFIELDS | azsaeal 29.761| 40.073] _14.17%| 14.10%) $878,564.56 |
20|4 ssu-so-or) Morr fava Taust___|__ag9a,_e.agof _ ;—— 8 $e
[102-60-031 |morrramuyTaUst | aass| 5.038] _——5.426|__4.92%| 2.91%] $119,009.95 |
ed So a a a
[Tora AREA CONTRIBUTING TOUFTSTATION | 19317845 252.775[ 792.779] 100%| 99.51%] $ 6 200000.00/