Purchase and Sale Agreement
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PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date (as defined below) by and between the CITY OF GLENDALE, an Arizona municipal corporation (“Seller” or “City”), and Vai Resorts, LLC, an Arizona limited liability company (“Purchaser”). WHEREAS, Seller desires to sell and Purchaser desires to purchase, upon the terms and conditions hereinafter set forth, approximately 359,370 sq. ft. (8.25 acres) of the 19.7 acres of vacant real property located generally on the eastern side of Maricopa County Parcel No. APN 102-13-072, and bounded by 91st Avenue to the east, Bethany Home Road on the north and Montebello Avenue on the south in the City of Glendale, State of Arizona, as legally described in Exhibit A attached hereto, together with all improvements, rights, easements, and appurtenances pertaining thereto and all fixtures and other property located thereon, including but not limited to water rights, air rights, development rights, rights to minerals, oil, gas, and other hydrocarbon substances in, under, or that may be produced from the real property and not previously reserved (to the extent the same is held by Seller), rights to strips and gores, streets, alleys, rights-of-way, public ways, or other rights appurtenant, adjacent, or connected to the real property, (collectively, the “Property”). WHEREAS, Seller, pursuant to Section 2-166 of the Glendale City Code, has the right to sell, lease, exchange or otherwise dispose of its property for the best interests of the Seller. WHEREAS, the City Council, by approving this Agreement, has determined that it is the best interests of the City to sell the Property legally described in Exhibit A. WHEREAS, the notice for sale of the Property has been published in a newspaper of general circulation in the City of Glendale for two (2) consecutive weeks and posted at the Glendale City Hall, 5850 W. Glendale Avenue, Glendale, Arizona 85301 for twelve (12) consecutive days, as required by Glendale City Code, Section 2-167 (posted from May 1 2024 through May 28, 2024); WHEREAS, the Parties acknowledge that the Property is subject to and the Seller has certain obligations under the Stadium Parking Settlement Agreement, as amended and supplemented (City Contract #C-11329, Recorded November 16, 2016, Instrument Number 2016- 0847071) between the City of Glendale and the Arizona Cardinals and Arizona Sports and Tourism Authority (“AZSTA”) (“Stadium Parking Settlement Agreement”). WHEREAS, as a material condition to Seller's execution and delivery of this Agreement, the Seller has entered into its undertakings with Purchaser because Purchaser acknowledges Seller's obligations under the Stadium Parking Settlement Agreement, easements and covenants that run with the land and may affects this Property. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereto agree as follows: 1. Purchase Price. Subject to the terms and provisions of this Agreement, Seller shall sell and transfer the Property to Purchaser, and Purchaser shall purchase the Property from Seller and pay to Seller, the sum of $ 7,546,770SD (hereinafter referred to as the “Purchase Price”). The Purchase Price is to be calculated based upon a price of $21/sf., and shall be adjusted at closing to reflect the actual square footage of the Property. 2. Earnest Money. Within three (3) business days after the Effective Date, Purchaser agrees to deposit in escrow (“Escrow”) with Jason Bryant, Security Title Agency, Inc. 2415 E. Camelback Road, Suite 200, Phoenix, Arizona 85016 (“Escrow Agent”), by federal wire transfer or other immediately available funds, an earnest money deposit in the amount of $1,000,000 USD (the “Earnest Money”). Upon the expiration of the Inspection Period, the Earnest Money shall become nonrefundable, except: (i) in the event of a default by Seller; (ii) pursuant to the provisions of Sections 7(a), 7(b), 10, and 13 below; or (iii) pursuant to any other provision of this Agreement providing for the return of Earnest Money to Purchaser. 3. Closing Costs. a. Seller Closing Costs. On or before Closing, Seller shall pay: (i) Seller’s attorneys’ fees; (ii) any water, electricity, or other utility charges for services furnished to the Property prior to Closing; (iii) fifty percent (50%) of all title insurance fees and premiums for the issuance to Purchaser of standard and extended owner’s title insurance policies and the cost of any endorsements to Purchaser’s policy of title insurance, (iv) all transfer taxes, recording taxes, documentary stamp taxes and similar taxes, and (v) fifty percent (50%) of all escrow charges. b. Purchaser Closing Costs. On or before Closing, Purchaser shall pay: (i) Purchaser’s attorneys’ fees; (ii) fifty percent (50%) of all title insurance fees and premiums for the issuance to Purchaser of standard and extended owner’s title insurance policies and the cost of any endorsements to Purchaser’s policy of title insurance; (iii) all recording fees on recordable documents incident to the conveyance of the Property to Purchaser, and (iv) fifty percent (50%) of all escrow charges. c. Other Costs. Any closing costs not otherwise provided for herein shall be allocated among and paid by the parties hereto in the manner which is customary for a sale of real property in the City of Glendale. 4. Prorations; Escrow Agent. a. Prorations. i. Taxes and Assessments. All real property ad valorem taxes, special taxes, and assessments accruing in years prior to the year in which the acquisition of the Property by Purchaser occurs shall be paid by Seller. All real property ad valorem taxes, special taxes, and assessments accruing in the year in which the acquisition of the Property by Purchaser occurs shall be prorated among Seller and Purchaser through the Closing Date (as defined in Section 5 below). b. Actions By Escrow Agent. Upon the Closing, Escrow Agent shall promptly undertake all of the following in the manner indicated: i. Prorations. Prorate all matters referenced in this Section 4 above based upon the settlement statement delivered into Escrow signed by the parties. ii. Recording. Cause the Deed (as defined below) and any other documents that the parties hereto may mutually direct, to be recorded in the official records of the County. iii. Disbursements. Disburse from funds deposited by Purchaser with Escrow Agent towards payment of the Purchase Price and all other items chargeable to the account of Purchaser pursuant to this Agreement in payment of such obligations. iv. Title Policy. Direct the Title Company to issue to Purchaser an original ALTA Standard Owner’s Policy of Title Insurance or, if requested by Purchaser, an original ALTA Extended Coverage Owner’s Policy of Title Insurance (“Title Policy”) in the amount of the Purchase Price showing title to the Property vested in Purchaser and with such endorsements as Purchaser may request. 5. Closing. The consummation of the purchase and sale of the Property (the “Closing” or the “Close of Escrow”) shall be defined as the date that the special warranty deed (“Deed”), in the form attached hereto as Exhibit B, conveying the Property to Purchaser is recorded. Subject to Section 7(b), this Escrow shall close on or before December 31, 2024 (“Closing Date”). 6. Inspections Prior to Closing. a. “AS IS.” Purchaser acknowledges and agrees that, except as expressly provided in this Agreement, Seller has made no representations or warranties and has no continuing responsibility or liability regarding the Property, including, without limitation, its condition and its “Environmental Condition” (as herein defined). Purchaser acknowledges and agrees it is purchasing the Property on an “as is” basis and “with all faults” basis. Purchaser is not relying in any way upon any representations, statements, agreements, warranties, studies, plans, reports, descriptions, guidelines or other information or material furnished by Seller or its representatives, whether oral or written, express or implied, of any nature whatsoever, except as expressly provided in this Agreement. Further, nothing in this Agreements requires Seller to conduct any reports or studies to assess the environmental condition of the Property. For purposes of this Agreement, “Environmental Condition” shall mean any condition with respect to soil, surface water or groundwater at, from or below the Property or other conditions present at the Property. Such conditions need not be in violation of Environmental Laws (as herein defined) or require remedial action and/or could result in claims, demands, and/or liabilities to third parties, including but not limited to governmental entities. Without limiting the generality of the foregoing, Purchaser hereby expressly waives and relinquishes any and all rights and remedies Purchaser may now or hereafter have against Seller, whether known or unknown, with respect to the Environmental Condition of the Property except as expressly provided in this Agreement. As used herein, “Environmental Laws” shall include, without limitation, federal, state, local, and regional statutes, rules, regulations, and the common law relating to the environment, including, without limitation, the Arizona Environmental Quality Act, contained in Title 49 of the Arizona Revised Statutes, as amended; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901, et seq. (“RCRA”); the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et seq. (“HMTA”); the Clean Air Act, as amended, 42 U.S.C. Section 7401, et seq.; the Emergency Planning and Community Right-To-Know Act of 1986, as amended, 42 U.S.C. Section 11001 et seq. (“EPCRA”); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. Section 136, et seq.; the Clean Water Act, as amended, 33 U.S.C. Section 1251, et seq.; the National Environmental Policy Act, as amended, 42 U.S.C. Section 4321, et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651 et seq.; the Endangered Species Act, as amended, 16 U.S.C. Section 1531, et seq.; the Rivers and Harbors Act of 1899, as amended, 33 U.S.C. Section 401 et seq.; the Oil Pollution Act of 1990, as amended; the Pollution Prevention Act of 1990, as amended; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300[f] et seq.; the Toxic Substances Control Act, as amended, 7 U.S.C. Section 136 et seq. (“TSCA”); any regulations promulgated under or pursuant to any of the foregoing; and all other federal, state, and local laws, ordinances, statutes, codes, rules, regulations, orders, and decrees now in effect relating to the existence of Hazardous Materials (as herein defined) located at the Property. As used herein, the term “Hazardous Material(s)” includes, without limitation, any hazardous waste, solid waste or toxic materials, hazards, substances, pollutants, or contaminants located at or emanating from the Property, as defined in the applicable Environmental Laws described herein. b. Inspection and Limited Entry License. Subject to the terms and conditions hereof; Purchaser, its agents and representatives, and any other persons designated by Purchaser, shall at all times before the Closing have the privilege, opportunity, and right of entering upon the Property to conduct such examinations, tests, studies, and investigations of the Property, including, but not limited to, the physical and environmental conditions thereof (collectively, “Studies”), as Purchaser deems necessary or desirable to satisfy itself as to the condition of the Property. Purchaser shall indemnify, defend, and hold harmless Seller, the Property and Seller’s agents, employees, officers, directors, shareholders, partners, members, affiliates, successors, assigns, and representatives for, from, and against any and all liabilities, losses, claims, demands, damages, including reasonable attorneys’ fees, experts fees, consultants fees, courts costs, and any other expenses which result from or arise out of or is any way connected with Purchaser’s inspection of the Property or in connection with Purchaser’s failure to restore the Property, which indemnification shall survive the Close of Escrow or any early termination of this Agreement; provided, however, that Purchaser’s obligation above to indemnify, defend, and hold harmless shall not extend to any claims or liabilities arising out of the discovery or disturbance of any pre-existing conditions on the Property. Purchaser agrees to return Property to the same or materially similar condition only in the event that it terminates this Agreement. Nothing in this subsection 6(b) is intended to expand or conflict with the right of access provided to Purchaser or the indemnification provide to Seller in the separate Access and Indemnification Agreement (“Access Agreement”) between the Parties dated May 10, 2024. c. Seller Information. No later than five (5) days following the Effective Date, Seller shall furnish to Purchaser copies of all existing soils reports; engineering reports; environmental reports and related environmental studies, and other reports and studies, surveys, plats, plans, specifications, filings, permits, and/or certificates of non-compliance in Seller’s possession or control pertaining to the Property or the development thereof (all such reports, information, and other data and materials collectively referred to as the “Seller Information”). While Seller is not required to undertake any action or to commission any such reports, studies, etc., Seller agrees that any such Seller Information not in Seller’s possession or control concurrently with the execution hereof but which come into Seller’s possession or control prior to Close of Escrow shall be delivered to Purchaser. Seller shall cooperate with Purchaser if Purchaser desires to have any Seller Information updated and/or certified to Purchaser, so long as Seller does not incur any out-of- pocket cost to third parties in so doing. Purchaser acknowledges that Seller does not make any representation or warranty of any nature whatsoever regarding the truth, accuracy, validity, completeness, usefulness, suitability or any other aspect of the Seller Information, whether prior to or after the Effective Date, and Seller expressly disclaims any such representation and warranty. In the event this Agreement is terminated prior to Closing, Purchaser shall return all Seller Information promptly to Seller or promptly destroy the same. d. Survival. The provisions of this Section 6 shall survive Closing or any earlier termination of this Agreement, regardless of the reason for such termination. 7. Conditions Precedent. a. Inspection Period. It is agreed that Purchaser’s obligations hereunder are conditioned upon Purchaser being satisfied, at Purchaser’s sole cost and expense, within the Inspection Period (as defined below) with the condition of the Property, as more fully set forth below: (i) Title. As soon as reasonably practicable, Purchaser shall cause Title Company to provide to Purchaser and Seller a title commitment for the Property (the “Title Commitment”). Purchaser shall deliver an ALTA survey of the Property, from a surveyor reasonably selected by Purchaser, based on the Title Commitment as soon as reasonably practicable (the “Survey”). Purchaser shall have thirty (30) days after receipt of the Survey and the Title Commitment and copies of all instruments and documents referred to in the Title Commitment, or ten (10) days after the receipt of any amendment thereto and copies of all instruments and documents referred to therein (but not to exceed the Closing Date), to give written notice to Seller (the “Title Objection Notice”) of any objectionable matter or defect which Purchaser determines in its reasonable discretion (the “Title & Survey Objections”). Seller shall reasonably cooperate with Purchaser to cure such Title & Survey Objections by the Closing Date. If such Title & Survey Objections are not cured by the Closing Date, then Purchaser shall have the option either to: (i) waive its objections hereunder and take title to the Property pursuant to the remaining terms of this Agreement; or (ii) terminate this Agreement by giving written notice to Seller on or before the Closing Date. If this Agreement is terminated pursuant to this Section 7(a)(i), the Earnest Money shall be refunded by Escrow Agent to Purchaser, and this Agreement shall be null and void and of no further force or effect with Purchaser and Seller having no further rights, obligations or liabilities hereunder except as otherwise set forth herein. Seller makes no representations or warranties whatsoever concerning title, except as specifically provided in this Agreement. The provisions of this Section 7(a)(i) shall survive Closing. (ii) Studies. Purchaser shall conduct due diligence studies, including such physical inspections and other tests, examinations, studies, and appraisals of the Property, as Purchaser deems necessary to satisfy its condition and suitability for Purchaser’s Intended Use thereof. (iii) Disapproval During Inspection Period. Should Purchaser not be satisfied with the condition of the Property, in Purchaser’s sole and absolute discretion, Purchaser shall deliver written disapproval notice to Seller and Escrow Agent on or before the expiration of the Inspection Period, and this Agreement shall be deemed terminated. In the event of such disapproval and termination, the Earnest Money shall be refunded by Escrow Agent to Purchaser and this Agreement shall be null and void and of no further force or effect. Purchaser and Seller thereafter have no further rights, obligations or liabilities hereunder except as otherwise set forth herein or in the Access Agreement. Specifically, because Purchaser has been provided the right to place soils and undertake construction activities prior to Closing, any liability for any such actions shall survive the termination of this Agreement. (iv) Approval by Default. If Purchaser fails to deliver the written disapproval notice to Seller and Escrow Agent on or before the expiration of the Inspection Period, Purchaser shall be deemed to be satisfied with the Property and the Earnest Money shall be non- refundable to Purchaser, except in the event of a default hereunder by Seller, or upon the failure of Purchaser to obtain the Development Approval, or pursuant to any other provision of this Agreement providing for the return of Earnest Money to Purchaser. Term of Inspection Period. For purposes of this Agreement, the term “Inspection Period” means the period commencing on the Effective Date and expiring at 5:00 p.m. (Arizona time) one hundred fifty (150) calendar days thereafter. 8. Maintenance and Use of Property Prior to Closing. Seller shall take no action to change the condition of the Property from the Effective Date until Closing. Prior to the Closing, Purchaser may continue to place soil and perform such other activities as are permitted in accordance with the separate Access Agreement between the Parties dated May 10, 2024 and may conduct construction activities including construction of a parking structure and all activities related thereto. Seller shall provide Purchaser with any further documents required to allow said construction, including a temporary construction easement to conduct construction activities on the Property to the extent such rights are not already provided in the Access Agreement. In exchange for allowing it to begin construction before Closing, Purchaser indemnifies the Seller as provided in Section 6(b) above. 9. Conditions to Closing. a. Seller’s Conditions. Notwithstanding anything to the contrary contained herein, for the benefit of Seller, the Closing shall be expressly conditioned upon the occurrence and/or satisfaction of each of the following conditions (or Seller’s written waiver thereof, it being agreed that Seller may waive any, all or none of such conditions): i. Purchaser’s Obligations. Purchaser shall have timely performed all of the obligations required by the terms of this Agreement to be performed by Purchaser; and ii. Purchaser’s Representations. All covenants, representations, and warranties made by Purchaser to Seller in this Agreement shall be true and correct as of the Closing Date. b. Purchaser’s Conditions. Notwithstanding anything to the contrary contained herein, for the benefit of Purchaser, the Closing shall be expressly conditioned upon the occurrence and/or satisfaction of each of the following conditions (or Purchaser’s written waiver thereof, it being agreed that Purchaser may waive any, all or none of such conditions): i. Seller’s Obligations. Seller shall have timely performed all of the obligations required by the terms of this Agreement to be performed by Seller; and ii. Seller’s Representations. All covenants, representations, and warranties made by Seller to Purchaser in this Agreement shall be true and correct as of the Closing Date. In the event that one or more of the conditions in Section 9(a) or 9(b) are not satisfied as of the closing, Seller or Purchaser, as applicable, may elect either to proceed to Closing or to terminate this Agreement upon written notice to the other. Upon a termination pursuant to the provisions of this Section 9, the terminating party shall be entitled to the Earnest Money and this Agreement shall be null and void and of no further force or effect, with Purchaser and Seller having no further rights, obligations or liabilities hereunder except as otherwise set forth herein. 10. Conveyance of Title. At Closing, Seller shall convey fee simple title to the Property to Purchaser pursuant to the Deed, subject only to the following: (i) all real estate taxes, supplemental taxes and assessments not yet due and payable; and (ii) all Title & Survey Objections waived by Purchaser pursuant to Section 7(a)(i) above. Notwithstanding the foregoing, Seller covenants to convey the Property to Purchaser free and clear of: (i) all monetary liens and encumbrances; and (ii) all other contractual or governmental interests in the Property, if any. 11. Closing Documents. (a) Deposits by Seller. Seller shall deliver at the Closing the following documents (which shall be duly executed and acknowledged, where necessary, by Seller as appropriate): i. the Deed; ii. any reasonable and customary certificates and affidavits that may be required in the normal course by Title Company, in form and substance satisfactory to Seller, duly executed by Seller; iii. such evidence as the Escrow Agent shall reasonably require as to the authority of the parties acting on behalf of Seller to enter into this Agreement and to discharge the obligations of Seller pursuant hereto; iv. a closing statement which sets forth the distribution of the Purchase Price and other funds; v. an Affidavit of Property Value, if required, which may be executed on behalf of Seller by the Escrow Agent; and vi. the Escrow Agreement and Easement Agreement (as such terms are defined below). b. Deposits by Purchaser. Purchaser shall deliver at the Closing the following documents (which shall be duly executed and acknowledged, where necessary, by Purchaser as appropriate) and the following funds: (i) such evidence as the Escrow Agent shall reasonably require as to the authority of the parties acting on behalf of Purchaser to enter into this Agreement and to discharge the obligations of Purchaser pursuant hereto; (ii) a closing statement which sets forth the distribution of the Purchase Price and other funds; (iii) an Affidavit of Property Value, which may be executed on behalf of Purchaser by the Escrow Agent; (iv) the balance of the Purchase Price plus Escrow Agent’s estimate of Purchaser’s share of closing costs, prorations and charges payable pursuant to this Agreement; (v) any reasonable and customary certificates and affidavits that may be required in the normal course by Title Company, in form and substance satisfactory to Purchaser, duly executed by Purchaser; and (vi) the Escrow Agreement and Easement Agreement. 12. Assignment. Purchaser shall not assign or otherwise transfer any of its rights, including but not limited to, its current rights to purchase the Property or its right of first refusal to purchase the remaining vacant land pursuant to Section 36 herein, under this Agreement under any circumstance without the prior written consent of Seller which may be given or withheld in Seller’s sole discretion, except the Purchaser may assign said rights to any parent, subsidiary or affiliated company. Any such assignment or transfer without Seller’s consent shall be absolutely null and void and shall constitute a default by Purchaser under this Agreement. 13. Restriction on Future Transfer. Purchaser may not assign or encumber this Agreement or any of its rights or obligations hereunder or nominate a substitute Purchaser to take title to the Property at the Closing, without obtaining the prior written consent of Seller, which consent may be given or withheld by Seller in its sole discretion, except the Purchaser may assign its rights or obligations hereunder to any parent, subsidiary or affiliated company. Any attempt by Purchaser to assign, transfer, encumber or nominate in violation of this Section shall be null and void and of no force or effect, and shall also be a breach of this Agreement. 14. Notices. All notices, requests, demands, or other communications hereunder shall be in writing and shall be delivered by e-mail, personal delivery, overnight delivery service, or United States registered or certified mail, return receipt requested, postage prepaid (all of the foregoing, a “Delivery Service”), addressed as follows: To Seller: With a copy to: The City of Glendale 5850 W. Glendale Avenue Glendale, Arizona 85301 Attention: Kevin Phelps, City Manager Email: kphelps@glendaleaz.com The City of Glendale 5850 W. Glendale Avenue, Glendale, Arizona 85301 Attention: Michael Bailey mbailey@glendaleaz.com To Purchaser: Vai Resorts, LLC 1302 W Drivers Way Tempe, AZ 85284 Attention: Tommy Fisher Email: tfisher@fisherind.com To Escrow Agent: Jason Bryant, Security Title Agency, Inc. 2415 E. Camelback Road, Suite 200, Phoenix, Arizona 85016 jbryant@securitytitle.com 602-230-6271 or to such other address as any party may from time to time designate by notice in writing to the other parties. All notices given pursuant to this Agreement shall be deemed given three (3) business days following deposit with a Delivery Service, except in the case of e-mail (in which case notice shall be deemed to have been given when such email is sent). 15. Amendment. Neither this Agreement nor any provision hereof may be changed, amended, modified, waived, or discharged orally or by any course of dealing, but only by an instrument in writing signed by the party against which enforcement of the change, amendment, modification, waiver, or discharge is sought. 16. Legal Fees. In the event legal action is instituted by any of the parties to enforce the terms of this Agreement or arising out of the execution of this Agreement, the prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees and court costs actually incurred (without regard to statutory interpretation). 17. Brokers. Seller has listing contract with Plaza Companies as the real estate broker, agent, or salesman for the Property. Seller shall therefore pay a 3% real estate commission in the amount of approximately $205,821 from the proceeds of the sale to said broker upon Closing. Seller and Purchaser hereby agree to indemnify and hold the other harmless from and against any and all claims (including, without limitation, court costs and reasonable attorneys’ fees actually incurred in connection with any such claims) made by any party other than Seller’s broker for any other real estate commissions or similar fees arising out of or in any way connected with any breach of the foregoing representation. This Section 18 shall survive the Closing or earlier termination of this Agreement. 18. Default (a) By Purchaser; Liquidated Damages. If Purchaser commits a material default under this Agreement, then if such default is not cured within ten (10) business days following written notice setting out the nature of such default, (provided if such default cannot be reasonably cured within ten (10) business days, then such cure period shall be extended for up to sixty (60) days so long as Purchaser diligently pursues such cure using commercially reasonable efforts), then Seller may instruct the Escrow Agent to cancel the Escrow, and Seller shall thereupon be released from its obligations hereunder. Purchaser and Seller agree that based upon the circumstances now existing, known and unknown, it would be impractical, or extremely difficult to establish Seller’s damage by reason of Purchaser’s default. Accordingly, Purchaser and Seller agree that in the event of default by Purchaser under this Agreement, it would be reasonable at such time to award Seller “liquidated damages” equal to the Earnest Money, and Seller may instruct the Escrow Agent to cancel the Escrow and immediately pay over to Seller the Earnest Money. The payment of said liquidated damages, therefore, shall constitute Seller’s sole and exclusive remedy against Purchaser at law and in equity and shall be in lieu of the exercise by Seller of any other legal or equitable right or remedy that Seller may have against Purchaser as a result of Purchaser’s default. Nothing in this paragraph shall limit Seller’s independent right of recourse against Purchaser with respect to any indemnity made by Purchaser to Seller in accordance with the provisions of this Agreement which, by the operative terms hereof, survives termination. (b) By Seller. If Seller commits a material default under this Agreement, then if such default is not cured within ten (10) business days following written notice setting out the nature of such default (provided if such default cannot be reasonably cured within ten (10) business days, then such cure period shall be extended for up to sixty (60) days so long as Seller diligently pursues such cure using commercially reasonable efforts), then Purchaser shall be entitled to pursue any available legal and/or equitable remedy, but any damages available to Purchaser shall not exceed the amount Purchaser paid, or is obligated to pay, to perform any improvements to the Property, plus return of the full amount of the Earnest Money Nothing in this paragraph shall limit Purchaser’s independent right of recourse against Seller with respect to any indemnity made by Seller to Purchaser in accordance with the provisions of this Agreement which, by the operative terms hereof, survives termination. Purchaser and Seller hereby acknowledge and agree that the Property is unique and that specific performance is an appropriate remedy. 19. Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Arizona. 20. Waiver. Failure of either Purchaser or Seller to exercise any right given hereunder or to insist upon strict compliance with regard to any term, condition or covenant specified herein, shall not constitute a waiver of Purchaser’s or Seller’s right to exercise such right or to demand strict compliance with any term, condition or covenant under this Agreement. 21. Counterparts. This Agreement may be executed in several counterparts, each of which may be deemed an original, and all of such counterparts together shall constitute one and the same Agreement. For purposes of negotiating and finalizing this Agreement, any signed document transmitted by e-mail with confirmation of receipt shall be treated in all manners and respects as an original document. The signature of any party transmitted as aforesaid shall be considered for all purposes as an original signature and any such document shall be considered to have the same binding legal effect as an original document executed, delivered, and exchanged between the parties. Seller and Purchaser hereby agree that neither shall raise the use of an e-mail transmission of signatures as a defense to this Agreement and each hereby waives such a defense. 22. Captions; Construction. All captions, headings, paragraph and subparagraph numbers and letters are solely for reference purposes and shall not be deemed to be supplementing, limiting, or otherwise varying the text of this Agreement. The parties hereto hereby acknowledge and agree that: (i) each party hereto is of equal bargaining strength; (ii) each such party has actively participated in the drafting, preparation, and negotiation of this Agreement; (iii) each such party has had the opportunity to consult with its own independent counsel, and such other professional advisors as it has deemed appropriate, relating to any and all matters contemplated under this Agreement; (iv) each such party has reviewed this Agreement and has agreed to enter into this Agreement following such review; and (v) any rule of construction to the effect that ambiguities are to be resolved against the drafting parties shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. 23. Definitions. Capitalized terms not otherwise defined in the body of this Agreement have the meaning set forth as follows: “Force Majeure Event” shall mean an event or circumstance which is beyond the control and without the fault or negligence of the party affected, such as the following: (a) riot, war, acts of terrorism, or similar armed conflict, (b) earthquakes, floods, fires, tornadoes, hurricanes, or other physical natural disaster, (c) strikes, labor disputes, or shortages of materials at a national level, and delays due to approvals, permits, licenses and other entitlements to be issued with regard to the Property and the Intended Use, (d) court orders, rulings or judgments in litigation pursued by non parties to this Agreement impairing Seller’s or Purchaser’s ability to perform under the Agreement. 24. Severability. The invalidity or unenforceability of a particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 25. Entire Agreement. Time is of the essence of this Agreement. This Agreement constitutes the sole and entire agreement of the parties and is binding upon Seller and Purchaser, their heirs, successors, legal representatives and assigns. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions, or remedies to any person or entity as a third-party beneficiary. This Agreement supersedes any prior agreements, negotiations, and communications, oral or written, between Purchaser and Seller as to the purchase and sale of the Property. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent, or representative of either party shall be of any effect unless it is in writing and executed by the party to be bound thereby. 26. Date for Performance. If the time period by which any right, option, or election provided under this Agreement must be exercised, or by which any act required hereunder must be performed, or by which the Closing must be held, expires on a Saturday, Sunday or legal or bank holiday, then such time period shall be automatically extended through the close of business on the next regularly scheduled business day. 27. Date of Agreement. This Agreement shall become effective only upon the full execution thereof by Purchaser and Seller and delivery of a copy Escrow Agent ( “Effective Date”) . 28. Closing Responsibility. Seller and Purchaser hereby appoint Escrow Agent, and Escrow Agent hereby agrees to act, as “the person responsible for closing” the transaction which is the subject of this Agreement (as the same may be amended from time to time) pursuant to Section 6045(e) of the Internal Revenue Code. 29. Survival of Covenants. The covenants, representations, and warranties of the parties set forth in this Agreement which are expressly provided in this Agreement to survive Closing, shall survive the recordation of the Deed and the Close of Escrow and shall not be deemed merged into the Deed upon its recordation. 30. Required Actions of Purchaser and Seller. Purchaser and Seller agree to execute such instruments and documents and to diligently undertake such actions as may be required to consummate the purchase and sale herein contemplated and shall use good faith efforts to accomplish the Close of Escrow in accordance with the provisions hereof. 31. Limitation on Seller’s Liability. Purchaser agrees that Seller shall not have any liability, obligation or responsibility of any kind with respect to the content or accuracy of any Seller Information. 32. Seller’s Representations. In consideration of Purchaser entering into this Agreement and as an inducement to Purchaser to acquire the Property from Seller, Seller makes the following representations and warranties, each of which is material, shall be true and accurate as of the Effective Date and as of Close of Escrow as if those representations and warranties were made on and as of such time, and is being relied upon by Purchaser (the continued truth and accuracy of which shall constitute a condition precedent to Purchaser’s obligations hereunder): (a) Authority. Seller has the full power and authority to sell the Property, and has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement have been duly and validly authorized, executed and delivered by Seller and no other authorization or action is requisite to the valid and binding execution, delivery and performance of this Agreement by Seller. (b) Third Party Consents. No consents or waivers of or by any third party are necessary to permit the consummation by Seller of the transactions contemplated pursuant to this Agreement. The Property does not contain any PS Spaces as defined in the Stadium Parking Settlement Agreement. (i) Verification. To the best of Seller’s knowledge: (i) all statements made and all information given to Purchaser in connection with this Agreement are true and accurate in every material respect and no material fact with respect thereto has been withheld from the Purchaser; (ii) no representation or warranty of Seller in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements not misleading; and (iii) Seller has no knowledge or information of any facts, circumstances, or conditions which do or would materially adversely affect the Property, except as Seller otherwise discloses to Purchaser in writing during the Inspection Period. (ii) Adverse Matters. There are no: (i) claims, actions, suits, condemnation actions, or other proceedings pending or, to the knowledge of Seller, threatened by any entity; (ii) approvals, permits, easements, rights-of-way, zoning changes, uses or rights that have been denied or to the knowledge of Seller may be denied, by any governmental department or agency; or (iii) to the knowledge of Seller, violations of any law, statute, government regulation or requirement, that in any manner or to any extent may materially and adversely affect the Property, Purchaser’s Intended Use of the Property, or Purchaser’s right, title or interest in and to the Property. (iii) Agreements. Except as already disclosed to Purchaser, Seller is not a party to or a participant in, and to the actual knowledge of Seller no previous or other proposed owner or developer of the Property is a party to or a participant in, any agreement (including but not limited to any kind of shared expense agreement, repayment agreement, reimbursement agreement, development payback agreement or joint development agreement) or understanding with or commitment in favor of the City of Glendale, Maricopa County, any other Federal, state or local governmental or regulatory agency or entity, any school district, any utility company, any other property owner, developer or proposed owner or developer, or any similar person or entity, that might now or in the future impose or result in or be deemed to impose or result in costs, claims, obligations, responsibilities, restrictions, disapprovals, penalties or adverse effects of any nature materially affecting the Property or the development of the Property or the owner or developer of the Property, except as is disclosed on the Title Commitment or the Seller Information or as has been fully disclosed in writing to Purchaser. (c) Notices. Seller shall promptly provide Purchaser with copies of any written notices it receives as owner of the Property from any governmental entity, utility, improvement district, or other person of any new (or increases in existing) development fees, impact fees, assessments or other fees or charges that will be levied (or are under consideration by any such entity) or of any other matter that would materially affect Purchaser’s ownership, development or Intended Use of the Property. 33. Purchaser’s Representations and Warranties. In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Property to Purchaser, Purchaser makes the following representations and warranties, each of which is material and is being relied upon by Seller (the continued truth and accuracy of which shall constitute a condition precedent to Seller’s obligations hereunder): (a) Authority. Purchaser has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Purchaser is requisite to the valid and binding execution, delivery and performance of this Agreement by Purchaser. (b) Representations. All representations and warranties of Purchaser set forth in this Agreement shall be true on and as of the Close of Escrow as if those representations and warranties were made on and as of such time. 34. Specially Designated Nationals And Blocked Persons List. Each party represents and warrants to the other party that neither the party nor any Representative of such party (i) is listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, Department of the Treasury (“OFAC”) pursuant to Executive Order number 13224, 66 Federal Register 49079 (September 25, 2001) (the “Order”); (ii) is listed on any other list of terrorists or terrorist organizations maintained pursuant to the Order, the rules and regulations of the OFAC or any other applicable requirements contained in any enabling legislation or other executive orders in respect of the Order (the Order and such other rules, regulations, legislation or orders are collectively in this Section 35 called the “Orders”); (iii) is engaged in activities prohibited in the Orders; or (iv) has been convicted; pleaded nolo contendere, indicted, arraigned or custodially detained on charges involving money laundering or predicate crimes to money laundering. For purposes of this Section 35 only, the term “Person” shall mean an individual, corporation, partnership, joint venture, association, firm, joint stock company, trust, limited liability company, unincorporated association or other entity; and the term “Representative” shall mean the officers, directors, shareholders, partners, council members, board members, staff, committee members, planning and other commissioners, officials, employees, members, agents, principals, independent contractors, attorneys, accountants and representatives of the referenced Person and the predecessors, heirs, successors and assigns of any such Person. 35. Additional Terms and Consideration (a) Performance Bond. Purchaser agrees that it will require that the general contractor with which it contracts to construct the parking garage on the Property to procure a performance bond, issued by no less than an A rated company authorized to conduct business as a surety in the State of Arizona, in an amount not less than the penal sum of the construction contract between Purchaser and contractor. The Performance Bond shall be issued utilizing the AIA A312 bond form and naming the contractor as the bond principal, the Purchaser as the Owner/Obligee and the City of Glendale as a co-obligee or dual obligee, and with an effective date concurrent with the closing of the purchase and sale agreement. Purchaser shall present the proposed bond form to Seller for approval. (b) Plan Review and Inspection Fees. Purchaser will pay any City any and all fees related to the design, construction and occupancy of the Proposed Development, including any fees for permits, reviews, inspections, record retention, planning, barricade, etc listed in the City of Glendale’s Community Development Fee Schedule (“Fees”). The City agrees to waive any such Fees in an amount not to exceed $50,000 in exchange for Purchaser’s satisfactory performance of its obligations under this Agreement. Purchaser acknowledges that the Fees waived do not include development impact fees and agrees to pay all development impact fees related to the Proposed Development. (c) Intentionally omitted. (d) Intentionally omitted. (e) Intentionally omitted. (f). Purchaser’s Right of First Refusal. Under the terms of this Agreement, Purchaser is buying approximately 359,370 sq. ft. (8.25 acres) of the 19.7 acres of vacant real property located generally on the eastern side of Maricopa County Parcel No. APN 102-13-072. The Parties hereby agree that Purchaser has the right of first refusal to purchase the remaining approximately 11.45 acres of vacant land within that Parcel subject to the following conditions: (ii) Purchaser complies with any terms and conditions, if any, that apply to the parcel pursuant to the Stadium Parking Settlement Agreement; (ii) Purchaser is not otherwise in breach of this Agreement; and (iii) Purchaser shall notify Seller of its development plans for the Property. Purchaser’s right of first refusal granted under this provision shall expire on the 2-year anniversary of the Effective Date of this Agreement. If Purchaser exercises said right prior to December 31, 2024 by providing written notice to Seller on or before said date, the purchase price shall be based upon a price of $21/sf. If Purchaser exercises said right after December 31, but prior to the 2-year anniversary of the Effective Date of this Agreement, the purchase price shall be mutually agreed by the parties. (g) Plan Review and Inspection Fees. Purchaser will pay any City any and all fees related to the design, construction and occupancy of the Proposed Development, including any fees for permits, reviews, inspections, record retention, planning, barricade, etc listed in the City of Glendale’s Community Development Fee Schedule (“Fees”). The City agrees to waive any such Fees in an amount not to exceed $50,000 in exchange for Purchaser’s satisfactory performance of its obligations under this Agreement. Purchaser acknowledges that the Fees waived do not include development impact fees and agrees to pay all development impact fees related to the Proposed Development. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set out below their respective signatures. “SELLER” CITY OF GLENDALE an Arizona municipal corporation By: Name: ________________________ Title: ________________________ “PURCHASER Vai Resorts, LLC, An Arizona Limited Liability company By: Name: ____________________________ Title: ____________________________ Date: Date: APPROVED AS TO FORM ______________________________ Michael D. Bailey, City Attorney ATTESTED _____________________________ Julie K. Bower, City Clerk Acceptance by Escrow Agent: Fidelity National Title hereby acknowledges that it has received a fully executed counterpart of the Agreement and agrees to act as Escrow Agent thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Agent. Fidelity National Title By: Name: Its: Date: EXHIBIT A DESCRIPTION OF PROPERTY [See Attached] EXHIBIT B WHEN RECORDED MAIL THIS SPECIAL WARRANTY DEED TO: (Space Above for Recorder’s Use) SPECIAL WARRANTY DEED CITY OF GLENDALE, an Arizona municipal corporation (“Grantor”), for and in consideration of the Ten Dollars ($10.00), in hand paid to Grantor by ___________________________, a ______________________company (“Grantee”), and other good and valuable consideration, the receipt and sufficiency of which consideration are hereby acknowledged, hereby assigns, conveys, grants, transfers and delivers to Grantee all that certain land situated in Maricopa County, Arizona, and described on Exhibit “A” attached hereto and made a part hereof for all purposes (the “Property”). SUBJECT ONLY TO: current taxes, assessments, and those certain reservations in patents, liens, encumbrances, covenants, conditions, restrictions, rights of way, easements, obligations and liabilities as may appear on Schedule B attached hereto and made a part hereof. GRANTOR HEREBY binds itself and its successors and assigns to warrant and defend the title against all acts of the Grantor, and none other, subject to the matters above set forth. EXECUTED as of the _______ day of _________________, 201__. GRANTOR: CITY OF GLENDALE, an Arizona municipal corporation By: Exhibit — Do Not Sign Name: Its: [add notary acknowledgment and exhibit]