Agreement with VAI Resorts, LLC
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WHEN RECORDED RETURN TO: Office of the City Clerk City of Glendale, Arizona 5850 West Glendale Avenue Glendale, Arizona 85301 AMENDED AND RESTATED DEVELOPMENT AGREEMENT CITY OF GLENDALE, ARIZONA, an Arizona municipal corporation AND VAI RESORTS, LLC an Arizona limited liability company October ____, 2024 1 AMENDED AND RESTATED DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (the “Agreement”) is made as of the _____ day of October, 2024, by and between the City of Glendale, Arizona, an Arizona municipal corporation (“City”); and VAI Resorts, LLC, an Arizona limited liability company (“Company”). City and Company are sometimes referred to herein collectively as the “Parties,” or individually as a “Party.” RECITALS A. The Company is the owner of approximately 60-acres of unimproved real property located in the City of Glendale, Maricopa County (the “County”), Arizona, as more particularly described on Exhibit A (the “Property”). B. The Company intends to develop the Property as a mixed-use destination containing specialty retail, restaurants, hospitality, class A office space, and live entertainment venues, swimming pools and an artificial bathing lake (collectively, the “Project”). C. The Project complies with the purpose, intent and requirements of the City’s General Plan. The Property is currently zoned Planned Area Development (“PAD”) in case ZON- 19-13, approved on January 28, 2020, under the City’s Zoning Ordinance, which zoning designation generally allows the uses contemplated by this Agreement. D. The Parties acknowledge that the Project qualifies as a business expansion economic development project; that the Project will assist in the creation and retention of jobs and will otherwise improve and enhance the economic welfare of the residents of the City by timely expanding retail, educational and civic uses and public amenities in the City, increasing access to goods and services, increasing the City’s assessed property valuation, stimulating further economic development in the City, constructing public infrastructure improvements, and generating additional sales tax revenues; that the business expansion incentives agreed to by City in this Agreement will in fact serve legitimate economic development purposes as authorized by A.R.S. §9-500.11; and will generally enhance the economic welfare and recreation of the city’s citizens. E. As a condition of, and concurrent with, development of the Property, and subject to and in accordance with the other provisions and requirements of this Agreement, Company intends and has the ability to finance, construct and complete the Private Improvements, and to otherwise accomplish all of the Company Obligations. F. City also acknowledges its intention and ability to perform the City Obligations described in, and subject to the other provisions and requirements of, this Agreement. G. The Parties understand and acknowledge that this Agreement is a “Development Agreement” within the meaning of, and entered into pursuant to the terms of, A.R.S. § 9-500.05, and that the terms of this Agreement will constitute covenants running with the Property as more fully described in this Agreement, and that, in accordance A.R.S. § 9-500.05, it shall be recorded against the interest of the Company in the Property in the Office of the Maricopa County Recorder to give notice to all persons of its existence and of the parties’ intent that the burdens and benefits 2 contained herein be binding on and inure to the benefit of the parties and all their successors in interest and assigns. H. The Parties entered into that certain Development Agreement as of September 28, 2020 (the “Original Development Agreement”), which Original Development Agreement was recorded in the Official Records of Maricopa County, Arizona as 2020-0919698. I. Concurrently with the recording of the Original Development Agreement, the Parties recorded two Government Property Improvement Leases, both entered into effective as of September 28, 2020 which leases were recorded in the Official Records of Maricopa County, Arizona as 2020-0917703 and 2020-0917670 (collectively, the “Original GPLET Leases”). J. As of the date hereof, construction of the Project has not been completed and the Parties prematurely filed the Original GPLET Leases. K. In order to unwind the premature filing of the Original GPLET Leases, and to terminate the Original GPLET Leases, a Termination of Government Property Improvement Leases dated August 16, 2022 was recorded in the Official Records of the Maricopa County Recorder as #20220858028 (“Termination of GPLET Leases”). L. The Parties no longer desire to pursue the Government Property Lease Excise Tax Leases in connection with the Property and the Project. M. The Property is now owned by VAI Resorts, LLC, and the Parties have agreed to amend and restate the Amended and Restated Development Agreement to reflect the ownership change and to amend and update various provisions in said Agreement. N. City is entering into this Amended and Restated Development Agreement to implement and to facilitate development of the Property consistent with the policies of the City and the City’s General Plan. AGREEMENT Now, therefore, in consideration of the foregoing recitals and representations and the mutual promises contained in this Agreement, the Parties agree as follows: 1. DEFINITIONS. In this Agreement (including the Recitals), unless a different meaning clearly appears from the context: (a) “ADWR” means the Arizona Department of Water Resources. (b) “Agreement” means this Amended and Restated Development Agreement, as amended and restated or supplemented in writing by the Parties from time to time and includes all exhibits and schedules hereto. References to Sections or Exhibits are to this Agreement unless otherwise qualified. The Recitals set forth in Paragraphs A through N, inclusive, are incorporated into this Agreement by reference, and form a part of this Agreement. 3 (c) “Applicable Laws” means the federal, state, County and City statutes, codes (including the City Charter), ordinances, rules, regulations, permit requirements, judgments, orders, decrees, and other official written requirements and policies, any requirements or rules of common law and any judicial or administrative interpretations thereof, which affect the subject matter of this Agreement or apply to the development of the Property, all as they may be amended from time to time. (d) “Approved Plan” means as defined in Section 3.1(a). (e) “A.R.S.” means the Arizona Revised Statutes as amended from time to time. (f) “City Code” means the Code of the City of Glendale, Arizona, as amended from time to time. (g) “City Representative” means as defined in 9.1. (h) “Commencement of Construction” or “Commences Construction” means that both of the following have occurred (i) the obtaining of permits by Company that are required to begin the construction of vertical improvements on the Property, and (ii) the actual commencement of physical construction operations on the Property in a manner necessary to achieve Completion of Construction. (i) “Company” means VAI Resorts, LLC (j) “Company Representative” means as defined in 9.1. (k) “Completion of Construction” or “Completes Construction” means the issuance of a final certificate of occupancy by the City for the first Component exceeding One Hundred Thousand (100,000) square feet in size. (l) “Completion of Construction Date” means on or before March 31, 2027, as described in the Site Plan; provided, however, the date is subject to the extent delayed by Force Majeure. (m) “Component” means a building or amenity set forth in the Site Plan. (n) “County” means as defined in Recital A. (o) “Custom Review Schedule” means as defined in Section 5.5. (p) “Default” or “Event of Default” means one or more of the events described in Section 8.1 or Section 8.2; provided, however, that such events will not give rise to any remedy until effect has been given to all Cure Periods and/or periods of Force Majeure provided for in this Agreement. (q) “Effective Date” means the date on which all the following events have occurred: (i) this Amended and Restated Development Agreement has been adopted and approved 4 by the City Council, executed by the authorized representatives of the City Council; (ii) this Amended and Restated Development Agreement shall have been executed by the duly authorized representatives of Company; and (iii) this Amended and Restated Development Agreement shall have been recorded in the office of the Recorder of the County. (r) “Fees” means as defined in Section 5.6. (s) “Force Majeure” means and shall be limited to: an event which is beyond the complete control of the Company and which causes a delay or failure to perform obligations hereunder, including without limitation acts of God, earthquake, fire, explosion, war, civil insurrection, acts of the public enemy, acts of civil or military authority, sabotage, terrorism, floods, lightning, hurricanes, tornadoes, severe snow storms, utility disruption, pandemic, failure of a major supplier to perform its obligation to the Company not arising out of or involving a failure toward such supplier by the Company, strikes, lockouts or other labor disputes with respect to which the Company has not been determined by the National Labor Relations Board to have engaged in any unfair labor practices. (t) “Lender” or “Lenders” means as defined in Section 10.23. (u) “Original Development Agreement” means as defined in Recital H. (v) “PAD” means as defined in Recital C. (w) “Person” means and includes natural persons, corporations, limited partnerships, general partnerships, joint stock companies, joint venture associations, limited liability companies, limited liability partnerships, trusts, land trusts, business trusts or other organizations, whether or not legal entities. (x) “Private Improvements” means any improvements constructed at the Property as part of the Project, as generally depicted in the Site Plan and Development Narrative. (y) “Project” means as defined in Recital B. (z) “Property” means as defined in Recital A. (aa) “Public Improvements” means any improvements constructed outside the Property within public rights-of-way, as generally depicted in the Site Plan, Traffic Impact Study, and Development Narrative. (bb) “Term” means as defined in Section 2.3 hereof. (cc) “Zoning” means ZON-19-13 approved on January 28, 2020, under the City of Glendale’s Zoning Ordinance. 5 2. PARTIES, PURPOSE AND TERM OF THIS AGREEMENT. 2.1. Parties to the Agreement. The Parties to this Agreement are City and the Company. (a) The City. City is the City of Glendale, Arizona, a municipal corporation and a political subdivision of the State of Arizona, duly organized and validly existing under the laws of the State of Arizona, exercising its governmental functions and powers. (b) The Company. The Company is a limited liability company duly organized and validly existing under the laws of the State of Arizona. 2.2. Purpose. The purpose of this Agreement is to provide for the development of the Property in accordance with its terms; to provide for the Company Obligations; to provide for the corresponding City Obligations, including the commitment to make all commercially reasonable efforts to provide the water resources for the Project; and to address other matters related to the development of the Project. 2.3. Term. Notwithstanding anything in this Agreement to the contrary, the term of this Agreement (“Term”) shall begin on the Effective Date and shall terminate twenty-five (25) years from the date of execution of this Agreement, unless this Agreement is terminated sooner pursuant to any other termination provision of this Agreement. 2.4. Survival of Certain Provisions. Notwithstanding the termination of this Agreement as set forth in Section 2.3, the indemnity, duty to defend, and hold harmless obligations in Section 10.1 and elsewhere in this Agreement shall survive the expiration of this Agreement. 3. DEVELOPMENT PLAN APPROVAL AND REGULATION. 3.1. Development Plans. (a) Development Plan Review and Approval. The Site Plan, elevations, design plans, landscape plans and any other development plans and items typically submitted to governmental agencies in conjunction with the development are subject to approval by the City prior to issuance of building permits through the City’s standard design review process. The City shall review Company’s site plans, elevations, landscape plans, design plans and any other submittals promptly for approval according to the Custom Review Schedule (each an “Approved Plan”) and Applicable Laws. (b) Cooperation in the Implementation of Approved Plans. Company and City will work together throughout the pre-development and development stages to resolve any City comments regarding implementation of Approved Plans. 3.2. Development Regulation. (a) Applicable Laws. Company will comply with all Applicable Laws and shall obtain all regulatory permits and approvals, including, but not limited to, permits or 6 approval from ADWR, ADOT, ADEQ, US EPA, Army Corps of Engineers and the US Bureau of Reclamation, in developing the Property. (b) Permit and Other Fees. Building permit, inspection, impact, development and other similar fees for the development of the Property will be those in effect at the time of any application or submission. 4. COMPANY OBLIGATIONS. Company hereby agrees to the Company Obligations as follows: 4.1. Development of the Project. (a) The Company will acquire, construct, furnish, equip, operate, maintain, repair and replace all aspects, and each Component of the Project (including, without limitation, any required infrastructure) as shown on the Site Plan and Development Narrative (the “Site Plan”) attached hereto as Exhibit C. The Company intends and agrees to operate the Project at the Property for a continuous period of at least twenty-five (25) years from the Completion of Construction Date. 4.2. Anticipated Schedule of Development. Company shall develop the Project in compliance with the terms of this Agreement. Company may, with the prior written approval of the City, such approval shall not be unreasonably, withheld, conditioned or delayed, revise its development schedule, and may, with the prior written approval of the City, such approval shall not be unreasonably, withheld, conditioned or delayed, revise its development plans to accommodate other unforeseen factors, events or unexpected occurrences such as, among other things, market considerations, adverse interest rates or other market factors adversely affecting the economic feasibility of development of the Project. 4.3. Property Rights Dedication. As required by this Agreement, the Company agrees that it will convey certain property rights to the City or third parties (i) any right-of-way easements lying adjacent to the public roads within the Project, (ii) any necessary drain easements or runoff waters to discharge into public detention basins and (iii) any necessary utility easements. Any conveyance shall be at no cost to the City. 4.4. Project Amenities. Company will, as part of the overall development of the Project, construct the following amenities: 4.4.1 THEATER (a) Condition Precedent. The obligations in this Section 4.4.1 are contingent upon Company completing construction no later than April 1, 2027. Until Company commences construction of the Project, the City is not required to perform any obligations described in this Section. (b) Scope of the Project. Company shall construct and operate an indoor theater (“Theater”) at the Property that will be approximately one hundred and eighty thousand (180,000) square feet in size with a capacity of approximately two thousand (2,000) seats and offer live performances, 7 Broadway shows, music artists, comedians, movie premieres and magic shows and to make the theater available for use by third parties. (c) Fee Waivers. The City agrees to waive permit, plan review and any expedited plan review fees in connection with the Company’s timely construction of the Theater up to a maximum of One Million Dollars ($1,000,000.00), based upon the City’s adopted fee schedule in effect when such fees would otherwise be owed. The Company is responsible to pay any permit, plan review and/or expedited plan review fees for the construction of the Theater in excess of One Million Dollars ($1,000,000.00). (d) Expansion of Project: In the event that the Theater is expanded or any additional improvements of any kind or nature are added to the Theater, whether as a part of the initial construction thereof or at a subsequent time (each an “Expansion”), which requires City review or permitting, any credits of Fees shall be applicable to such Expansion, so long as such Expansion occurs within three (3) years of the Effective Date of this Agreement. (e) Development Impact Fees. Company acknowledges the Fees do not include development impact fees, and Company agrees it will pay all development impact fees related to the Theater. (f) City Events. The City shall have the right to use the Theater for up to ten (10) days per Year for civic, youth and recreation events and programs (“City Events”). The City shall not be charged for the use of the Theater but shall be solely responsible for reimbursing the Company for any operating costs and expenses incurred by the Company as a result of the City’s use of the Theater. The dates during which the City may use the Theater for City Events shall be selected by mutual agreement of the parties; provided, however, that if the parties cannot agree on the dates, the Company’s reasonable selection of dates shall be final and controlling, but shall take into account in good faith the interests of the City and the City Event after taking into account available dates when the Theater is not otherwise being used by the Company. Notwithstanding any provisions to the contrary contained in this Agreement, the City may not use the Theater for any events that would compete with any revenue-generating events which may be arranged, staged, or produced by the Company; provided, however, that if the City proposes an event that Company disapproves as being a competing revenue-generating event, the Company must agree either (a) to conduct the event in accordance with the City’s plan for the event, or (b) to allow the City to conduct the event as a City Event. Moreover, the City’s use of the Theater for a City Event must not interfere in any way with the Company’s use and quiet enjoyment of the Theater. The City shall (i) not use or authorize the use of the Theater in any manner that would damage any portion of the Theater or have a material 8 detrimental impact on the Theater or any portion thereof, (ii) take such measures as are reasonably requested by Company to prevent damage to the Theater or any portion thereof, and (iii) be and remain solely responsible for any damage or destruction to the Theater or any portion thereof (including, without limitation, the Theater Equipment therein). (g) The City shall be entitled to retain the revenues from ticket sales and concessions sold during, City Events. If the City determines that such services are required for a City Event, the City shall use the Company’s concession services, ticketing services, and/or other services for a City Event. The Company shall charge the City for such services the same charges that are charged to the Company for events at the Theater. The Company shall be reimbursed by the City for any operating costs and expenses incurred by the Company as a result of the City’s use of the Theater, including, but not limited to, the cost of any ticket takers, security personnel, set-up or clean-up crews, concessionaire personnel, ticketing costs, such as credit card fees and printing costs, and the like provided by the Company. All such costs shall be the same charged for Company’s events played at the Theater. Following the completion of a City Event, the City must turn the Theater over to the Company’s control in the same condition as prior to the City Event, subject to reasonable wear and tear. 4.4.2 CONVENTION CENTER (a) Condition Precedent. The obligations in this Section 4.4.2 are contingent upon Company completing construction no later than October 1, 2026. Until Company commences construction of the Project, the City is not required to perform any obligations described in this Section. (b) Scope of the Project. Company shall construct and operate a full- service convention and conference center (“Convention Center”) at the Property that will be approximately two hundred thousand (200,000) square feet in size, with approximately ninety thousand square feet of functional meeting or event space, thirty-four (34) meeting rooms and the ability to hold individual events for up to approximately one thousand three hundred (1,300) people. (c) Fee Waivers. The City agrees to waive permit, plan review and any expedited plan review fees in connection with the Company’s timely construction of the Convention Center up to a maximum of One Million Dollars ($1,000,000.00), based upon the City’s adopted fee schedule in effect when such fees would otherwise be owed. The Company is responsible to pay any permit, plan review and/or expedited plan review fees for the construction of the Convention Center in excess of One Million Dollars ($1,000,000.00). 9 (d) Expansion of Project: In the event that the Convention Center is expanded or any additional improvements of any kind or nature are added to the Convention Center, whether as a part of the initial construction thereof or at a subsequent time (each an “Expansion”), which requires City review or permitting, any credits of Fees shall be applicable to such Expansion, so long as such Expansion occurs within three (3) years of the Effective Date of this Agreement. (e) Development Impact Fees. Company acknowledges the Fees do not include development impact fees, and Company agrees it will pay all development impact fees related to the Convention Center. (f) City Events. The City shall have the right to use the Convention Center for up to ten (10) days per Year for civic, youth and recreation events and programs (“City Events”). The City shall not be charged for the use of the Convention Center but shall be solely responsible for reimbursing the Company for any operating costs and expenses incurred by the Company as a result of the City’s use of the Convention Center. The dates during which the City may use the Convention Center for City Events shall be selected by mutual agreement of the parties; provided, however, that if the parties cannot agree on the dates, the Company’s reasonable selection of dates shall be final and controlling, but shall take into account in good faith the interests of the City and the City Event after taking into account available dates when the Convention Center is not otherwise being used by the Company. Notwithstanding any provisions to the contrary contained in this Agreement, the City may not use the Convention Center for any events that would compete with any revenue-generating events which may be arranged, staged, or produced by the Company; provided, however, that if the City proposes an event that Company disapproves as being a competing revenue- generating event, the Company must agree either (a) to conduct the event in accordance with the City’s plan for the event, or (b) to allow the City to conduct the event as a City Event. Moreover, the City’s use of the Convention Center for a City Event must not interfere in any way with the Company’s use and quiet enjoyment of the Convention Center. The City shall (i) not use or authorize the use of the Convention Center in any manner that would damage any portion of the Convention Center or have a material detrimental impact on the Convention Center or any portion thereof, (ii) take such measures as are reasonably requested by Company to prevent damage to the Convention Center or any portion thereof, and (iii) be and remain solely responsible for any damage or destruction to the Convention Center or any portion thereof (including, without limitation, the Convention Center Equipment therein). (g) The City shall be entitled to retain the revenues from ticket sales and concessions sold during, City Events. If the City determines that such services are required for a City Event, the City shall use the Company’s concession services, ticketing services, and/or other services for a City 10 Event. The Company shall charge the City for such services the same charges that are charged to the Company for events at the Convention Center. The Company shall be reimbursed by the City for any operating costs and expenses incurred by the Company as a result of the City’s use of the Convention Center, including, but not limited to, the cost of any ticket takers, security personnel, set-up or clean-up crews, concessionaire personnel, ticketing costs, such as credit card fees and printing costs, and the like provided by the Company. All such costs shall be the same charged for Company’s events played at the Convention Center. Following the completion of a City Event, the City must turn the Convention Center over to the Company’s control in the same condition as prior to the City Event, subject to reasonable wear and tear. 4.5. Company shall be solely responsible for all costs and expenses, direct and indirect, associated with the construction and operation of the Project, including the amenities described in Section 4.4 herein. 4.6. Use. The Company may use the Property for any legally permissible use, subject to Zoning and permitting and the terms of this Agreement. 4.7. Clawback. The Company shall have the right to terminate this Agreement, with or without cause, prior to the Commencement of Construction of the Project. However, once Construction Commences, Company shall complete all such construction in accordance with the Site Plan and any applicable permit and/or approval as amended and approved by the Parties from time to time. (a) In the event the Company terminates the Agreement in accordance with this Section, then to the extent that the Company has commenced construction of the Project, the Company shall pay to the City such amounts necessary to reimburse the City for Fees payable to the City which have been waived pursuant to this Agreement. 5. CITY OBLIGATIONS. If Company timely performs the applicable Company Obligations, then City will perform the corresponding City Obligations as follows: 5.1. City Council Action Requirement. The City and the Company acknowledge, notwithstanding any language of this Agreement or any subsequent additional document, that no act, requirement, payment or other agreed-upon action to be done or performed by the City which would, under any federal, state or city constitution, statute, charter provision, ordinance or regulation, require formal action, approval or concurrence by the City Council, will be required to be done or performed by the City unless and until said formal City Council action has been taken and completed. “Completion” under this provision means that such City Council action is no longer subject to referendum action. 5.2. Development Rights. The City agrees that, for the term of this Agreement, the Company and successor owners of the Property shall have a right to undertake and complete the development and use of the Property in accordance with this Agreement, without being subject to subsequent amendment to the City's Zoning Ordinance except future ordinances, rules, 11 regulations and official policies of City enacted as necessary to comply with mandatory requirements of state and federal laws or regulations whose primary purpose is to alleviate legitimate threats to public health or public safety, provided that in the event any such mandatory requirement prevents or precludes compliance with this Agreement such affected provision(s) of this Agreement shall be modified as may be necessary to achieve the minimum mandatory requirements of such state laws or regulations. For purposes of this Agreement, the Development Plan and PAD zoning for the Property are deemed vested for the term of this Agreement. Nothing herein affects the vesting of the Development Plan and PAD zoning for the Property as a matter of common law following termination of this Agreement. During the term of this Agreement, unless mutually agreed by the City and the Company’s or its designated assignee, development of the Property shall be governed by the Site Plan, the City Zoning Ordinance, and PAD zoning in effect at the time of approval of this Agreement. 5.3. Rezoning and Development Agreement Amendments. The City shall not initiate any changes or modifications to the current PAD zoning that may adversely affect the Company’s use of the Property, except at the request of the Company. The City shall not initiate any changes or modifications to the design review approval for the Property, once such approval is final, except at the request of the Company. Any such request by the Company for a change will be processed in the manner then set forth in the City’s Zoning Ordinance. 5.4. Approval of Development Plan. The City acknowledges and agrees that the Site Plan is in substantial conformance with the PAD zoning, and that the Property may be developed in substantial conformance with the Site Plan. 5.5. Expedited City Review. The City shall design a customized plan review and permitting schedule for the Company that will facilitate the phasing off-plan reviews and permitting to accelerate construction of the Project (the “Custom Review Schedule”). 5.6. Fee Waiver. Company will pay any City fees related to the design and construction of the Project, including any Public Improvements, or the issuance of a certificate of occupancy for the Project, including, permits, reviews (which shall only be charged at ordinary rates and without premium even if performed after hours or on weekends), inspections (including expedited and after hours/weekends), code modification/formal interpretations, record retention, planning, barricade, and other fees listed in the City of Glendale Community Development Fee Schedule (collectively, “Fees”). The City agrees to waive any such Fees in an amount not to exceed Four Million Dollars ($4,000,000) in exchange for Company’s performance of its obligations under this Agreement. The Company acknowledges the Fees do not include development impact fees, and the Company agrees it will pay all development impact fees related to the Project. 5.7. Water Commitment. City agrees that as soon as practicable after the completion of construction of the bodies of water and pools at the Project, that the City will undertake all commercially reasonable efforts to provide water resources in a quantity sufficient to fill the bodies of water and pools. Any costs or expenses associated with any permits required for the City to provide water resources shall be paid for by Company. Furthermore, the provision of water shall be subject to all Applicable Laws in addition to any City, County, State or Federal water conservation plans that may be instituted city-wide during the term of this Agreement. 12 6. CITY REPRESENTATIONS. City represents and warrants to Company that: 6.1. City has the full right, power and authority to enter into this Agreement and perform this Agreement and each of the obligations and undertakings of City under this Agreement, and City’s execution, delivery and performance of this Agreement have been duly authorized and agreed to in compliance with the requirements of the City Code. 6.2. All consents and approvals necessary to the execution, delivery and performance of this Agreement by City have been obtained, and no further action needs to be taken in connection with City’s execution, delivery and performance of this Agreement. 6.3. As of the date of this Agreement, City knows of no litigation, proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of City or its officials with respect to this Agreement that has not been disclosed in writing to Company. 6.4. The execution, delivery and performance of this Agreement by City is not prohibited by, and does not conflict with, any other agreements, instruments or judgments or decrees to which City is a party or is otherwise subject. 6.5. No member, official or employee of the City has had any direct or indirect interest in this Agreement and has not participated in any decision relating to the Agreement that is prohibited by law. The Parties acknowledge that this Agreement is subject to cancellation pursuant to the provisions of A.R.S. §38-511. 6.6. City has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 7. COMPANY REPRESENTATIONS. Company represents and warrants to City that: 7.1. Company has the full right, power and authority to enter into and perform this Agreement and each of the obligations and undertakings of Company under this Agreement, and the execution, delivery and performance of this Agreement by Company has been duly authorized and agreed to in compliance with the Company’s organizational documents. 7.2. All consents and approvals necessary to Company’s execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with Company’s execution, delivery and performance of this Agreement. 7.3. As of the date of this Agreement, Company knows of no litigation, proceeding or investigation pending or threatened against or affecting Company contesting the validity or enforceability of this Agreement or Company’s performance under this Agreement. 7.4. The execution, delivery and performance of this Agreement by Company is not prohibited by, and does not conflict with, Company’s organizational documents or any other 13 agreements, instruments, judgments or decrees to which Company is a party or to which Company is otherwise subject. 7.5. Company has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, consultants, engineers and attorneys and any licensed real estate broker retained by the Company. 7.6. Company has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 7.7. Company has adequate financing and financial resources to complete the Project and comply with all of its obligations contained herein. 8. EVENTS OF DEFAULT; REMEDIES. 8.1. Events of Default by Company. “Default” by Company under this Agreement will mean one or more of the following: (a) Any representation or warranty made in this Agreement by Company was both material and materially inaccurate when made; (b) Company fails to observe or perform any covenant, obligation or agreement required of it under this Agreement after notice, after the expiration of any applicable Cure Period, and after the opportunity to cure as set forth in this Agreement; (c) Company fails to maintain adequate financial or financial resources to complete the Project or meet its obligations as contained herein. 8.2. Events of Default by City. Default or an Event of Default by City under this Agreement will mean one or more of the following: (a) Any representation or warranty made in this Agreement by City was both material and materially inaccurate when made; (b) City fails to observe or perform any covenant, obligation or agreement required of it under this Agreement after notice, after the expiration of any applicable Cure Period, and after the opportunity to cure as set forth in this Agreement. 8.3. Cure Periods; Notice and Cure. Upon the occurrence of a Default by any Party, such Party will, upon written notice from the other Party, proceed promptly to cure or remedy such Default and, in any event, such Default must be cured within thirty (30) days after receipt of such notice or it shall become an Event of Default; or, if such Default is of a nature that is not capable of being cured within thirty (30) days, the cure must be commenced within such period and diligently pursued to completion, but not to exceed ninety (90) days in total unless otherwise agreed between the Parties (each such period shall be deemed a “Cure Period”). 14 8.4. Remedies for Default. If an Event of Default should occur under any of the obligations of the City or the Company as provided in this Agreement, each Party shall be entitled to exercise only those rights or remedies as are made available pursuant to the terms of this Agreement, including without limitation specific performance, except as this Agreement, any document executed in connection therewith, may specifically limit such remedies. Notwithstanding the foregoing, each Party waives any claim such Party may have for incidental or consequential damages arising out of a failure of performance of the other Party under this Agreement. 8.5. Delays; Waivers. Except as otherwise expressly provided in this Agreement, any delay by any Party in asserting any right or remedy under this Agreement will not operate as a waiver of any such rights or limit such rights in any way; and any waiver in fact made by such Party with respect to any Default by the other Party will not be considered as a waiver of rights with respect to any other Default by the performing Party or with respect to the particular Default except to the extent specifically waived in writing. It is the intent of the Parties that this provision will enable each Party to avoid the risk of being limited in the exercise of any right or remedy provided in this Agreement by waiver, laches or otherwise at a time when it may still hope to resolve the problems created by the Default involved. 8.6. Rights and Remedies Cumulative. Except where exclusive and/or sole remedies are expressly provided herein, the rights and remedies of the Parties are cumulative, and the exercise by either Party of any one or more of such rights will not preclude the exercise by it, at the same or different times, of any other right or remedy, allowed and enumerated under this Agreement for any other Event of Default by the other Party. 8.7. Informal Resolution and Mediation. (a) If there is a dispute under this Agreement, the Parties agree that the City Representative and Company Representative shall promptly meet (not more than five (5) City of Glendale business days after notice) to resolve the dispute. If these representatives are unable to resolve the dispute, Company shall designate a person that has final authority to resolve the dispute on behalf of the Company and this person shall meet with the City’s City Manager to seek resolution of the dispute. (b) If there is a dispute that the Parties cannot resolve in the manner described in Section 8.7(a) above, 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. Company may send a notice of claim to the City and/or file a lawsuit or take other action against the City that Company deems necessary in order to preserve its rights during the pendency of the ninety (90) day moratorium on litigation. The mediation shall not be subject to the Commercial Mediation Rules of the American Arbitration Association. The matter in dispute shall be submitted to a mediator mutually selected by Company and City. If the Parties cannot agree upon the selection of a mediator within ten (10) days, then within five (5) days thereafter, City and Company 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, commercial transactions or complex contracts. The cost of any such mediation shall be divided equally between City and Company. The results of the mediation 15 shall be nonbinding, with any Party free to initiate litigation upon the earlier of the conclusion 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. 9. DESIGNATED REPRESENTATIVES AND COOPERATION. 9.1. Representatives. To further the cooperation of the Parties in implementing this Agreement, City and Company each will designate and appoint a representative to act as a liaison between City and its various departments and Company. The initial representative for City will be Kevin R. Phelps (the “City Representative”), and the initial representative for Company will be Grant Fisher, President of Company, or such other individual as identified by Company from time to time (the “Company Representative”). The City Representative and the Company Representative 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. 9.2. Continued Cooperation. City and Company agree they will maintain an ongoing relationship and use good faith and reasonable efforts to coordinate development of the Property and the Project and methods to mitigate any potential impacts on each other’s operations. Such coordination will include but not be limited to: Representatives of City and Company will meet regularly to discuss development progress, operational build-out and utility service issues such as planned service interruptions. Additionally, the City will endeavor to provide reasonable prior notice to Company of any planned water service interruptions, including the expected time period of the planned water service interruptions. 10. MISCELLANEOUS PROVISIONS. 10.1. Indemnification. Each of the Parties shall indemnify, protect, defend and hold harmless the other from and against any and all claims, costs, damages and liabilities (including attorneys’ fees and costs) arising from any breach by such party of any of the representations and warranties contained herein, and shall give prompt notice to the other Party upon receipt of written notice or obtaining actual knowledge of any pending or threatened claim or litigation that may be subject to the Parties’ indemnity obligations under this Agreement. 10.2. Defense of Agreement. In the event of any third-party challenge to the validity and enforceability of this Agreement or any proceeding or litigation arising from its terms that names City or Company as a party or which challenges the authority of the Parties to enter or perform any of its obligations hereunder, the parties may jointly cooperate to defend such challenge. If the parties jointly cooperate to defend a third-party challenge to this Agreement, Company shall take the lead position in defending against any such proceeding or litigation at its sole cost and expense. In the event the Company does not desire to participate in a joint defense or does not take the lead position in defending against a third-party challenge, the City has the option to terminate this Agreement. 10.3. Governing Law; Choice of Forum. This Agreement will be deemed to be made under, will be construed in accordance with, and will be governed by the internal, substantive laws of the State of Arizona (without reference to conflict of law principles). Any action brought 16 to interpret, enforce or construe any provision of this Agreement must be commenced and maintained in the United States District Court for the District of Arizona (or, as may be appropriate, in the Justice Courts of the County, or in the Superior Court of the State of Arizona in and for the County of Maricopa, if, but only if, the District Court lacks or declines jurisdiction over such action). The Parties irrevocably consent to jurisdiction and venue in such courts for such purposes and agree not to seek transfer or removal of any action commenced in accordance with the terms of this Section. 10.4. Restrictions on Assignment and Transfer. (a) Restriction on Transfers. The Company represents and agrees that its undertakings pursuant to this Agreement are and will be for the purpose of development of the Project on the Property and not for speculation in landholding. The Company further recognizes that the qualifications of its principals are of particular concern to the City and that it is because of such qualifications and identity that the City is entering into this Agreement. In recognition of the Company’s expertise and experience, the Company may not assign or transfer its rights under this Agreement to any other person or entity, except for a subsidiary or affiliate of Company, without the prior express written consent of the City, which consent may be withheld in the City’s sole and absolute discretion. Notwithstanding City consent, any such assignment shall not relieve the Company of any obligations hereunder. Moreover, no voluntary or involuntary successor-in- interest to the Company may acquire any rights under this Agreement except as expressly set forth in this Section 10.4. Notwithstanding the foregoing, the Company shall be entitled to freely transfer and/or assign the membership interests of the Company without the written consent of the City, provided that Tommy Fisher and Grant Fisher (or entities they control) retain a majority of the voting equity interests in the Company. (b) Transfers by City. Except as expressly set forth herein, City’s rights and obligations under this Agreement will be non-assignable and non-transferable, without the prior express written consent of Company, which consent may be given or withheld in Company’s sole and unfettered discretion. 10.5. Limited Severability. City and Company each believes that the execution, delivery and performance of this Agreement comply with all Applicable Laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable, such provision will be deemed severed from this Agreement and this Agreement will otherwise remain in full force and effect; provided that this Agreement will retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. The Parties further agree, in such circumstances, to do all acts and to execute all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 10.6. Construction. The terms and provisions of this Agreement represent the results of negotiations between the Parties, each of which has been or has had the opportunity to be represented by counsel of its own choosing, and none of which has acted under any duress or compulsion, whether legal, economic or otherwise. Consequently, the terms and provisions of this Agreement will be interpreted and construed in accordance with their usual and customary 17 meanings, and the Parties each hereby waive the application of any rule of law which would otherwise be applicable in connection with the interpretation and construction of this Agreement that ambiguous or conflicting terms or provisions contained in this Agreement will be interpreted or construed against the Party who prepared or whose attorney prepared the executed Agreement or any earlier draft of the same. 10.7. Notices. Any notice, request, demand, statement, or consent herein required or permitted to be given by either Party to the other in this Lease (each, a “Notice”), must be in writing signed by or on behalf of the party giving the notice and addressed to the other at the address as set forth below: If to the City: The City of Glendale 5850 West Glendale Avenue Glendale, Arizona 85301 Attention: Kevin Phelps, City Manager kphelps@glendaleaz.com With a required copy to: The City of Glendale 5850 W. Glendale Avenue, Glendale, Arizona 85301 Attention: Michael Bailey, City Attorney mbailey@glendaleaz.com If to the Company: VAI Resorts, LLC 1830 N. 95th Avenue, Suite 114 Phoenix, AZ 85037 Attention: Grant Fisher gfisher@vairesort.com With a required copy to: VAI Resorts, LLC 1830 N. 95th Avenue, Suite 114 Phoenix, AZ 85037 Attention: Lora Picini lpicini@vairesort.com Each party may by notice in writing change its address for the purpose of this Agreement, which address shall thereafter be used in place of the former address. Each notice, demand, request, or communication which shall be mailed to any of the aforesaid shall be deemed sufficiently given, served, or sent for all purposes hereunder (i) two (2) business days after deposit with the United States Postal Service as registered or certified mail, postage prepaid and return receipt requested, (ii) upon personal delivery, or (iii) one (1) business day after deposit with any recognized commercial air courier or express service for next business day delivery. 10.8. No Agency Created. Nothing contained in this Agreement creates any partnership, joint venture or agency relationship between the City and the Company. No term or 18 provision of this Agreement is intended to be for the benefit of any person, firm, organization or corporation not a party hereto, and no other person, firm, organization or corporation may have any right or cause of action hereunder. 10.9. Time of Essence. Time is of the essence of this Agreement and each provision hereof. 10.10. Section Headings. The Section headings contained in this Agreement are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. 10.11. Attorneys’ Fees and Costs. In the event either Party commences litigation for the judicial interpretation, enforcement, termination, cancellation or rescission hereof, or for damages for the breach hereof, then, in addition to any or all other relief awarded in such litigation, the prevailing Party therein shall be entitled to a judgment against the other for an amount equal to reasonable attorneys’ fees and court and other costs incurred. 10.12. Waiver. Without limiting the provisions of Section 8.5 of this Agreement, the Parties agree that neither the failure nor the delay of any Party to exercise any right, remedy, power or privilege under this Agreement will operate as a waiver of such right, remedy, power or privilege, nor will any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor will any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver will be effective unless it is in writing and is signed by the Party asserted to have granted such waiver. Nothing herein shall constitute a waiver of the City’s police powers or amount to an unlawful delegation of governmental authority by the City. 10.13. Third Party Beneficiaries. No person or entity will be a third party beneficiary to this Agreement, except for permitted transferees, successors, assignees, or lenders to the extent that they assume or succeed to the rights and/or obligations of Company under this Agreement, and except that the indemnified Parties referred to in the indemnification provisions of Section 10.1 (or elsewhere in this Agreement) will be third party beneficiaries of such indemnification provisions. 10.14. Exhibits. Without limiting the provisions of Section 1 of this Agreement, the Parties agree that all references to this Agreement include all Exhibits designated in and attached to this Agreement, such Exhibits being incorporated into and made an integral part of this Agreement for all purposes. 10.15. Integration. Except as expressly provided herein, this Agreement constitutes the entire agreement between the Parties with respect to the subject matters hereof and supersedes any prior agreement, understanding, negotiation or representation regarding the subject matters covered by this Agreement. 10.16. Further Assurances. Each Party agrees to perform such other and further acts and to execute and deliver such additional agreements, documents, affidavits, certifications, acknowledgments and instruments as any other Party may reasonably require to consummate, 19 evidence, confirm or carry out the matters contemplated by this Agreement or confirm the status of (a) this Agreement as in full force and effect and (b) the performance of the obligations hereunder at any time during its Term. The Parties will take all actions necessary to implement, evidence, and enforce this Agreement. 10.17. Business Days. If the last day of any time period stated in this Agreement or the date on which any obligation to be performed under this Agreement falls on a Friday, Saturday, Sunday, a legal holiday, or a day on which national banking associations are not open for general banking business, then the duration of such time period or the date of performance, as applicable, will be extended so that it will end on the next succeeding day which is not a Friday, Saturday, Sunday, a legal holiday, or a day on which national banking associations are not open for general banking business. 10.18. Consents and Approvals. Wherever this Agreement requires or permits the consent or approval of a Party to any act, document, use or other matter, such consent or approval will be given or denied by such Party in its reasonable discretion, not in an unreasonable manner to be conditioned or delayed, unless this Agreement expressly provides otherwise. 10.19. Covenants Running With Land; Inurement. The covenants, conditions, terms and provisions of this Agreement relating to use of the Property will run with the Property and will be binding upon, and will inure to the benefit of, the Parties and their respective permitted successors and assigns with respect to such Property. Wherever the term “Party” or the name of any particular Party is used in this Agreement such term will include any such Party’s permitted successors and assigns. 10.20. Recordation. Within ten (10) days after this Agreement has been executed by the Parties, City will cause this Agreement to be recorded in the Official Records of the County. 10.21. Amendment. No change or addition is to be made to this Agreement except by written amendment executed by City and Company. Within ten (10) days after any amendment to this Agreement has been signed by the Parties, such amendment will be recorded in the Official Records of the County. Upon amendment of this Agreement as established herein, references to “Agreement” or “Development Agreement” will mean this Agreement as amended. If, after the effective date of any amendment(s), the Parties find it necessary to refer to this Agreement in its original, unamended form, they will refer to it as the “Original Development Agreement.” When the Parties mean to refer to any specific amendment to the Agreement which amendment is unmodified by any subsequent amendments, the Parties will refer to it by the number of the amendment as well as its effective date. 10.22. Good Faith of Parties. Except where any matter is expressly stated to be in the sole discretion of a Party, in performance of this Agreement or in considering any requested extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily or capriciously and will not unreasonably withhold, delay or condition any requested approval, acknowledgment or consent. 10.23. Rights of Lenders. 20 (a) City is aware that Company may obtain financing or refinancing for acquisition, development and/or construction of the real property and Private Improvements (and appurtenant rights of the city) to be constructed on the Property, in whole or in part, from time to time, by one or more third parties (individually a “Lender,” and collectively the “Lenders”). (b) Company shall have the right at any time, and as often as it desires, to finance or refinance the acquisition, development and/or construction of the real property and Private Improvements (and appurtenant rights of the City) to be constructed on the Property, in whole or in part, and to secure such financing with a lien or liens against the Property. (c) Notwithstanding any other provision of this Agreement, Company may collaterally assign all or part of its rights and duties under this Agreement as security to any Lender without such Lender assuming the obligations of Company under this Agreement, but without releasing Company from its obligations under this Agreement. 10.24. Nonliability of City Employees, Officials, Etc., and of Employees, Shareholders, Members and Partners, Etc. of Company. No City Council member, official, representative, agent, attorney or employee of City will be personally liable to any of the other Parties hereto, or to any successor in interest to any of the other Parties, in the event of any Default or breach by City or for any amount which may become due to any of the other Parties or their successors, or with respect to any obligation of City under the terms of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the liability of Company under this Agreement will be limited solely to the assets of Company and will not extend to or be enforceable against: (i) the individual assets of any of the individuals or entities who are shareholders, members, managers constituent partners, officers or directors of the Company or any of its constituent equity owners; (ii) the shareholders, members or managers or constituent equity owners of Company; or (iii) officers of Company. 10.25. WAIVER OF JURY TRIAL. THE CITY AND THE COMPANY HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING, COUNTERCLAIM OR DEFENSE BASED ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN ANY WAY CONNECTED TO THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO RELATING TO THIS AGREEMENT. 10.26. Amendment and Restatement of Original Development Agreement. The Original Development Agreement, as amended by the Amended and Restated Development Agreement is hereby amended in its entirety and restated herein. 21 IN WITNESS WHEREOF, the Parties have executed this Amended and Restated Development Agreement as of the date first set forth above. CITY: CITY OF GLENDALE, ARIZONA, an Arizona municipal corporation By: Its: _________________________________ ATTEST: By: Julie K. Bower, City Clerk APPROVED AS TO FORM: By: Michael D. Bailey, City Attorney STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) The foregoing instrument was acknowledged before me this ____ day of October, 2024, by ______________________ the ______________ of the City of Glendale, Arizona, an Arizona municipal corporation, who acknowledged that he/she signed the foregoing instrument on behalf of the City. Notary Public My Commission Expires: Kevin R. Phelps City Manager 22 COMPANY: VAI RESORTS, LLC, an Arizona limited liability company By: Grant Fisher, President, STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) The foregoing instrument was acknowledged before me this ____ day of October, 2024, by Grant Fisher, President of the Company named in the foregoing Amended and Restated Development Agreement, who acknowledged that he signed the foregoing instrument on behalf of the Company. Notary Public My Commission Expires: Exhibit A - 1 SPR 17590564.3 EXHIBIT A TO DEVELOPMENT AGREEMENT LEGAL DESCRIPTION Exhibit A - 2 Exhibit B EXHIBIT B TO DEVELOPMENT AGREEMENT INTENTIONALLY OMITTED Exhibit C EXHIBIT C TO DEVELOPMENT AGREEMENT SITE PLAN AND DEVELOPMENT NARRATIVE [TO BE ATTACHED] EXHIBIT D TO DEVELOPMENT AGREEMENT SITE IMPROVEMENTS LIST & DRAWINGS [TO BE ATTACHED] CARDINALS WAY LOOP 101 MARSHALL AVENUE MISSOURI AVENUE SAN MIGUEL AVENUE 94TH LANE 95TH AVE MONTEBELLO AVENUE PAD 3655 W Anthem Way PMB BOX 104 ANTHEM, AZ 85086 EXHIBIT PAD 3655 W Anthem Way PMB BOX 104 ANTHEM, AZ 85086 EXHIBIT