Parking Space Use Agreement

City of Glendale — Regular Meeting (2024-12-10)

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WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Glendale, Arizona
5850 West Glendale Avenue
Glendale, Arizona 85301

VAI PARKING GARAGE SPACES USE AGREEMNT

THIS USE AGREEMENT (“Agreement”) is entered into and effective ____________, by and
among the City of Glendale, an Arizona municipal corporation (City) and the VAI Resorts, LLC,
an Arizona limited liability company (“Vai”), collectively referred to as the “Parties” and
singularly referred to as a “Party”.

RECITALS

A.
On October 15, 2015, the City acquired approximately 981,407 square feet of real
property generally located at the Southwest corner of Cardinals Way and 91st Avenue,
(‘PS Parcel”), to meet existing City contractual obligations, to support the City’s existing
infrastructure and amenities associated with Glendale’s Sports an Entertainment District,
including the Westgate Development, the Desert Diamond Arena, and the State Farm
Stadium.

B.
At the time of acquisition, the PS Parcel was zoned as the “Centrada Planned Area
Development”, approved by the City of Glendale on November 25, 2008.

C.
Thereafter, the City commenced improving the PS Parcel in accordance with the
Centrada Planned Area Development, including constructing and operating a parking lot
(“Black lot”) and exchanging a portion of the PS Parcel property as part of a Settlement
Agreement between the City, AZSTA, the Cardinals, New Cardinals Stadium LLC, and
Stadium Development LLC, (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”).

D. The City continued improving the PS Parcel in accordance with the Centrada Planned
Area Development and in recognition of the encumbrances associated with the Parking
Settlement Agreement with the Arizona Cardinals, Arizona Sports and Tourism
Authority and the City’s obligations and desires to supply parking spaces in conjunction
with the operation of neighboring venues and development. The City engaged the Plaza
Del Rio Management Company to perform certain consulting services including the
branding of the PS Parcel (City Contract #C21-1021) and, site planning the PS Parcel
(City Contract #C21-0879), including establishing phasing for construction of

infrastructure that included obtaining consensus of the Arizona Cardinals and AZSTA.
Additionally, the City engaged Plaza Del Rio Management Company to list for sale the
unencumbered areas of the PS Parcel (City Contract #C22-0279).

E. On or about July 5, 2024, Vai contracted with the City to purchase approximately
359,370 sq. ft. (8.25 acres) of the vacant PS Parcel (“Parking Garage Parcel”).located
generally on the eastern side of Maricopa County Parcel No. APN 102-13-072, and
bounded by 91st Avenue to the east, Cardinals Way on the north and Montebello Avenue
on the south in the City of Glendale, State of Arizona, ((Purchase and Sale
Agreement”)(City Contract #C24-0653)) for the express purpose of constructing a private
parking garage consisting of four thousand two hundred fifty (4,250) private parking
spaces (“Vai Parking Garage”). This Parking Garage Parcel may also be referenced as
“Lot 2A” of the Minor Land Division for the Montebello 95 Addition.

F.
The Vai Parking Garage is currently under construction on the Parking Garage Parcel.

G.
The Parties acknowledge that the Parking Garage Parcel is subject to, and the Parties
have certain obligations under, the Stadium Parking Settlement Agreement.

H.
City remains the owner of the unimproved lot adjacent to the Parking Garage Parcel
located generally at the Southwest corner of Cardinals Way and 91st Avenue, Glendale,
Arizona (“City Parcel”). This City Parcel may also be referenced as “Lot 3A” of the
Minor Land Division for the Montebello 95 Addition.

I.
City desires to acquire rights to use Parking Garage Spaces in the Vai Parking Garage
that will be for the benefit of the City Parcel and increase the value of the City Parcel and
freely assignable by the City to surrounding venues and development and for the
promotion and undertaking of large-scale events that may benefit the existing City
investment in the area.

J.
Vai will own, maintain, and manage the operations of the Parking Garage Spaces and Vai
Parking Garage. The City will have no ownership or control or any financial interest or
monetary responsibility in the Vai Parking Garage greater than what is expressly set forth
in this Agreement.

K.
The Parties desire to memorialize their agreement through this document.

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:

AGREEMENT

In consideration for the mutual promises, express obligations, and appropriate compensation, the
Parties agree as follows:

1.
Condition Precedent. Vai and City acknowledge and agree that the effectiveness of this
Agreement shall be subject to the following Condition Precedent (“Condition Precedent”)
having been satisfied: Vai shall effectuate the Completion of Construction of the Vai
Parking Garage. “Completion of Construction” means: (1) the closing of the real
property transaction set forth in the Purchase and Sale Agreement; and (2) the issuance of
a final certificate of occupancy for the Vai Parking Garage. It is understood and agreed
that it is solely Vai’s obligation to satisfy the Condition Precedent and Complete
Construction and no action or inaction by the City shall obviate Vai’s obligation to satisfy
the Condition Precedent or Complete Construction. In the event that the Condition
Precedent is not satisfied on or before January 1, 2026, either Vai or City will have the
right to terminate this Agreement upon delivery of written notice to the other, in which
case this Agreement shall be null and void and of no further force or effect. City will
have no liability whatsoever to Vai relating to or arising from Vai’s inability or failure to
Complete Construction or cause the Condition Precedent to be satisfied regardless of
whether it stems from any action, inaction, delay, negligence, gross negligence, or breach
by the City.

2.
Grant of Use. The terms of use and User Fees along with a description of the Parking
Garage Spaces in the Parking Garage are as follows:

a. Parking Garage Spaces. City receives the uninterruptable right to use, unless
otherwise set forth in this Agreement, 800 covered parking spaces on the ground
floor level of the Vai Parking Garage (“Parking Garage Spaces”) comprised of
600 spaces available for use by the City at all times (“Full Access Spaces”), and
200 spaces available for use by the City between 6 a.m. and 6p.m., seven days per
week (“Flex Spaces”).

b. Term/Options to Renew.

i. Initial Term. The “Initial Term” of this Agreement shall be for twenty-
five (25) years, commencing on the Completion of Construction date and
shall expire on ______________, unless this Agreement is terminated
earlier pursuant to the provisions herein.
ii. Renewal Term. For purposes of this Agreement, a “Renewal Term”
means a term of ten (10) years commencing upon the expiration of the
Initial Term or the immediately preceding Renewal Term, if any.
iii. Option to Renew. City shall have two (2) successive options to renew this
Agreement for a Renewal Term. City shall exercise its right and option for
each Renewal Term by serving written notice upon Vai of its election to
exercise each said option at least one (1) month before the expiration of
the then-current Term. If City fails to provide such notice within the
aforementioned time, then the City’s right and option to renew shall
continue in full force until Vai notifies the City that the renewal notice has
not been received and the City fails to exercise its renewal right within

ninety (90) days after receipt of Vai’s notice. It is the intention of the
Parties that the City shall not lose any renewal right through inadvertence.

c. Use Fee. In exchange for the right to use and occupy the Parking Garage Spaces,
City shall pay Vai a Use Fee as follows:
i. Upon Completion of Construction, City shall pay Vai Fourteen Million
Eight Hundred Seventy-Five Thousand Dollars ($14,875,000.00) for the
Initial Term of this Agreement.
ii. The City shall pay Vai One Million Five Hundred Thousand Dollars
($1,500,000.00) for each Renewal Term at the time of each renewal.
iii. Proration. If Vai terminates, sells the Parking Garage, sells the Parking
Garage Land or is found in default of this Agreement, Vai shall prorate
City’s User Fee including the reimbursement of any User Fees previously
paid by the City for the period after the effective date of termination.
Furthermore, if Vai, at no fault of City, interrupts the continuous use of the
Parking Garage Spaces for any reason, the City shall have the right to
request a proration, including reimbursement, of the User fees for the
duration of the interruption.

3.
Maintenance, Repair and Capital Improvements. Vai shall perform or cause to be
performed all Maintenance and Repair (including capital improvements) to: (a) keep the
Parking Garage Spaces in good working order and condition and at a level of service and
quality consistent with comparable parking garages that are located within comparable
markets in the United States, (b) in accordance with the terms of this Agreement, (c) in
accordance with all Applicable Law, and (d) in a manner reasonably expected to:
(i) protect and preserve the assets that comprise Vai Parking Garage and (ii) maximize
the profitability and value of the Vai Parking Garage. Such obligation shall include, but
is not limited to, maintenance of all landscaping, asphalt and concrete surfaces, striping
and lighting, as well as the supply of all necessary utilities therefore, including water and
electricity.
a. It is the intention of the Parties that the City will have no ownership interests in
the Vai Parking Garage and have no obligation to operate, secure, or perform any
Maintenance and Repair to the Vai Parking Garage and the Parking Garage
Spaces greater than what is expressly set forth in this Agreement.
4.
Assignment/Transfers.
a. Assignment by Vai. Vai shall not cause, permit or suffer any Assignment of this
Agreement without the prior written consent of the City, which may be withheld
in the City’s sole and absolute discretion; provided that Vai shall have the right,
without the City’s consent, to effect an Assignment of this Agreement, in whole,
but not in part, to any Affiliate of Vai or any purchaser of all or substantially all of
the assets of Vai but only if such assignee Affiliate shall have the capacity and
ability to operate the Vai Parking Garage in a substantially similar manner as Vai
and as otherwise required under this Agreement. Vai shall within a reasonable

time give City notice (the “Notice of Assignment”) of such assignment, and the
Notice of Assignment shall include the name and address of the assignee. Nothing
in this Section 4 shall alter, amend, reduce or excuse Vai from performing Vai's
obligations under this Agreement.

“Affiliate” of Vai, as set forth in Section 4(a) above means a Person who (a)
controls, is directly or indirectly controlled by, or is under common control with
Vai; (b) owns, directly or indirectly, ten percent (10%) or more of the equity
interests of Vai; or (c) is a managing member or manager, or officer, director,
non-financial institution trustee or fiduciary of Vai; or (d) is a member of the
Immediate Family.

b. Assignment by the City. The City shall have the right, without Vai’s consent to
(1) effect an Assignment of this Agreement, in whole or in part, to any successor
owner of the City Parcel, or any portion of the City Parcel; or (2) effect an
Assignment , in whole or in part, for the temporary use of the Parking Garage
Spaces to enhance parking for neighboring venues and development. City shall
within a reasonable time give Vai notice (the “Notice of Assignment”) of such
assignment, and the Notice of Assignment shall include the name and address of
the assignee. Nothing in this Section 4 shall alter, amend, reduce or excuse City
from performing City's obligations under this Agreement.

Following receipt of a Notice of Assignment, no Party hereto shall enter into or
consent to any amendment, modification or termination of this Agreement
without the prior written consent of Assignee named in such Notice of
Assignment.
c. Effect of Prohibited Assignment. Any assignment by either Party of this
Agreement in violation of the provisions of this Section 4 shall be null and void at
the sole discretion of the Party whose rights pursuant to Section 4 were violated
upon such assignment. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the Parties and their
respective successors and assigns.
d. Assignment Restrictions. Other than as set forth in Section 4(a) and Section 4(b),
neither Party shall cede, assign or delegate its respective rights or obligations
under this Agreement without the prior written consent of the other Party, which
consent may be withheld in each Party’s sole and absolute discretion.
e. Prohibition of Conveyances/Negative Covenants. Except as expressly provided in
this Agreement in Section 4(a), Vai covenants and agrees, during the Agreement
Term (including any renewal or extension thereof), that without the prior written
consent of City, which consent may be granted, denied or conditioned in City’s
sole, absolute and subjective discretion, as follows:

i. No Parking Garage Spaces may be conveyed by Vai to any third party at
the request or direction of, or pursuant to any contractual arrangement
with any third party.
ii. Vai shall not grant, permit, enter into or suffer to exist, modify, waive, or
terminate any right or interest, or agree to any designation with respect to
any portion of the Parking Garage Spaces, including under any contractual
agreement with any third party.
iii. Vai shall not construct any improvement on the Parking Garage Spaces,
unless such construction is part of the Maintenance and Capital Repair of
the Vai Parking Garage.

5.
Recording and Certain Other Costs. At the City’s expense, contemporaneously with the
execution hereof, City shall cause this Agreement to be duly recorded with respect to the
Parking Garage Parcel.
a. Covenants to Run with Land. It is intended that each of the easements, covenants,
conditions, restrictions, licenses, agreements, rights and obligations set forth
herein shall run with Parking Garage Parcel and shall bind every person now or
hereafter having any fee, leasehold or other interest in the Parking Garage Parcel
and shall inure to the benefit of the respective Parties and their successors,
assigns, heirs and personal representatives and any subsequent owner thereof.
6.
Insurance Policies
a. Coverage.
i. Insurance to Be Maintained by Vai During Term. At all times during the
Term, Vai shall procure and maintain, on behalf of Vai and City,
insurance respecting the Vai Parking Garage in the forms and coverages,
policy limitations and amounts as follows, or such other coverages, policy
limitations and amounts as are approved by the Parties:
(i) Commercial general liability insurance including bodily injury,
property
damage,
products
and
completed
operations,
contractual liability and personal and advertising injury with
not less than Ten Million Dollars ($10,000,000) per
occurrence/general aggregate. An excess liability or umbrella
liability policy may be used to meet the minimum liability
requirements provided that the coverage is written on a
“following form” basis.
(ii) Comprehensive automotive liability insurance covering bodily
injury and property damage for hired, owned and non-owned
vehicles with combined single limit of not less than Ten
Million Dollars ($10,000,000).

(iii)Workers compensation insurance as required by the State of
Arizona with statutory limits and employers’ liability at a limit
of One Million ($1,000,000) per accident for bodily injury or
disease.
(iv) Property insurance written on an all risk, replacement cost
coverage basis, including coverage for business interruption,
flood and earth movement, with Vai named as a loss payee;
provided that coverage for flood and earth movement will be
provided based on, and to the extent available on,
commercially reasonable terms.
b. Cooperation. Each Party shall reasonably cooperate with the other Party in
investigating and presenting any proof of loss or claim to any insurer.
c. Additional Requirements.
i. The City shall be included as an additional insured under the insurance
policies required under this Section 6, except workers compensation
ii. The Parties acknowledge that the insurance policies required under this
Section 5 may contain exclusions that are reasonable and customary for
policies of such type.
iii. Each policy required under this Section 6 shall provide thirty (30) days’
prior written notice of cancellation.
iv. Vai shall deliver to City certificates evidencing the insurance policies
required to be carried by such Party under this Section 6 within ten (10)
days after the Effective Date and on or before renewal of each policy
expiration date.
v. Vai’s insurance is to be placed with insurers with a current A.M. Best’s
rating of at least A:VI, unless otherwise acceptable to the City.
vi. Vai’s insurance coverage shall be primary insurance.
7.
Indemnification.
a. Indemnification by Vai. Vai shall defend, indemnify, and hold harmless the City
and its employees and agents, and the successors and assigns of each of the
foregoing (the “Indemnified Party”) for, from and against any and all losses in
excess of any third-party awards incurred solely by reason of Vai’s breach of this
Agreement, or by Vai’s negligence, gross negligence or willful misconduct in
connection with Vai’s performance under this Agreement.
b. Indemnification Procedures. In the event that any action shall be instituted or
asserted, or any losses shall arise as a result of which indemnity may be sought by

an Indemnified Party pursuant to the Section 7, such Indemnified Party shall
promptly notify Vai in writing. The failure to provide notice, however, shall not
release Vai from any of its obligations hereunder except to the extent that Vai is
materially prejudiced by such failure.
i. Vai shall have the right to participate in and control the defense of any
such action and, in connection therewith, to retain appropriately qualified
counsel. Vai shall keep the Indemnified Party apprised of the status of
such action and shall consider in good faith recommendations made by the
Indemnified Party with respect thereto.
ii. In any such action, the Indemnified Party shall have the right to retain its
own counsel at its own expense; provided that the fees and expenses of
such Indemnified Party’s counsel shall be at the expense of Vai if (i) the
Parties shall have mutually agreed to the retention of such counsel, (ii) Vai
shall have failed, within a reasonable time after having been notified of the
existence of an indemnified claim, to assume the defense of such
indemnified claim or (iii) if, in the Indemnified Party’s reasonable
judgment, a conflict of interest exists between the Indemnified Party and
Vai at any time during the defense of such action (and such conflict would
be deemed to exist with respect to any dispute as to whether such action
arises from Vai’s breach, negligence, gross negligence or willful
misconduct).
iii. Vai shall not be liable for any settlement of any action without its prior
written consent (which consent shall not be unreasonably withheld or
delayed). Vai shall not effect any settlement of any pending or threatened
action in respect of which an Indemnified Party is seeking indemnification
hereunder without the prior written consent of each such Indemnified
Party (which consent shall not be unreasonably withheld or delayed),
unless such settlement includes an unconditional release of each such
Indemnified Party from all liability and claims that are the subject matter
of such action.
iv. As necessary or useful to the defending party in effecting the foregoing
procedures, Vai and the Indemnified Party shall cooperate in the execution
and delivery of agreements, instruments and other documents and in the
provision of access to witnesses, documents and property (including
access to perform interviews, physical investigations or other activities).
c. Survival. This Section 7 shall survive the expiration or termination of this
Agreement.
8.
Casualty
a. Casualty. In the event the Vai Parking Garage shall be damaged or destroyed by
any Casualty “Casualty” means any fire, flood, or other act of God or casualty

that results in damage or destruction to the Vai Parking Garage, the restoration of
the Vai Parking Garage or any damaged portion thereof shall be deemed a Capital
Improvement that is Vai’s obligation to effectuate. If Vai fails to restore, repair or
rebuild the Vai Parking Garage within one year from date of damage or
destruction, City shall have the right to terminate the Agreement and City shall
have the right to request from Vai and Vai shall pay City a proration of the User
Fees, including reimbursement, for the remainder of the Term.
9.
Defaults and Terminations.
a. Event of Default. The following actions or events shall constitute an “Event of
Default” under this Agreement:
i. A failure by a Party to pay any amount of money to the other Party when
due and payable under this Agreement that is not cured within ten (10)
Business Days after delivery of notice to the defaulting Party.
ii. A failure by the Vai to provide uninterrupted access and use to the Parking
Garage Spaces, including Vai’s failure to repair or reconstruct the Vai
Parking Garage as a result of any Casualty.;
iii. A material breach by a Party of any representation or warranty expressly
set forth in this Agreement;
iv. An Assignment by a Party in violation of Section 3;
v. The insolvency of Vai, (ii) Vai’s failure generally to pay its debts as such
debts become due; (iii) a general assignment or similar arrangement by
Vai for the benefit of its creditors; (iv) the filing by Vai of a petition for
relief under applicable bankruptcy, insolvency, or similar debtor relief
laws; (v) the filing of a petition for relief under applicable bankruptcy,
insolvency or similar debtor relief laws by any Person against Vai which is
consented to by Vai, (vi) the appointment or petition for appointment of a
receiver, custodian, trustee or liquidator to oversee all or any substantial
part of a Vai’s assets or the conduct of its business, (vii) any action by Vai
for dissolution of its operations; or (viii) any other similar proceedings in
any relevant jurisdiction affecting Vai;
vi. The issuance of a levy or an attachment against all or any material portion
of the Vai Parking Garage resulting from a final judgment against Vai for
which all appeal periods have expired and which is not fully covered by
insurance; and
vii. The failure by any Party to timely perform, keep or fulfill all or any
portion of the terms, covenants, undertakings, duties, obligations or
conditions set forth in this Agreement to be performed by such Party
(other than those specified in Sections(a)(i) through (a)(vi) above), and the
continuance of such failure for a period of sixty (60) days after receipt by

the defaulting Party of written notice thereof from the other Party
specifying such failure, provided that in the event such failure is amenable
to cure and is of a nature that it cannot, with due diligence, using
commercially reasonable efforts, and in good faith, be cured within sixty
(60) days, it shall not constitute an Event of Default unless such defaulting
Party fails to commence to cure such default within the aforementioned
60-day period, and thereafter to prosecute the curing of such failure with
due diligence and in good faith (it being intended that, in connection with
a failure not susceptible of being cured with diligence and in good faith
within sixty (60) days, the time of such defaulting Party within which to
cure the same shall be extended for such period as may be necessary for
the curing thereof with due diligence, using commercially reasonable
efforts and in good faith, provided such party commences to cure within
such 60-day period).
viii. A failure of Vai to participate in and contribute towards defending against
a third-party challenge to this Agreement as set forth in Section 11(v)
Remedies for Event of Default. If any Event of Default occurs, the non-defaulting
Party shall have the right to exercise against the defaulting Party any rights and
remedies available to the non-defaulting Party under this Agreement or (subject to
the provisions of this Agreement), at law or in equity; provided that neither Party
shall have the right to terminate this Agreement during the continuance of an
Event of Default unless such Event of Default is material (it being understood that
any Event of Default that constitutes intentional misconduct or fraud is deemed
material). If the alleged defaulting Party disputes the non-defaulting Party’s right
to terminate this Agreement, such dispute shall be resolved in accordance with
Section 9. If termination of this Agreement is an available remedy, such remedy
may be exercised by the non-defaulting Party only by written notice to the
defaulting Party as provided in 8(a)(vii), in which case this Agreement shall
terminate on sixty (60) days’ notice by the non-defaulting Party. No Release of
Liability. No termination of this Agreement by either Party pursuant to this
Section 8 shall relieve the other Party of any liability or obligation it may have to
the terminating Party pursuant to this Agreement by reason of the circumstances
that caused the terminating Party to terminate this Agreement.
b. Actions to be Taken on Termination. The Parties shall take the following actions
upon the termination of this Agreement:
i. Payment of Expenses for Termination. If this Agreement is terminated by
the City as a result of an Event of Default by Vai or due to Severability in
accordance with Section 11(h), Vai shall reimburse the City for the entire
amount remaining of the Use Fees paid by the City under the Use
Agreement for the period after the termination date of the Agreement,
within ten (10) business days. If this Agreement is terminated by Vai other
than for an Event of Default by the City, Vai shall reimburse the City for
the entire amount remaining of the Use Fees paid by the City under the

Use Agreement for the period after the termination date of the Agreement
within ten (10) business days.
c. Survival. This Section 9 shall survive the expiration or termination of this
Agreement.
10.
Dispute Resolution
a. Executive Negotiations. In the event of any dispute between the Parties
concerning or arising out of this Agreement, the Party seeking the resolution of
such dispute shall give written notice to the other Party. Promptly following
delivery of such notice, Vai shall designate a representative of Vai (the “Vai
Representative”) and the City shall designate a representative of the City (the
“City Representative”) by written notice to the other Party. For a period of ten
(10) Business Days following the delivery of such notice, the Vai Representative
and the City Representative shall meet in person or by teleconference and
negotiate with each other in good faith in an attempt to resolve such dispute.
b. Submission to Jurisdiction. Each of the Parties irrevocably agrees that any legal
action or proceeding arising out of or relating to this Agreement brought by any
other Party or its successors or assigns shall be brought and determined in the
State of Arizona, the courts of the United States of America for the District of
Arizona, and appellate courts thereof, and each of the Parties hereby irrevocably
submits to the exclusive jurisdiction of the aforesaid courts for itself and with
respect to its property, generally and unconditionally, with regard to any such
action or proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby. Each of the Parties agrees not to commence
any action, suit or proceeding relating thereto except in the courts described above
in Arizona, other than actions in any court of competent jurisdiction to enforce
any judgment, decree or award rendered by any such court in Arizona as
described herein. Each of the Parties further agrees that notice as provided herein
shall constitute sufficient service of process for any legal action or proceeding
arising out of or relating to this Agreement brought by any other Party or its
successors or assigns, and the Parties further waive any argument that such
service is insufficient. Each of the Parties hereby irrevocably and unconditionally
waives, and agrees not to assert, by way of motion or as a defense, counterclaim
or otherwise, in any action or proceeding brought by any Party arising out of or
relating to this Agreement or the transactions contemplated hereby, (a) any claim
that it is not personally subject to the jurisdiction of the courts in Arizona as
described herein for any reason, (b) that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (c) that (i) the suit, action or proceeding in any such court is brought in an
inconvenient forum, (ii) the venue of such suit, action or proceeding is improper
or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by
such courts.

c. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING
TO
THIS
AGREEMENT
OR
THE
TRANSACTIONS
CONTEMPLATED HEREBY.
d. Survival. This Section 10 shall survive the expiration or termination of this
Agreement.
11.
Miscellaneous Provisions.
a. Notices. All written notices or demands of any kind that either Party hereto may
be required or may desire to serve on the other in connection with this Agreement,
shall be served by personal service, by registered or certified mail, or by
recognized overnight courier service. Any such notice or demand so to be served
by registered or certified mail, or by recognized overnight courier service shall be
delivered with all applicable delivery charges thereon fully prepaid and, addressed
to the particular Party as follows:
If to Vai:
VAI Resorts, LLC

9601 W. Cardinals Way

Glendale, AZ 85305

Attention: Grant Fisher, President

gfisher@vairesort.com

With a Copy to:
General Counsel

VAI Resorts, LLC

1830 N. 95th Avenue, Suite 114

Phoenix, AZ 85037

Attention: Lora Picini

lpicini@vairesort.com

If to City:
City Manager
City of Glendale
5850 West Glendale Avenue
Glendale, AZ 85301
Attention: Kevin Phelps, City Manager
Email: kphelps@glendaleaz.com

With a copy to:
City Attorney
City of Glendale
6829 W. 58th Drive, Suite 201
Glendale, AZ 85301
Attention: Michael D. Bailey
mbailey@glendaleaz.com

Service of any such notice or demand so made by personal delivery, registered or
certified mail, or recognized overnight courier shall be deemed complete on the
date of actual delivery as shown by the addressee’s registry, certification or
delivery receipt, as applicable, or at the expiration of the third (3rd) Business Day
after the date of dispatch, whichever is earlier in time. Either Party hereto may
from time to time, by notice in writing served upon the other as aforesaid,
designate a different mailing address to which, or a different person to whose
attention, all such notices or demands are thereafter to be addressed.
b. Further Assurances; Cooperation. In addition to the documents, acts and deeds
recited herein and contemplated to be performed, executed or delivered by the
Parties, the Parties hereby agree to perform, execute and deliver, or cause to be
performed, executed and delivered, on the date hereof or thereafter any and all
such further documents, acts, deeds and assurances as the other Party may
reasonably require to consummate fully the transactions contemplated hereunder
or to carry out the purpose and intent of this Agreement.
c. Entire Agreement. This Agreement, together with the Exhibits, contains the
entire agreement and understanding of the Parties in respect to the subject matter
hereof. The Parties intend for the literal words of this Agreement to govern and
for all prior negotiations, drafts and other extrinsic communications between the
Parties, whether oral or written, to have no significance or evidentiary effect. The
Parties further intend that neither this Agreement nor any of its provisions may be
changed, amended, discharged, waived or otherwise modified orally except only
by an instrument in writing duly executed by the Party to be bound thereby. The
Parties hereto fully understand and acknowledge the importance of the foregoing
sentence and are aware that the law may permit subsequent oral modification of a
contract notwithstanding contract language that requires any such modification be
in writing. Accordingly, the Parties fully and expressly intend that the foregoing
requirements as to a writing be strictly adhered to and strictly interpreted and
enforced by any court that may be asked to decide the question.
d. Governing Law. This Agreement and all disputes or controversies arising out of
or relating to this Agreement, or the transactions contemplated hereby shall be
governed by, and construed in accordance with, the internal laws of the State of
Arizona, without regard to the laws of any other jurisdiction that might be applied
because of the conflicts of laws principles of the State of Arizona.
e. Counterparts. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
f. Headings; Construction. The various headings of this Agreement are included for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof. When the context and construction so
require, all words used in the singular herein shall be deemed to have been used in
the plural and the masculine shall include the feminine and the neutral and vice

versa. The use in this Agreement of the term “including” and related terms such
as “include” shall in all cases mean “without limitation.” All references to “days”
in this Agreement shall be construed to mean calendar days unless otherwise
expressly provided or reference to “Business Days” is made.
g. Time of Essence. The Parties hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term, condition, obligation and
provision hereof and failure to perform timely any of the terms, conditions,
obligations or provisions hereof by a Party shall constitute a default under this
Agreement by the Party so failing to perform.
h. Partial Validity; Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be held
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall not be affected thereby, and each such term
and provision of this Agreement shall be valid and be enforced to the fullest
extent permitted by law. Notwithstanding the foregoing, if any part of Section 7, 9
and 10 are held invalid, illegal or unenforceable for any reason, City shall have
the right to terminate this Agreement upon notice to the Vai, without any further
liability or obligation to the Vai, and the City shall have the right to request from
Vai and Vai shall pay to the City a proration of the User Fees, , including
reimbursement, for the remainder of the Term..
i. No Third Party Beneficiaries. This Agreement is for the sole and exclusive
benefit of the Parties hereto and their respective permitted successors and assigns,
and no third party is intended to, or shall have, any rights hereunder.
j. Joint Product of Parties. This Agreement is the result of arms-length negotiations
among the Parties and their respective attorneys. Accordingly, neither Party shall
be deemed to be the author of this Agreement and this Agreement shall not be
construed against either Party.
k. No Waiver. The failure of any Party hereto to enforce at any time any of the
provisions of this Agreement shall in no way be construed as a waiver of any of
such provisions, or the right of any Party thereafter to enforce each and every
such provision. No waiver of any breach of this Agreement shall be held to be a
waiver of any other or subsequent breach.
l. No Merger. The ownership of the entirety of the Parking Garage Parcel and City
Parcel, or any portion thereof, by the same Person shall not cause a termination of
this Agreement. In addition, the ownership of the fee interest and the leasehold
estate in and to an entire portion of the Parking Garage Parcel and City Parcel, or
any portion thereof, by the same Person shall not cause a termination of this
Agreement.

m. Exhibits and Interpretation of Terms. All references to Exhibits refer to Exhibits
attached to this Agreement and all such Exhibits are incorporated herein by
reference. The words “herein, “hereof,” “hereinafter” and words of similar import
refer to this Agreement as a whole and not to any particular Section hereof. When
reference is made herein to an agreement, such reference includes any
modification, supplement, amendment, consolidation, replacement, restatement of
or substitution for such agreement as long as the consent of the Parties thereto
have been duly obtained to the extent required pursuant to the terms and
provisions of this Agreement, as it may by amended from time to time.
n. Amendment: Waiver. No alteration, amendment or modification hereof shall be
valid unless evidenced by a written instrument executed by the Parties hereto with
the same formality as this Agreement. The failure of any Party hereto to insist in
any one or more instances upon the strict performance of any of the covenants,
agreements, terms, provisions or conditions of this Agreement, or to exercise any
election or option herein contained, shall not be construed as a waiver or
relinquishment for the future of such covenant, agreement, term, provision,
condition, election or option, but the same shall continue and remain in full force
and effect. No waiver by any Party hereto of any covenant, agreement, term,
provision or condition of this Agreement shall be deemed to have been made
unless expressed in writing and signed by an appropriate official or officer on
behalf of such Party.
o. Consent. Unless otherwise specifically provided herein, no consent or approval
by any Party permitted or required under the terms of this Agreement shall be
valid unless the same shall be in writing, signed by the Party by or on whose
behalf such consent or approval is given. Except with respect to the City acting in
its governmental capacity, whenever in this Agreement the consent or approval of
any Party is required, unless expressly stated to the contrary, the granting of such
consent or approval shall be governed by a standard of reasonableness.
p. Binding Effect. Except as may otherwise be provided herein to the contrary, this
Agreement and each of the provisions hereof shall be binding upon and inure to
the benefit of the Parties hereto, and their respective permitted successors and
assigns.
q. Relationship of Parties. No partnership or joint venture is established by this
Agreement, or any other agreement referred to in this Agreement, between or
among the Parties.
r. Conflicts of Interest. The Parties acknowledge that this Agreement is subject to
the provisions of A.R.S. §38-511.
s. Attorneys’ Fees. If any controversy, claim or dispute arises between or among the
Parties from or relating to this Agreement, the prevailing Party shall be entitled to
recover reasonable costs, expenses and attorneys’ fees. For all purposes of this
Agreement and any other documents relating to this Agreement, the terms

“attorneys’ fees” or “counsel fees” shall be deemed to include paralegals and legal
assistants’ fees, and wherever provision is made herein or therein for the payment
of attorneys’ or counsel’s fees or expenses, such provision shall include, but not
be limited to, such fees and expenses incurred in any and all Arbitration, judicial,
bankruptcy, reorganization, administrative or other proceedings, including
appellate proceedings, whether such fees or expenses arise before proceedings are
commenced or after entry of a final judgment.
t. Liability Limitation. Notwithstanding and prevailing over any contrary provision
of, or implication in, this Agreement, no member, elected official, official,
employee, agent, or consultant of the City, and no direct or indirect equity holder,
officer, employee or agent of Vai shall be liable to the other Party hereto or any
successors in interest thereof, in the event of any Event of Default or other breach
by Vai or the City, respectively, for any amount that may become due to such
other Party or any successors in interest thereof, or on any other obligation under
the terms of this Agreement, except any such obligations that result from criminal
acts with respect hereto (i.e., acts that would constitute crimes were they
prosecuted).
u. Termination Statement. Promptly following the termination of this Agreement
pursuant to its terms, the Parties hereto shall execute and record a statement
confirming the termination of this Agreement in a form and with substance
reasonably acceptable to the Parties. Failure by the Parties to record such
statement will not alter the termination of the Agreement.
v. Preserve State Shared Revenue.
i. Notwithstanding any other provision of, or limitation in, this Agreement to
the contrary, if pursuant to A.R.S. § 41-194.01 the Attorney General
(i) commences an investigation based on a claim alleging that this
Agreement, or any action of the City approving this Agreement, violates
any provision of state law or the Constitution of Arizona (a “Violation”),
(ii) thereafter determines that a Violation exists pursuant to A.R.S. § 41-
194.01(B)(1), and (iii) thereupon provides the statutorily-required notice
of the Violation to the City (the “Violation Notice”), the City shall
promptly meet with Vai and use all good faith efforts to modify the
Agreement (or otherwise address the matter or matters constituting the
Violation) in a manner to resolve the Violation and to substantially
provide to the Parties the burdens and benefits intended by the Agreement
(including the economic value to be received by the Parties). If within the
thirty (30) day period set forth in the Violation Notice (the “Violation
Notice Resolution Period”), the City and Vai cannot agree to so modify
this Agreement, this Agreement shall automatically terminate upon the
expiration of the Violation Notice Resolution Period, and (A) immediately
prior to such termination Vai shall reimburse City the User Fees
previously paid by City, and (B) upon such termination, all rights and

obligations under this Agreement shall terminate except for those that
specifically survive termination.
ii. Notwithstanding any other provision of, or limitation in, this Agreement to
the contrary, if pursuant to A.R.S. § 41-194.01 the Attorney General
(i) commences an investigation into a Violation as described above,
(ii) thereafter determines that a Violation may exist pursuant to A.R.S. §
41-194.01(B)(2), and (iii) thereupon files a special action in the Arizona
Supreme Court to resolve the issue, the City may, at the City’s sole and
absolute discretion after meaningful consultation with Vai, defend the
legality of this Agreement with respect to any such investigation and
action. In the event that the City elects to defend the legality of this
Agreement, Vai may, at Vai’s sole discretion, join such defense, but in any
case shall reasonably cooperate with the City in such defense. If the City
elects not to defend the legality of this Agreement, or the City elects to
defend the legality of this Agreement and the Arizona Supreme Court
determines that a Violation exists, this Agrement shall automatically
terminate, and (A) immediately prior to such termination Vai shall
reimburse City the User Fees previously paid by City, and (B) upon such
termination, all rights and obligations under this Agreemetn shall
terminate except for those that specifically survive termination.
iii. Additionally, if a Third Party claims that this Agreement violates any
provision of state law or the Constitution of Arizona (excluding any
Violation), (i) the City shall vigorously defend any such claim, and (ii) the
City and Vai shall use all and best faith efforts to modify the Agreement
so as to substantially provide the burdens and benefits intended by this
Agreement (including the economic value to be received by the Parties),
concurrently with the City defending such claim. Vai may, at Vai’s sole
discretion, join such defense, but in any case shall reasonably cooperate
with the City in such defense. If an appellate court of the State, beyond
any applicable appeals period, determines that this Agreement violates any
provision of state law or the Constitution of Arizona, either the City or Vai
may terminate this Agreement, and (A) immediately prior to such
termination Vai shall reimburse City the User Fees previously paid by
City, and, and (B) upon such termination, all rights and obligations under
this Agreement shall terminate except for those that specifically survive
termination.
iv. The City shall promptly notify Vai upon receipt of any written notice of
any investigation or action alleging a Violation, as described in clauses (a)
or (b) above, or a Third Party claim, as described in clause (c) above.
v. This Section 11(v) shall survive termination of this Agreement.

IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the date set
forth above.

VAI RESORTS, LLC

an Arizona limited liability company

__________________________________________

Grant Fisher, President

CITY OF GLENDALE,

an Arizona municipal corporation

__________________________________________

Kevin R. Phelps, City Manager

ATTEST:

Julie K Bower, City Clerk
(SEAL)

APPROVED AS TO FORM:

Michael D. Bailey, City Attorney