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When recorded, return to:
Chandler City Attorney’s Office
City of Chandler
Post Office Box 4008, Mailstop 602
Attn: City Attorney
DEVELOPMENT AGREEMENT
SITE 7
CITY OF CHANDLER,
an Arizona municipal corporation
and
One Chandler Owner, LLC,
a Delaware limited liability company
Approved by City Council on October 27, 2022
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DEVELOPMENT AGREEMENT
This development agreement (the “Agreement”) is made by and between the City of
Chandler, an Arizona municipal corporation (“City”) and One Chandler Owner, LLC, a Delaware
limited liability company (“Developer”). This Agreement is effective October 27, 2022 (the
“Effective Date”). City and Developer will be referred to in this Agreement collectively as
“Parties” and individually as a “Party.”
RECITALS
The Parties recite and state the following, each of which is a material term and provision
of this Agreement:
A.
The City owns improved real property equaling 1.77 acres along Buffalo Street,
from Arizona Avenue to Washington Street, within the City of Chandler, Maricopa County,
Arizona (the “Property”) as legally described in the attached Exhibit A (the “Property”); together
with all rights, privileges, easements and appurtenances thereto benefitting the Property (whether
recorded or not recorded).
B.
The Property is currently zoned with a mixture of different zoning designations,
including City Center District (CCD), Multi-family (MF-1) and Planned Area Development
(PAD). PAD re-zoning will help achieve maximum and desirable development on the Property.
C.
The Property was acquired by the City as part of its plan to redevelop and revitalize
the downtown area of the City as described in the Chandler Redevelopment Area Plan.
D.
Developer is the owner of the assembled parcels immediately adjacent to the
Property along its north boundary. Developer will develop its assembled parcels with the Property
as one development.
E.
Developer has proposed to build a seven-story, mixed-use structure with 290 units
of housing, 13,000 square feet of office space, 16,000 square feet of retail space, and a self-
contained parking structure that will complement the area surrounding the Property (“Project”).
The Parties believe the Project will contribute to the implementation and achievement of the City’s
goals of redevelopment and revitalization of the City’s downtown area. Throughout this
Agreement, the proposal accepted by the City will be referred to as the “Proposed Development
Plan.”
F.
The City, therefore, desires to convey the Property by sale to Developer, on the
terms and conditions set forth in this Agreement and the Purchase Agreement.
G.
The City and Developer hereby acknowledge and agree that redevelopment of the
Project will result in significant direct and indirect benefits accruing to the City and the general
public, including, without limitation, increased value of the Property, increased tax revenues,
expansion of the employment base within the City and incentivizing the redevelopment of the
City’s downtown.
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H.
This Agreement is intended to set forth certain obligations of the Parties with
respect to the contemplated redevelopment of the Property, as permitted by Arizona law. The
Parties intend for this Agreement to be a “Development Agreement” within the meaning of A.R.S.
§ 9-500.05 and an agreement to promote economic development activities within the meaning of
A.R.S. § 9-500.11 and redevelopment of the Chandler Redevelopment Area consistent with A.R.S.
§ 34-1471 et seq.
I.
The City has determined that the proposed development of the Property in
accordance with this Agreement is consistent with the City’s General Plan and the Chandler
Redevelopment Area Plan.
J.
This Agreement is part of a transaction between the City and Developer in which
the Developer intends to develop the Project in accordance with the terms of this Agreement.
Accordingly, the Parties intend that this Agreement and the Purchase Agreement (collectively, the
“Project Documents”) be construed harmoniously in order to give full effect to the intentions of
the Parties with respect to purchase and development of the Property as reflected by the Project
Documents. In the event of any conflict or ambiguity arising from the Project Documents, the
Project Documents shall control in the following order of precedence: first, this Agreement;
second, the Purchase Agreement.
AGREEMENT
In consideration of the foregoing recitals and representations and the mutual covenants and
conditions in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1.
DEFINITIONS. In this Agreement, unless a different meaning clearly
appears from the context:
1.2
“Agreement” means this Agreement, as amended or supplemented in writing from
time to time, and includes all exhibits and schedules attached hereto. References to Sections or
Exhibits are to this Agreement unless otherwise qualified.
1.3
“Applicable Laws” means the federal, state, county and local laws (statutory and
common law), charter provisions, codes, ordinances, rules, regulations, permit requirements, fee
schedules and assessments, and other requirements and official policies of Chandler which apply
to the development of all or any part of the Property.
1.4
“Business Day" means any day of the week when the Development Services
Department is open to the public for the conduct of the department's business.
1.5
“Certificate of Completion” means a certificate issued by the City certifying that a
building shell or other improvement is substantially completed in accordance with approved plans
in accordance with Applicable Laws.
1.6
“City” means the City of Chandler, an Arizona municipal corporation (and any
successor public body or officer hereafter designated by or pursuant to law).
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1.7
“City Code” or Code” means the Chandler City Code and regulations of the City.
1.8
“City Delay” means as defined in Section 3.2.
1.9
“Commence Construction”
or
“Commencement
of
Construction” or
“Construction Commencement” and variations means the occurrence of both of the following:
(i) the issuance of a construction permit, and (ii) the commencement of vertical construction of the
Minimum Improvements beyond grading of foundation for which a construction permit is issued.
1.10
“Completion of Construction” or “Construction Completion Date” shall mean
the issuance of a Certificate of Completion for the Minimum Improvements.
1.11
“Default” means as defined in Section 5.1.
1.12
“Developer” means One Chandler Owner, LLC, a Delaware limited liability
company (and any successor or assignee).
1.13
“Force Majeure Events” means any one or more of the following which prohibits
or materially interferes with, delays, or alters the performance of the applicable duty under this
Agreement: strikes or lockouts; shortages of material (excluding those caused by lack of funds) or
labor; acts of the public enemy; confiscation or seizure by any government or public authority;
injunction, restraining order or other court order or decree; blockades; insurrections; riots; civil
disturbances; epidemics; pandemics; regional or national health crises; acts of nature; fires;
explosions; nuclear reaction or radiation; radioactive contamination; as to Developer, the failure
or delay by the City in issuing any approvals, permits or certificates required, authorized or
contemplated by this Agreement, including a City Delay; any other similar cause (excluding those
caused by lack of funds); and any other event not within the reasonable control of the applicable
Party.
1.14
“Improvements” means all privately owned buildings and other structures to be
located within the Project including the Minimum Improvements.
1.15
“Purchase Price” means as defined in Section 2.
1.16
“Minimum Improvements” means as described in Section 3.1 and as depicted on
Exhibit B.
1.17
“Proposed Development Plan” means the development plan (described in Section
A) and depicted on Exhibit B as proposed by Developer for the Project that illustrates and
demonstrates the general components of the Minimum Improvements.
1.18
“Person” means and includes natural persons, corporations, limited partnerships,
general partnerships, joint stock companies, joint ventures associations, limited liability
companies, limited liability partnerships, trusts, land trusts, business trusts or other organizations,
whether or not legal entities.
1.19
“Project” means the Minimum Improvements plus any additional private land uses
constructed on the Property by Developer.
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1.20
“Project Documents” means as defined in Recital 1.1J. The Project Documents
include all exhibits to such documents.
1.21
“Public Infrastructure Improvements” means as described in Section 4.
1.22
“Purchase Agreement” means the purchase agreement in the form substantially
similar to the form attached as Exhibit C.
1.23
“The Property” means the real property specifically identified on Exhibit A.
1.24
“System Development Fee” means any fee owed by Developer in connection with
the development described herein pursuant to Chapter 38 of the Chandler City Code.
1.25
“Zoning Code” means Chapter 35 of the Chandler City Code.
SECTION 2.
ACQUISITION AND DISPOSITION OF THE PROPERTY.
2.1
Purchase. Developer will purchase the Property from City by executing a Purchase
Agreement in substantial compliance with the form attached as Exhibit C to this Agreement.
2.2
Purchase Price. The purchase price for the Property is two million nine hundred and
forty thousand dollars ($2,940,000.00) (the “Purchase Price”).
2.3
Purchase and Resale to City. If Developer purchases the Property from City but fails
to complete the Minimum Improvements listed in Section 3.1 within the time allowed in this
Agreement, and after all applicable cure periods have expired, City shall have the right, at its
option, to re-purchase the Property from Developer for the Purchase Price, as stated in Section 2.2.
City will adjust the purchase price based upon its reasonable costs to remediate any damage to the
Property and to restore the Property to its undeveloped condition.
2.4
Assignment. During the term of this Agreement, the Developer may not sell, assign,
or transfer its interest in this Agreement or the Property to another entity or person without the
express written consent of City. Notwithstanding the foregoing, Developer may assign or transfer
its rights and duties under this Agreement and the Purchase Agreement to an affiliate entity that is
100% controlled by Developer.
2.5
Developer Ownership and Management. Upon request by City, Developer must
furnish documentation to City that describes all persons or entities having ownership or
management of Developer, including a description of the ownership percentages and/or decision-
making authority of each person or entity. Developer may not make changes to the ownership
percentages or management authority of the individuals or entities having control of Developer
without the written consent of City.
SECTION 3. DEVELOPMENT OF PROPERTY.
3.1
Developer Obligations.
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A.
Minimum Improvements. The development proposed by Developer is depicted in
Exhibit B and is composed of a seven-story, mixed-use structure with 290 units of
housing, 13,000 square feet of office space, 16,000 square feet of retail space, and a self-
contained parking structure (“Minimum Improvements”). Developer must construct the
Minimum Improvements in substantial conformance to the Proposed Development Plan
depicted in Exhibit B unless City requires changes during the plan review process to
adhere to City’s design standards.
B.
The construction of the Minimum Improvements as described in this Section 3.1
and as depicted on Exhibit B shall occur in a single phase and in accordance with the
deadlines set forth herein. Developer’s compliance with the timing of its provision of the
Minimum Improvements and its compliance with the Proposed Development Plan were
material considerations for City’s determination to enter into this Agreement as a method
for revitalization and redevelopment of the Chandler Redevelopment Area. Developer’s
timely compliance is a material part of the consideration being provided by Developer for
the right to purchase and develop the Property.
C.
Alleyway Improvements and License. Developer agrees to improve and
incorporate into the Project the alleyway that exists between the Project and the adjacent
Jack-in-the-Box parcel. The alleyway improvements are considered part of the Minimum
Improvements required by the Agreement and will include paving, lighting, and
landscaping to create a safe and inviting pedestrian space (the “Alleyway
Improvements”). Developer will include the Alleyway Improvements on its site design
submittals to City staff and will incorporate City staff’s comments into the alleyway
design during the City’s preliminary development plan (“PDP”) review process.
Developer and City will execute a separate license agreement (“Alleyway License”)
within ninety days of the Effective Date for use of the alleyway to govern Developer’s
continued use and maintenance obligations for the alleyway property. Developer will
maintain the Alleyway Improvements during the entire term of the Alleyway License.
Developer agrees that this maintenance obligation is ongoing during the term of the
Alleyway License and will continue beyond the termination of this Agreement. If the
Parties are unable to execute the Alleyway License due to unforeseen circumstances
beyond the Parties’ control, the Parties agree that the Alleyway Improvements will be
removed from the Project and will not be part of the Minimum Improvements required of
Developer under this Agreement. At all times during the term of the Alleyway License,
City shall maintain ownership of the alleyway in fee. Upon termination of the Alleyway
License, City will assume all maintenance of the alleyway.
D.
City Development Standards. Developer shall construct the Minimum
Improvements according to City’s construction and development standards.
E.
Enhanced Municipal Services District. Developer understands that the Property is
contained within the Downtown Chandler Enhanced Municipal Services District and
Developer will promptly pay all associated assessments when due.
F.
Developer’s Construction Deadlines. Developer shall abide by the following
construction deadlines. If Developer has not performed the action by the dates set forth
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below, subject to Force Majeure Events, City may proceed to declare a Default as set forth
in Section 5. The timely construction of the Minimum Improvements is a material part of
the consideration provided by Developer under this Agreement.
CONSTRUCTION DEADLINES
ACTION
DEADLINE
Developer’s submittal of
administratively complete
application(s) for any land use
entitlements required for
Minimum Improvements
Six (6) months from the Effective
Date of this Agreement
Developer’s submittal of 100%
completed civil plans for the
grading permits and 100%
completed building construction
plans for the building
construction permits
Twelve (12) months from the
Effective Date of this Agreement
Developer’s Commencement of
Construction (“Construction
Commencement”)
Twelve (12) months from
approval of civil plans or twenty-
four (24) months from the
Effective Date of this Agreement,
whichever is sooner.
Developer’s Completion of
Construction (“Construction
Completion Date”)
Thirty (30) months from
Construction Commencement
G. Environmental Due Diligence. Developer is aware of historic soil and
groundwater contamination on the Property that occurred before City came into
possession. Developer will conduct its own environmental due diligence sufficient
to satisfy any concerns Developer may have about the suitability of the Property for
development pursuant to this Agreement. Developer may, at its own option, apply
for a prospective purchaser agreement with the Arizona Department of
Environmental Quality.
3.2
City’s Obligations.
A.
Coordination Meetings. From the Effective Date through the completion of the
Minimum Improvements, the respective designated representatives of the City and
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Developer shall meet once monthly or upon request of either party to coordinate the
development of the Project and to otherwise facilitate the orderly development of the
Project. This Section 3.2(A) may be waived upon mutual agreement of the Parties.
B.
Rights of Lenders. City is aware that Developer may obtain financing or
refinancing for acquisition, development and/or construction of the Property and/or
Project, in whole or in part, from time to time, by one or more third parties. The City
shall, upon written notice by Developer, provide to any Lender an estoppel certificate or
other document evidencing that this Agreement is in full force and effect and that no Event
of Default by Developer exists hereunder (or, if appropriate, specifying the nature and
duration of any existing Event of Default). Upon reasonable written request by a Lender,
City will enter into a separate non-disturbance and recognition agreement with the Lender
in such commercially reasonable form as may be consistent with the provisions of this
Section and otherwise reasonably acceptable to the City.
C.
Timing for City Approvals. City agrees to expedite its review of development
submittals according to the following schedule for granting or issuing its approvals or
permits (as applicable):
1. City will process Developer’s PAD zoning application, preliminary development
plan (“PDP”), and any other land use matter or entitlement required in connection
with Developer’s applications, as outlined in the Construction Deadlines in Section
3.1(F). City’s approval is contingent upon Developer conforming to all reasonable
comments and concerns of City staff and the City’s Planning and Zoning Commission,
as well as conformance with City Code and adopted applicable design standards. City
approval is also contingent upon Developer’s timely response to City concerns so that
adequate time is allowed for scheduling hearings before the Planning and Zoning
Commission and City Council as required by City Code.
2. City will provide submittal comments indicating the need for additional
information or design revisions from Developer within 10 working days of receipt by
City. Design submittals will be deemed “final and complete” when all comments by
City staff have been addressed to City’s reasonable satisfaction and the submittal
complies with City Codes and applicable design standards.
3. City will approve Developer’s civil drawings and issue all permits for on-site and
off-site work within fifteen (15) working days of Developer’s final and complete
submission to City and payment of all applicable fees.
4. City will approve Developer’s building construction plans and issue all permits for
construction within thirty (30) working days of Developer’s final and complete
submission to the City and payment of all applicable fees.
5. The failure of City to reasonably comply with any of the matters listed in this
Section 3.2 is a default by City under this Agreement and shall be a “City Delay.”
D.
Phasing of City Approvals. Although the construction of the Minimum
Improvements will be done in one phase, City agrees that Developer may submit its civil
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plans and drawings in phases to include separate submittals for: i) grading and drainage;
and ii) foundation plans; and iii) building plans. Developer will submit separate plan
submittals for the civil on-site and civil off-site designs. Developer will coordinate all
proposed civil and building phasing plans with City staff before formal submission.
SECTION 4.
PUBLIC INFRASTRUCTURE IMPROVEMENTS.
4.1
Developer shall construct offsite public infrastructure improvements within the
public right-of-way sufficient to serve the Minimum Improvements if City determines following
consultation with Developer that such improvements are necessary. Nothing contained herein
shall limit Developer’s obligation to provide additional street and traffic signal improvements or
public water and wastewater infrastructure should Developer obtain approvals to construct
Improvements on the Property that are of a greater intensity or density than the Minimum
Improvements.
SECTION 5.
DEFAULTS.
5.1
Events of Default. It shall be a default hereunder (“Default”) if either Party fails to
perform any of its obligations hereunder or under the Purchase Agreement, and such failure
continues for a period of thirty (30) days after Notice from the non-defaulting Party specifying in
reasonable detail the nature of the failure in the case of a monetary default, or ninety (90) days
after Notice from the non-defaulting Party specifying in reasonable detail the nature of the failure
in the case of a non-monetary default; provided, however, that no non-monetary Default shall be
deemed to exist if a cure within ninety (90) days is not practicable and the defaulting Party
commences a cure within such ninety (90) day period and diligently and expeditiously pursues
such cure to completion within one hundred eighty (180) days after Notice from the non-defaulting
Party.
5.2
Remedy of City. In the event of a Default by Developer and Developer’s failure to
timely cure the default as provided in this Section 5, the City’s remedy shall be as follows:
A.
City shall provide notice of the Default to Developer and Developer’s Lender (if
any) to provide the Lender such time to cure Developer’s Default as is reasonably
necessary, but in no event more than one hundred eighty (180) days from such Notice to
Lender; and
B.
If Developer or Developer’s Lender fails to cure Developer’s default within the
time permitted above, City shall have all remedies available to it at law or in equity. City
may institute a legal action to cure, correct, or remedy any default, to enforce any covenant
or agreement herein, to terminate this Agreement and/or the Purchase Agreement, or to
enjoin any threatened or attempted violation, including suits for declaratory relief, specific
performance, and actions for damages, provided, however, that claims for damages shall
be limited to actual damages. City hereby waives any right to seek indirect, consequential,
punitive, multiple, exemplary, or any other damages other than actual damages for a
breach of this Agreement by Developer.
C.
Remedy of City if Minimum Improvements are not Completed. In addition to those
remedies outlined above, if Developer does not complete the Minimum Improvements
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within the time specified in this Agreement, including all applicable cure periods after a
Notice of Default by City, then City may terminate this Agreement and may take
possession of the Property and all improvements thereon. If City elects to take possession
of the Property, City shall re-purchase the Property from Developer for the Purchase
Price, adjusted by City’s reasonable costs to remediate any damage to the Property and to
restore the Property to its undeveloped condition. If City invokes the remedy provided by
this section, Developer agrees to execute, acknowledge, and deliver to City at or before
expiration or termination of this Agreement a proper recordable instrument prepared by
City quit claiming and releasing to City any right, title, and interest in the Property and
the improvements thereon.
5.3
Remedy of Developer. In the event of a Default by City and failure by City to timely
cure the Default as provided in Section 5.1, Developer shall have all remedies available to it at law
or in equity. Developer, or any successor-in-interest or assignee, may institute a legal action to
cure, correct, or remedy any default, to enforce any covenant or agreement herein, to terminate
this Agreement and Purchase Agreement, or to enjoin any threatened or attempted violation,
including suits for declaratory relief, specific performance, relief in the nature of mandamus and
actions for damages, provided, however, that claims for damages shall be limited to actual
damages. Developer hereby waives any right to seek indirect, consequential, punitive, multiple,
exemplary or any other damages other than actual damages for a breach of this Agreement by City.
Notwithstanding the foregoing, solely in the event of a City Delay, Developer in its sole election
may elect to (i) treat the City Delay as a Force Majeure Event with each day of the City Delay
extending the dates of any required performance by Developer by the same number of days; or (ii)
give the City Notice and an opportunity to cure its Default in accordance with Section 5.1; or (iii)
without any requirement or obligation of notice and opportunity to cure, immediately terminate
this Agreement and the Purchase Agreement by written Notice to the City, in which event
Developer shall retain all other rights and remedies set forth in this Section 5.3.
5.4
Delays; Waivers. Except as otherwise expressly provided in this Agreement, any
delay by any Party in asserting any right or remedy under this Agreement shall 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 shall not be considered as a waiver of rights
with respect to any other default by the non-defaulting Party or with respect to the particular default
except to the extent specifically waived in writing.
5.5
Rights and Remedies Cumulative. Subject to the limitations of Section 5.2 and
Section 5.3, the rights and remedies of the Parties are cumulative, and the exercise by either Party
of any one or more of such rights shall not preclude the exercise by it, at the same or different
times, of any other right or remedy for any other default by the other Party.
5.6
Good Faith Efforts to Achieve Deadlines. Each Party agrees that it shall act in good
faith with respect to its efforts timely to make all submissions and comply with all deadlines in
order to allow the timely and successful performance of the other Party.
SECTION 6.
REPRESENTATIONS.
6.1
City Representations. The City represents and warrants to Developer that:
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A.
The City is duly formed and validly existing under Arizona law and that the
individual(s) executing this Agreement on behalf of the City is authorized and empowered
to bind the City.
B.
The City has the full right, power, and authorization to enter into and perform this
Agreement and each of the City’s obligations and undertakings under this Agreement,
and the City’s execution, delivery, and performance of this Agreement have been duly
authorized and agreed to in compliance with the requirements of its Charter and Arizona
law.
C.
All consents and approvals necessary to the execution, delivery and performance
of this Agreement and the Purchase Agreement have been obtained, and no further action
needs to be taken in connection with such execution, delivery, and performance; provided,
however, the Parties hereby acknowledge and agree that pursuant to Chandler’s City
Charter, additional documents may require approval from Chandler City Council.
D.
The City will execute and acknowledge when appropriate all documents and
instruments and take all actions necessary to implement, evidence and enforce this
Agreement.
6.2
Developer Representations. Developer represents and warrants to the City that:
A.
Developer is duly registered as a foreign entity doing business in Arizona and
validly existing under Arizona law and that the individual(s) executing this Agreement on
behalf of Developer is authorized and empowered to bind Developer.
B.
Developer has the full right, power and authorization to enter into and perform this
Agreement and of the obligations and undertakings of Developer under this Agreement,
and the execution, delivery and performance of this Agreement has been duly authorized
and agreed to in compliance with its organizational documents and Arizona law.
C.
All consents and approvals necessary to the execution, delivery and performance
of this Agreement have been obtained, and no further action needs to be taken in
connection with such execution, delivery and performance.
D.
Developer will execute and acknowledge when appropriate all documents and
instruments and take all actions necessary to implement, evidence and enforce this
Agreement.
SECTION 7.
EFFECTIVE DATE AND TERM
7.1
Effective Date. This Agreement shall be effective as of the date that it is approved
by the Chandler City Council. This Agreement shall be recorded in the Official Records of
Maricopa County, Arizona, in accordance with the requirement of A.R.S. § 9-500.05.
7.2
Term. The term of this Agreement (“Term”) shall be six (6) years from the Effective
Date, the earlier completion of the Minimum Improvements, or as otherwise set forth in this
Agreement, whichever is sooner.
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SECTION 8.
GENERAL PROVISIONS.
8.1
Force Majeure. If either Party is delayed or prevented from the performance of any
duty or obligation under this Agreement by reason of a Force Majeure Event, then the performance
of such duty or obligation shall be excused for the period of the delay, and the period for the
performance by such Party of any such duty or obligation shall be extended for a period equivalent
to the period of such delay. The Party subject to any Force Majeure Event shall provide Notice to
the other Party as soon as reasonably practicable.
8.2
Notices. Except as otherwise required by law, any notice, demand or other
communication required to be given by this Agreement (each, a “Notice”) shall be in writing and
shall be given by (i) personal delivery; (ii) by certified or registered U.S. Mail, return receipt
requested; or (iii) by any nationally recognized express or overnight delivery service (e.g., FedEx
or UPS), with all postage and other delivery charges prepaid and addressed to the Parties at their
respective addresses set forth below, or at such other address as a Party may designate in writing
pursuant to the terms of this paragraph:
To Developer:
One Chandler Owner, LLC
510 South Neil Street
Champaign, IL 61820
Attention: Christopher R. Saunders
Email: chris@greenstrealty.com
With a copy to:
Jennings, Strouss & Salmon, P.L.C.
One East Washington Street, Suite 1900
Phoenix, AZ 85004-2554
Attention: Brett D. Siglin
Email: bsiglin@jsslaw.com
To the City:
City of Chandler
Cultural Development Department (MS 498)
P. O. Box 4008
Chandler, AZ 85244-4008
Attention: Cultural Development Director
With a copy to:
City of Chandler
City Attorney’s Office
P. O. Box 4008
Chandler, AZ 84244-4008
Attention: City Attorney
8.3
Effective Date of Notices. Any Notice will (i) if delivered personally or delivered
through a same day delivery/courier service be deemed effective upon delivery or refusal to accept
delivery by the addressee; and (ii) if delivered by U.S. mail in the manner described above be
deemed effective upon the earlier of receipt or three (3) business days after deposit in a post office
operated by the United States or with a United States postal officer; and (iii) if sent by a recognized
national overnight delivery service be deemed effective one (1) business day after deposit with
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such service. Notwithstanding the foregoing, no payment shall be deemed to be made until
actually received in good and available funds by the intended payee.
8.4
Attorneys’ Fees. In the event of a dispute, action, proceeding, or litigation arising
out of or relating to this Agreement, including any action for declaratory, injunctive or other
equitable relief, the prevailing Party in any such action shall be entitled to reimbursement of its
reasonable attorneys’ fees and court costs, including, but not limited to, its costs of expert
witnesses, transportation, lodging and meal costs of the Party and witnesses, costs of transcript
preparation and other reasonable and necessary direct and incidental costs of such dispute.
8.5
Recordation. The City will cause this Agreement to be recorded in its entirety in the
Official Records of Maricopa County, Arizona, not later than ten (10) days after execution of the
Agreement by the Parties, and shall thereafter promptly provide a recorded copy of this Agreement
to Developer.
8.6
Governing Law. This Agreement shall be governed by and construed under the
internal, substantive laws of the State of Arizona, without reference to the principles of conflict of
laws. The City and Developer agree that the proper venue for any matters in connection herewith
shall be in the State or Federal courts located in Phoenix, Arizona. City and Developer hereby
submit themselves to the jurisdiction of such courts for the purpose of adjudicating any matters
relating to or arising from this Agreement or the Project Documents.
8.7
Severability. If any provision of this Agreement is declared void or unenforceable,
such provision shall be severed from this Agreement, which shall otherwise remain in full force
and effect. If any applicable law or court of competent jurisdiction prohibits or excuses the City
from undertaking any contractual commitment to perform under any provision of this Agreement,
the remaining portions of this Agreement shall remain in full force and effect, and the Parties will
negotiate diligently in good faith for such amendments of this Agreement as may be necessary to
achieve the original intent of this Agreement, notwithstanding such invalidity or unenforceability.
8.8
Amendment. No change or addition is to be made to this Agreement except by
written amendment executed by the City and Developer. Within ten (10) days after any
amendment to this Agreement, the City will cause such amendment to be recorded in the Official
Records of Maricopa County, Arizona, and shall thereafter promptly provide a recorded copy of
such amendment to Developer.
8.9
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,
evidence, confirm or carry out the matters contemplated by this Agreement or confirm the status
of (i) this Agreement as in full force and effect, and (ii) the performance of the obligations
hereunder at any time.
8.10
Calculation of 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 shall fall on a Saturday,
Sunday or legal holiday in the State of Arizona, then the duration of such time period or the date
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of performance, as applicable, shall be extended so that it shall end on the next succeeding day
which is not a Saturday, Sunday or legal holiday in the State of Arizona.
8.11
Section Headings. The Section headings contained in this Agreement are for
convenience in reference only and are not intended to define or limit the scope of any provision of
this Agreement. References to sections or exhibits are to Sections or Exhibits of this Agreement
unless otherwise qualified.
8.12
No Partnerships; Third Parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between Developer and the City. No term or provision of this Agreement is intended to, or shall,
be for the benefit of any Person not a party hereto, and no such other Person shall have any right
or cause of action hereunder, except for permitted transferees or assignees to the extent that they
assume or succeed to the rights and/or obligations of Developer under this Agreement.
8.13
Recitals, Exhibits. The Recitals set forth in this Agreement are incorporated herein
by reference and form a part 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. Parties
acknowledge, however, that the Maricopa County Recorder may refuse to record graphical
exhibits; and accordingly, some of the incorporated exhibits may not be contained in the recorded
copy of this Agreement but are deemed attached and incorporated herein nonetheless. Exhibits
that are not included in the recorded copy of this Agreement are attached to the copy of this
Agreement in the office of the Chandler City Clerk.
8.14
Entire Agreement. This Agreement and the Purchase Agreement and all exhibits
thereto attached and incorporated constitute the entire agreement between the Parties pertaining to
the subject matter hereof. All prior and contemporaneous agreements, representations, and
understandings of the Parties, oral or written, are hereby superseded and merged herein.
8.15
Prop 207 Waiver. Developer agrees to and does knowingly waive any and all rights
to compensation for diminution in value pursuant to A.R.S. § 12-1134 that may now or in the
future exist as a result of the approval or performance of, and all conditions, terms, and agreements
contained in this Agreement.
8.16
Conflict of Interest. This Agreement is subject to the cancellation provisions for
conflicts of interest pursuant to A.R.S. §38-511.
8.17
Time of Essence. Time is of the essence of this Agreement and each provision of
this Agreement.
8.18
Counterparts. This Agreement may be executed in counterparts, each of which will
be deemed an original, but all of which taken together constitute one agreement. A signed copy of
this Agreement delivered by facsimile, email, or other means of electronic transmission will be
deemed to have the same legal effect as delivery of an original signed copy.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
Effective Date.
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CITY:
CITY OF CHANDLER,
an Arizona municipal corporation
By:
Mayor Kevin Hartke
Date: ____________________________
ATTEST:
_______________________________
CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
The foregoing Agreement was acknowledged before me this ____ day of _________, 2022, by
Kevin Hartke, Mayor of City of Chandler, an Arizona municipal corporation, on behalf of the
municipal corporation.
Notary Public
My Commission Expires:
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EXHIBIT A
LEGAL DESCRIPTION
LOTS DESCRIPTION
Lots 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 268, 270, 272,274 TOWNSITE OF
CHANDLER, according to the plat of record in the office of the Maricopa County Recorder, in Book 5 of
Maps, Page 34.
EXCEPT the north 3.00 feet of Lot 268
EXCEPT that portion of Lot 139 described as follows:
BEGINNING at the Southwest corner of said Lot 139; thence South 89 degrees 24 minutes 17 seconds
East along the South line thereof, a distance of 3.00 feet; thence North 29 degrees 41 minutes 53 seconds
West 5.79 feet to the West line of said Lot; thence South 1 degree 30 minutes 18 seconds West along said
West Lot line, a distance of 5.00 feet to the Point of Beginning.
ALLEY VACATION RECORDED PER ORDINANCE NO. 3509 RECORDED 2004-0365563
A portion of TOWNSITE OF CHANDLER, according to the plat of record in the office of the Maricopa
County Recorder, in Book 5 of Maps, Page 34, being more particularly described as follows:
BEGINNING at a point marking the northeast corner of Lot 128 as shown in said Book 5 of Maps, Page
34 of Maricopa County records;
THENCE Westerly along the north line of Lots 128 through 139 to the northwesterly corner of Lot 139;
THENCE along the northerly prolongation of the west line of said Lot 139 to a point that lies 10 feet
north of said north line of Lots 128 through 139;
THENCE easterly, parallel with and 10 feet north of said north line of Lots 128 through 139 to a point
being on the southerly prolongation of a line parallel with and 10 feet west of the west line of Lots 270,
272 and 274;
THENCE northerly, parallel with and 10 feet west of said west line of Lots 270, 272 and 274 to a point on
the westerly prolongation of the north line of Lot 270;
THENCE easterly to the northwest corner of said Lot 270;
THENCE southerly along said west line of Lots 270, 272 and 274 to the southwest corner of Lot 274;
THENCE easterly along the south line of said Lot 274 of the southeast corner of said lot;
THENCE southerly to the POINT OF BEGINNING.
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EXHIBIT B
MINIMUM IMPROVEMENTS
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EXHIBIT C
PURCHASE AGREEMENT
1
REAL ESTATE PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
This Real Estate Purchase and Sale Agreement and Joint Escrow Instructions (the
“Agreement”) is made and entered into this 27th day of October 2022, (“Effective Date”) by and
between the CITY OF CHANDLER, an Arizona municipal corporation (“Seller”) and ONE
CHANDLER OWNER, LLC, a Delaware limited liability company, or its successors or assigns
under any of the Project Documents as defined below (“Buyer”). Seller and Buyer shall be referred
to in this Agreement, collectively as “Parties,” and individually as a “Party.”
AGREEMENT
1.
RECITAL.
This Agreement is part of a transaction between Seller and Buyer in which Seller agrees to
sell certain real property (the “Property”) to Buyer pursuant to that certain Development
Agreement (the “Development Agreement”) between Seller (named in such document as the City)
and Buyer (named in such document as the Developer), and upon which Buyer has proposed to
construct certain improvements (the “Project”) pursuant to the Development Agreement. This
Agreement, which has been executed as of the Effective Date, will be delivered to the Escrow
Holder (with Notice of such delivery to Seller) when Buyer is ready to purchase the Property as
set forth in the Development Agreement. Accordingly, the Parties intend that this Agreement and
the Development Agreement (collectively, the “Project Documents”) be construed harmoniously
in order to give full effect to the intentions of the Parties with respect to the development and
purchase of the Property as reflected by the Project Documents. Although this Agreement has been
entered into as of the Effective Date to bind the Parties as of the Effective Date, Buyer’s ability to
purchase the Property is subject to certain terms and conditions set forth in the Development
Agreement. In the event of any conflict or ambiguity arising from the Project Documents, the
Project Documents shall control in the following order of precedence: first, the Development
Agreement; second, this Purchase Agreement. Any reference to “City” and “Developer” in this
Agreement shall have the same meaning as “Seller” and “Buyer,” respectively.
2.
PURCHASE AND SALE.
Subject to the terms and conditions of this Agreement and Buyer’s compliance with the
terms and conditions of the Development Agreement, Seller agrees to sell, and Buyer agrees to
purchase, all of Seller’s right, title, and interest in and to that certain real property located in
Maricopa County, Arizona, referred to in this Agreement as the Property (not including the
alleyway), and legally described on Exhibit A and graphically shown on the Site Plan attached
hereto as Exhibit B.
A.
Purchase Process. Buyer will purchase the Property from Seller by executing the
Purchase Agreement within five (5) days of the effective date of the Development Agreement.
Upon execution of the Development Agreement, and provided Buyer is not in breach of the
Development Agreement beyond applicable notice and cure periods, Buyer shall have five (5) days
from the date of execution of the Development Agreement to deliver the fully-executed original
Purchase Agreement to the Escrow Holder, as that term is defined in the Purchase Agreement.
Buyer shall provide Notice to Seller of Buyer’s delivery of the executed Purchase Agreement to
2
Escrow Holder and Seller shall promptly thereafter provide its executed Purchase Agreement to
Escrow Holder. Upon Escrow Holder’s receipt of the fully-executed Purchase Agreement, the
Parties shall proceed with the purchase and sale of the Property in accordance with the terms and
conditions set forth in the Development Agreement and this Purchase Agreement, including
satisfaction of all conditions stated in the Development Agreement that must be met before Buyer
may purchase the Property.
B.
Earnest Money Deposit. Concurrently with Buyer’s delivery of the fully-executed
Purchase Agreement to Escrow Holder, Buyer will deposit an amount equal to one percent (1%)
of the Purchase Price as Buyer’s earnest money deposit (“Deposit”) with Escrow Holder, in cash,
certified or bank cashier’s check, or other form of collected funds.
C.
Purchase Price. The purchase price for the Property shall be two million nine
hundred and forty thousand dollars ($2,940,000.00) (the “Purchase Price”).
D.
Purchase and Resale to Seller. Should the Buyer purchase the Property from Seller,
but fail to complete the Minimum Improvements within the time allotted as set forth in the
Development Agreement, Seller shall have the right, at its option, to re-purchase the Property from
the Buyer for the Purchase Price. Seller may deduct from the purchase price its reasonable costs
to remediate any damage to the Property and to restore the Property to its undeveloped condition.
3.
ESCROW.
A.
Opening of Escrow. For purpose of this Agreement, the Escrow shall be deemed
opened on the date Escrow Holder shall have received the Deposit provided in Section 2(B) from
Buyer and three (3) fully executed duplicates of this Agreement from Buyer and Seller (the
“Opening of Escrow”). Escrow Holder shall notify Buyer and Seller, in writing, of the date Escrow
is opened. In addition, Buyer and Seller agree to execute, deliver, and be bound by any reasonable
and customary supplemental escrow instructions of Escrow Holder or other instruments as may be
reasonably required by Escrow Holder in order to consummate the transaction contemplated by
this Agreement. Any such supplemental instructions shall not conflict with, amend, or supersede
any portion of this Agreement. If there is any inconsistency between such supplemental
instructions and this Agreement, this Agreement shall control.
B.
Close of Escrow. For purposes of this Agreement, the Close of Escrow (the
“Closing” or “Close of Escrow”) shall be defined as the date the Special Warranty Deed, the form
of which is attached hereto as Exhibit “C” (the “Deed”), conveying the Property to Buyer, recorded
in the Official Records of Maricopa County, Arizona. Unless this Agreement and Escrow related
thereto have been properly cancelled pursuant to the terms of this Agreement, the Close of Escrow
shall occur on the date which is sixty (60) days after the Opening of Escrow (the “Closing Date”)
or on such date as is mutually agreed upon by the Parties with written notifications to the Escrow
Holder specifying the agreed upon date. In the event that Seller cannot cure any Title Defect or
provide all of the requisite approvals by the Closing Date, then Buyer may (but is not obligated to)
extend the Closing Date for successive thirty (30) day periods to permit Seller to proceed diligently
and in good faith to cure such defects.
C.
Inspection Review Period.
a. Buyer shall have a period expiring at 5:00 p.m. (Arizona time) on the date that is
sixty (60) days from the Opening of Escrow (as defined below) to complete its
3
review of title, survey, engineering studies, environmental site assessment, and any
other site due diligence deemed appropriate by Buyer (the “Inspection Period” or
the “Feasibility Period”). Such studies and inspections include, but are not limited
to, any engineering, environmental, soils, feasibility, marketing, or economic
studies and investigations of the Property and Buyer’s intended development on the
Property that Buyer deems appropriate. Buyer shall have the right to enter the
Property and conduct its tests or studies. Seller shall reasonably assist Buyer with
Buyer’s due diligence activities and efforts to obtain governmental approvals for
Buyer’s proposed multifamily development project on the Property, at no out-of-
pocket expenses to Seller.
b. In the event the Buyer determines for any reason or for no reason, in Buyer’s sole
discretion, that the Property is unsuitable for Buyer’s needs and gives written notice
of termination to Seller during the Inspection Period in which Buyer elects to
terminate this Agreement, then this Agreement shall become null and void. If
Buyer elects to terminate this Agreement pursuant to this paragraph, the Deposit
and accrued interest shall be returned to Buyer.
c. Buyer shall only be deemed to have elected not to proceed with this Agreement in
the event it issues an affirmative written “Notice Not to Proceed” prior to the lapse
of the Inspection Period to Seller and Escrow Holder. In the event Buyer elects not
to terminate this Agreement in accordance with the foregoing, then this Agreement
shall remain in full force and effect and the transaction shall continue to Closing,
subject to the other terms of the Agreement. In the event that Buyer elects to
terminate this Agreement in accordance with the foregoing by delivery of a written
Notice Not to Proceed, then this Agreement will automatically terminate as of the
expiration of the Inspection Period, in which event Escrow Holder shall cancel the
Escrow and promptly return the Deposit to Buyer and all other documents and funds
to the depositing Party, and except as otherwise specified in this Agreement, neither
Party will have any further obligation or liability to the other.
D.
Entry onto the Property. Seller hereby grants to Buyer and Buyer’s employees,
agents, consultants, and contractors a non-exclusive license to enter upon the Property at
reasonable hours for the purpose of conducting, at Buyer’s expense, Buyer’s review and
inspections of the Property. Seller shall reasonably cooperate (at no cost to Seller) with Buyer’s
inspections of the Property. Buyer shall indemnify, defend, and hold Seller and the Property
harmless from any claims, liabilities, losses, damages, liens, costs, or expenses resulting from
Buyer’s activities on the Property. Prior to Buyer or its agents conducting any testing or
investigation involving physical disturbance of any portion of the Property, Buyer shall obtain
Seller’s written consent thereto, which consent may not be unreasonably withheld, conditioned or
delayed.
E.
Seller Deliverables. Within five (5) business days of the Opening of Escrow, Seller
shall deliver or cause to be delivered to Buyer, to the extent in Seller’s possession, custody or
control the following: a current survey of the Property, if any, in Seller’s possession; copies of
all plans, permits, drawings and other government approvals; any agreements, documents, plans,
drawings, specifications, construction warranties and guarantees, tax bills, appraisals, engineering
reports, environmental studies, building permit applications, and other reports regarding the
Property. Seller is under no obligation to acquire or create any such items listed in this section that
do not already exist.
4
F.
Acts Affecting the Property. From and after the date hereof, Seller, will refrain
from, without the prior written consent of Buyer: (a) modifying the status of the Property for real
property tax purposes; (b) performing any improvements, including any grading, excavation or
construction upon or about the Property; or (c) creating or incurring, or suffering to exist any
development agreement, mortgage, lien, pledge or other encumbrances in any way affecting the
Property, other than the Permitted Exceptions (nor shall Seller amend or terminate any Permitted
Exception without the prior written consent of Buyer). Seller will observe all laws, ordinances,
regulations and restrictions materially affecting the Property and its use, and will pay taxes on the
Property that come due prior to the Closing not later than the Closing.
4.
CONDITIONS PRECEDENT.
A.
Condition of Title. It shall be a condition to the Close of Escrow that title to the
Property be conveyed to Buyer by the Special Warranty Deed (in the form set forth in Exhibit C)
subject only to the following conditions of title (“Approved Condition of Title”):
a. a lien to secure payment of real property taxes not delinquent;
b. Those matters set forth on Exhibit D attached to this Agreement; and
c. any matters of record either caused or placed by or on behalf of Buyer, or which
were consented to in writing by Buyer (collectively, the “Permitted Exceptions”).
B.
Title Policy. At Close of Escrow, Seller shall pay for, and Escrow Holder shall
furnish Buyer, a standard coverage ALTA owner’s policy of title insurance (the “Title Policy”) in
the amount of the Purchase Price insuring Buyer fee simple title to the Property, subject to the
usual printed exceptions contained in such title insurance policies and the Permitted Exceptions
(the “Report,” defined below), and which are not objected to or are waived in the manner described
as Approved Condition of Title. In the event Buyer desires an ALTA extended coverage policy,
Buyer shall pay the difference in cost between an ALTA extended coverage and a standard
coverage ALTA owner’s policy, together with all costs associated with any inspections or surveys
of the Property required for such additional coverage.
C.
Conditions to Close of Escrow.
a. Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s obligation to
consummate the transaction contemplated by this Agreement are subject to the
satisfaction or waiver of the following conditions for Buyer’s benefit on or prior to
the date designated below:
i. Title. Seller shall deliver fee title to the Property to Buyer subject only to
those exceptions constituting the Approved Condition of Title. Seller, at
Seller’s sole cost and expense, shall diligently and promptly secure the
release of any other matter of record (“Title Defect”). Buyer may, but is
not obligated, to accept an endorsement from Escrow Holder, “insuring
over” any such exception.
ii. Seller’s Representations. All representations and warranties made by Seller
to Buyer in this Agreement shall be true and correct as of the Close of
Escrow.
5
b. Conditions to Seller’s Obligations. For the benefit of Seller, the Close of Escrow
shall be conditioned upon the occurrence and/or satisfaction of each of the
following conditions:
i. Buyer’s Obligations. Buyer shall have timely performed all of the
obligations required by the terms of the Project Documents to be performed
by Buyer; and
ii. Buyer’s Representations. All representations and warranties made by Buyer
to Seller in this Agreement shall be true and correct as of the Close of
Escrow.
5.
AS-IS, WHERE IS, WITH ALL FAULTS PURCHASE.
Buyer acknowledges and agrees as follows:
A.
That the Property is to be conveyed by Seller to Buyer at the time of Closing in
“AS-IS, WHERE-IS, WITH ALL FAULTS”; and
B.
That Buyer represents and warrants to Seller that it will have conducted its own
independent inspection, investigation, evaluation, and analysis of the Property as it deems
necessary or appropriate in so acquiring the Property from Seller.
6.
CLOSING.
A.
Closing Date, Costs, and Prorations. Unless Buyer cancels the Agreement and the
Escrow related thereto on or before the expiration of the Due Diligence Period, the purchase and
sale hereunder shall be closed in the office of the Escrow Holder sixty (60) calendar days after the
Opening of Escrow or on such date as is mutually agreed upon by the Parties with written
notifications to the Escrow Holder specifying the agreed upon date. Buyer and Seller shall deposit
with Escrow Holder all instruments, documents, and monies necessary to complete the sale and
purchase in accordance with this Agreement. This Agreement is intended to constitute escrow
instruction to Escrow Holder. At Closing, Seller will pay all title insurance premiums for the title
policy in the amount of the Purchase Price, except for the additional cost of any extended coverage
opted for by Buyer, the cost of which must be paid by Buyer. The Parties will each pay half of the
closing escrow fee, recording fees, and the excise or other conveyance tax on this conveyance, if
any. Seller and Buyer shall each pay their respective attorneys’ fees. Real and Personal Property
taxes, if any, payable in the year of Closing, shall be prorated between Seller and Buyer as of 12:00
midnight on the day immediately preceding the Closing Date. If any encumbrance is required to
be removed prior to Close of Escrow, in whole or in part, Seller shall discharge such encumbrance
or defect or part thereof out of the Purchase Price paid by Buyer at Closing.
B.
Seller Closing Documents. At Closing, Seller shall execute and deliver all
documents necessary to effect and complete the Closing, including, but not limited to, the
following documents:
a. The Special Warranty Deed, duly executed by Seller, acknowledged as required,
subject only to the Permitted Exceptions, which deed shall be in Escrow Holder’s
standard form for recording. The deed shall comply with A.R.S. § 33-404 to the
extent required by applicable law;
6
b. A Certificate of non-foreign status, within the meaning of the Foreign Investment
in Real Property Tax Act, duly executed by Seller in the form attached hereto as
Exhibit E;
c. A joint Settlement Statement prepared by Escrow Holder for execution by Seller;
d. Deliver to the Escrow Holder evidence satisfactory to it of Seller’s authority to
execute and deliver the documents necessary to consummate the transaction
contemplated thereby;
e. Execute and deliver to Escrow Holder a general assignment of any warranties,
approvals or appurtenances related to the Property (the “General Assignment”) in
a form reasonably acceptable to the Parties;
f. Deliver to Buyer exclusive possession of the Property, free of any leases or
occupants.
g. Such other documents as Buyer or Escrow Holder may reasonably request in
connection with this transaction.
C.
Buyer Closing Documents. At the Closing, Buyer shall execute and deliver all
documents and perform such actions necessary to effect and complete the Closing, including, but
not limited to, the following:
a. The amounts required under the Purchase Price in cash, cashier’s check, wire
transfer or other immediately available funds;
b. A joint Settlement Statement prepared by Escrow Holder for execution by Buyer;
c. Such other documents as Seller or Escrow Holder may reasonably request in
connection with this transaction.
7.
REPRESENTATIONS AND WARRANTIES.
A.
Seller’s Representations and Warranties. As of the Effective Date and the Closing
Date, Seller represents and warrants to Buyer as follows:
a. Seller is owner and holder of record of fee simple title in and to the Property with
full right, power, and authority to transfer it and to perform all of its obligations
under this Agreement.
b. All actions on the part of Seller which are required for the execution, delivery, and
performance by Seller of this Agreement and each of the documents and
agreements to be delivered by Seller at the Closing have been duly and effectively
taken.
c. Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue
Code of 1986, as amended.
d. Seller has no knowledge of any violation of applicable law, ordinance, rule,
regulation, or requirement of any governmental agency affecting or relating to the
7
Property (the “Violation”), which renders the sale and transfer of the Property at
Closing as contemplated by this Agreement unenforceable. To the extent such
Violation is disclosed by Seller or revealed by the Title Documents, Seller
covenants to cause to remove the Violation prior to the Close of Escrow.
e. Except with respect to the Project Documents and those matters noted in Exhibit D
or liens, claims, encumbrances, or right of any third party placed on the Property
by Buyer, there is no transfer, lien, claim, encumbrance, or right of any third party
on or existing with respect to the Property or Seller’s interest in the Property; and
Seller shall indemnify, defend, pay, and hold harmless Buyer for, from, and against
any and all such transfers, liens, claims, encumbrances, or rights.
f. Seller has not: (i) made a general assignment for the benefit of creditors; (ii) filed
any voluntary petition in bankruptcy or suffered the filing of any involuntary
petition by Seller’s creditors; (iii) suffered the appointment of a receiver to take
possession of all or substantially all of Seller’s assets; (iv) suffered the attachment
or other judicial seizure of all, or substantially all, of Seller’s assets; (v) admitted
in writing Seller’s inability to pay its debts as they come due; or (vi) made an offer
of settlement, extension or composition to its creditors generally.
g. There are no pending or threatened condemnation or similar proceeding affecting
the Property or any portion thereof.
h. There are no pending actions, suits, arbitrations, claims or proceedings, at law or in
equity, affecting all or any portion of the Property or in which Seller is a party by
reason of Seller’s ownership of the Property.
i. Seller has received no written notice of any plan, study or effort of regulatory
authorities which would materially affect the use of the Property, or any portion
thereof, for its intended use as a multifamily Project or any intended public
improvements which will result in any charge being levied against, or any lien
assessed upon, or any special assessment lien on the Property or any portion thereof.
j. Seller is not currently a party to, and shall not enter into, any contracts, options or
other obligations or rights for the purchase or sale of the Property. Seller has not
entered into any leases, rights of possession or occupancy or first refusals or options
to purchase the Property as of the Effective Date.
k. No written notices of violation of any governmental regulations relating to the
Property have been received by Seller and seller is not aware that any such
violations exist.
l. Seller has no knowledge of any special assessments or charges which have been
levied against the Property.
m. Other than the Development Agreement, there is no governmental development
agreement between any party and the City with respect to any portion of the
Property including any agreement within the meaning of A.R.S. Section 9-500.
n. Seller shall not, without the prior written consent of Buyer, consent to or convey
any interest in the Property, including any lease, and Seller shall not consent to or
8
subject the Property to any additional liens, encumbrances, covenants, conditions,
easements, rights-of-way or similar matters after the Effective Date. Seller shall
not consent to or cause to be executed any zoning or special use permit applications
for all or any portion of the Property except as contemplated by the Development
Agreement.
o. The representations and warranties hereunder and the right of enforcement thereof
shall survive for a period of one (1) year from the date of the Closing.
p. In the event Seller learns of or receives new information after the date of this
Agreement in connection with any of the foregoing representations or warranties prior
to Closing which would make the representation or warranty incorrect, Seller shall
promptly give notice thereof to Buyer. In the event of such pre-Closing notice from
Seller relating to a change in a representation or warranty that is not caused by Seller’s
actions following the date of this Agreement, Seller’s representation shall be deemed
amended by such notice and Buyer shall have ten (10) business days following receipt
of such notice in which to elect to accept the change to Seller’s representations and
warranties or to terminate this Agreement by giving written notice of termination to
Seller and the Deposit shall be returned to Buyer and this Agreement shall be of no
further force and effect.
B.
Buyer’s Representations and Warranties. As of the Effective Date and the Closing
Date, Buyer represents and warrants to Seller as follows:
a. Buyer is duly organized, validly existing and in good standing under the laws of
the State of its organization, and has full power and authority, and has obtained all
required consents, to enter into and to perform its obligations under this Agreement.
Each of the persons executing this Agreement on behalf of Buyer has full power
and authority and has obtained all required consents to do so, and to perform every
act and to execute and deliver every document and instrument necessary or
appropriate to consummate the transactions contemplated hereby.
b. All entity action on the part of Buyer which is required for the execution, delivery,
and performance by Buyer of this Agreement and each of the documents and
agreements to be delivered by Buyer at the Closing has been (or will be by the
Closing) duly and effectively taken.
8.
REAL ESTATE COMMISSIONS
Each Party hereby represents and warrants to the other that there are no claims for
brokerage commission, finder’s or similar fees in connection with the transaction contemplated by
this Agreement, and each Party hereby agrees to indemnify and hold harmless the Party from any
and all liabilities, claims, expenses, costs and damages arising from the claim of any broker, finder,
or other agent claiming to have acted on behalf of the indemnifying Party.
9.
DEFAULT AND DEFAULT REMEDIES.
A.
Seller’s Default. If on or before the Closing Date, Seller materially breaches any of
the terms of this Agreement and fails to cure such breach within five (5) calendar days following
written notice thereof given by Buyer to Seller, Buyer, in its sole election, shall have the right (i)
9
to terminate this Agreement by written notice to Seller and Escrow Holder, in which event Escrow
Holder shall release to Buyer the Deposit referred to in Section 2.B., or (ii) to avail itself of any
remedy available to Buyer, at law or in equity, including an action for damages or an action for
Seller’s specific performance of this Agreement.
B.
Buyer’s Default. If on or before the Closing Date, Buyer materially breaches the
Development Agreement and the Close of Escrow fails to occur by reason of such default, then in
any such event, Seller shall not hold Buyer in default of this Agreement until all applicable notice
requirements and opportunities to cure set forth in the Development Agreement have expired. In
the event of an uncured default of Buyer under the Development Agreement, or a failure of Buyer
to cure any default relating to the payment of the Purchase Price within thirty (30) days after
written notice of such default from Seller to Buyer, then Seller may instruct Escrow Holder to
cancel the Escrow and Seller may terminate this Agreement, in which event the Deposit then in
Escrow Holder shall be paid to Seller as agreed upon liquidated damages, as its exclusive remedy
and in full settlement of any claims. Such amount is agreed upon between Seller and Buyer as
liquidated damages due to the uncertainty and difficulty of ascertaining and measuring actual
damages, and the uncertainty thereof and represents the Parties’ reasonable estimate of such
damages as a result of Buyer’s failure to consummate this transaction and is not intended as a
forfeiture or penalty. In such event Buyer and Seller shall be released of any further obligation
under this Agreement.
10.
ESCROW HOLDER.
Buyer may select the escrow agent and title insurance underwriter to administer the escrow
and issue the title insurance commitment and policy contemplated in this (the “Escrow Holder”).
By its subsequent execution of this Agreement Escrow Holder agrees to perform hereunder and to
hold and disburse contract payments as herein provided. Escrow Holder shall not be liable for any
acts taken in good faith, shall only be liable for its willful default or gross negligence, and may, in
its sole discretion, rely upon the written notices, communications, orders or instructions given by
Buyer or Seller. In the event of a dispute between Buyer and Seller under this Agreement sufficient
in the discretion of Escrow Holder to justify its doing so, Escrow Holder shall be entitled to tender
into the registry or custody of the courts having jurisdiction over such matters all money or
property in its hands under the terms of this Agreement, together with such legal proceedings as it
deems appropriate, and thereupon to be discharged from all further duties under this Agreement.
11.
NOTICES.
Any notices, requests, claims, demands, or other communications required or permitted
under, or otherwise made in connection with, this Agreement, shall be in writing and shall be
deemed to have been duly given (a) when delivered in person, (b) three (3) business days after
mailing by first-class mail, return receipt requested, or (c) on the next business day if transmitted
by national overnight courier for next business day delivery (with confirmation of delivery), in
each case, addressed as follows (or at such other address for a recipient as shall be specified in a
notice given in accordance with this Section):
To Seller:
City of Chandler
Cultural Development Department (MS 500)
P. O. Box 4008
Chandler, AZ 85244-4008
Attention: Cultural Development Director
10
With a copy to:
City of Chandler
City Attorney’s Office
P. O. Box 4008
Chandler, AZ 84244-4008
Attention: City Attorney
If to Buyer:
One Chandler Owner, LLC
510 South Neil Street
Champaign, IL 61820
Attention: Christopher R. Saunders
Email: chris@greenstrealty.com
With a copy to:
Jennings, Strouss & Salmon, P.L.C.
One East Washington Street, Suite 1900
Phoenix, AZ 85004-2554
Attention: Brett D. Siglin
Email: bsiglin@jsslaw.com
If to Escrow Holder: At the address provided in Escrow Holder’s Acceptance.
12.
MISCELLANEOUS.
A.
Attorneys’ Fees. Should any Party hereto bring any action against any other Party
related in any way to this Agreement, its validity, enforceability, scope, or subject matter, the
prevailing Party shall be awarded its reasonable attorneys’ fees and costs incurred for prosecution,
defense, consultation, or advice in connection with such action.
B.
Survival. Except as otherwise provided in this Agreement, all warranties,
representations, and agreements contained herein or arising out of the sale of the Property by Seller
to Buyer (including, but not limited to, Seller’s and Buyer’s warranties, representations, and
agreements) shall survive the delivery and recordation of the Special Warranty Deed, the payment
and delivery of the Purchase Price, and the Closing of the purchase and sale of the Property.
C.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona without regard to conflicts of laws principles that would
require the application of any other law. Each Party hereby consents to the exclusive jurisdiction
of any court of competent jurisdiction in Maricopa County, Arizona, in any action related to or
arising under this Agreement and agrees that venue is proper in such court.
D.
Integration; Modification; Waiver. This Agreement, exhibits, and closing
documents pursuant to this Agreement constitute the complete, integrated, and final expression of
the Agreement of the Parties relating to the Property. This Agreement cannot be modified except
by an instrument in writing (referring specifically to this Agreement) executed by the Party against
whom enforcement of the modification is sought.
11
E.
Invalid Provisions. If any one or more of the provisions of this Agreement, or the
applicability of any such provision to a specific situation, shall be held invalid or unenforceable,
such provision shall be modified to the minimum extent necessary to make it or its application
valid and enforceable, the Agreement shall be deemed reformed accordingly, and the validity and
enforceability of all other provisions of this Agreement and all other applications of any such
provision shall not be affected hereby.
F.
Counterpart Execution. This Agreement may be executed in several counterparts,
each of which shall be fully effective as an original, and all of which together shall constitute one
and the same instrument.
G.
Time of the Essence. Time is of the essence of this Agreement and of the obligations
of the Parties to purchase and sell the Property, it being acknowledged and agreed by and between
the Parties that any delay in effecting a closing pursuant to this Agreement may result in loss or
damage to the Party in full compliance with its obligations hereunder. Notwithstanding any period
for performance of any Party’s obligations contained in any Escrow Instructions, the rights of the
Parties hereunder shall be governed by the dates and times set forth in this Agreement.
H.
Binding Effect. This Agreement shall be binding upon and inure to the benefit of
Seller and Buyer, and their respective heirs, successors, and assigns.
I.
Further Acts. In addition to the acts recited in this Agreement to be performed by
Seller and Buyer, Seller and Buyer agree to perform or cause to be performed at the Closing or
after the Closing any and all such further acts as may be reasonably necessary to consummate the
transactions contemplated hereby and, upon written request from the other Party, to execute,
acknowledge and deliver all documents, instruments, and affidavits necessary to give effect to this
Agreement and the intent of the Parties.
J.
Headings; Construction. The headings which have been used throughout this
Agreement have been inserted for convenience of reference only and do not constitute matter to
be construed in interpreting this Agreement. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words in the singular number shall be held to
include the plural and vice versa, unless the context requires otherwise. The words “herein,”
“hereof,” “hereunder,” and other similar compounds of the word “here” when used in this
Agreement shall refer to the entire Agreement and not to any particular provision or section. Seller
and Buyer acknowledge that each Party and its counsel have reviewed this Agreement and that the
rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall
not be employed in the interpretation of this Agreement or any document executed and delivered
by either Party in connection with the transactions contemplated by this Agreement.
K.
Business Day. If the day for performance of any covenant or obligation under this
Agreement falls on a Saturday, Sunday, or legal holiday, the date for performance thereof shall be
extended to the next Business Day. Similarly, if the date for the performance of any covenant or
obligation under this Agreement involving the Escrow Holder falls on a Saturday, Sunday, or legal
holiday on which Escrow Holder is closed for business to the public, the date for performance
thereof shall be extended to the next Business Day on which Escrow Holder is open for business
to the public. The term “Business Day” shall mean a day that is not a Saturday, Sunday, or legal
holiday.
12
L.
Conflict of Interest. The Parties acknowledge that this Agreement is subject to
cancellation pursuant to the provisions of Arizona Revised Statutes § 38-511.
IN WITNESS WHEREOF, the Parties have executed the foregoing Agreement as of the
date appearing above.
SELLER:
CITY OF CHANDLER,
an Arizona municipal corporation
By:
Joshua H. Wright, City Manager
ATTEST:
_______________________________
CITY CLERK
APPROVED AS TO FORM:
CHANDLER CITY ATTORNEY
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
The foregoing Agreement was acknowledged before me this ____ day of _________, 2022, by
Joshua H. Wright, the City Manager of the City of Chandler, an Arizona municipal corporation,
on behalf of the municipal corporation.
Notary Public
My Commission Expires:
13
BUYER:
ONE CHANDLER OWNER, LLC
A Delaware limited liability company
By:______________________________
Name:____________________________
Title:_____________________________
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
The foregoing Agreement was acknowledged before me this _____ day of __________, 2022, by
___________________________, the __________________________ of One Chandler Owner,
LLC, a Delaware limited liability company.
Notary Public
My Commission Expires:
14
ESCROW HOLDER’S ACCEPTANCE
The undersigned agrees to act as Escrow Holder in connection with the transaction
contemplated by this Agreement:
Name of Company:
Premier Title Agency
Name of Escrow Officer:
Rich Newton
Title:
VP/Branch Manager
Signature:
_________________________________
Date:
_________________________________
Address for Notices:
2910 E Camelback Road, Suite 100
Phoenix, AZ 85016
rnewton@ptanow.com
15
EXHIBIT A
Property Legal Description
LOTS DESCRIPTION
Lots 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 268, 270, 272,274 TOWNSITE OF
CHANDLER, according to the plat of record in the office of the Maricopa County Recorder, in Book 5 of
Maps, Page 34.
EXCEPT the north 3.00 feet of Lot 268
EXCEPT that portion of Lot 139 described as follows:
BEGINNING at the Southwest corner of said Lot 139; thence South 89 degrees 24 minutes 17 seconds
East along the South line thereof, a distance of 3.00 feet; thence North 29 degrees 41 minutes 53 seconds
West 5.79 feet to the West line of said Lot; thence South 1 degree 30 minutes 18 seconds West along said
West Lot line, a distance of 5.00 feet to the Point of Beginning.
ALLEY VACATION RECORDED PER ORDINANCE NO. 3509 RECORDED 2004-0365563
A portion of TOWNSITE OF CHANDLER, according to the plat of record in the office of the Maricopa
County Recorder, in Book 5 of Maps, Page 34, being more particularly described as follows:
BEGINNING at a point marking the northeast corner of Lot 128 as shown in said Book 5 of Maps, Page
34 of Maricopa County records;
THENCE Westerly along the north line of Lots 128 through 139 to the northwesterly corner of Lot 139;
THENCE along the northerly prolongation of the west line of said Lot 139 to a point that lies 10 feet
north of said north line of Lots 128 through 139;
THENCE easterly, parallel with and 10 feet north of said north line of Lots 128 through 139 to a point
being on the southerly prolongation of a line parallel with and 10 feet west of the west line of Lots 270,
272 and 274;
THENCE northerly, parallel with and 10 feet west of said west line of Lots 270, 272 and 274 to a point on
the westerly prolongation of the north line of Lot 270;
THENCE easterly to the northwest corner of said Lot 270;
THENCE southerly along said west line of Lots 270, 272 and 274 to the southwest corner of Lot 274;
THENCE easterly along the south line of said Lot 274 of the southeast corner of said lot;
THENCE southerly to the POINT OF BEGINNING.
16
EXHIBIT B
Project Site Plan
17
EXHIBIT C
Form of Special Warranty Deed
18
When recorded, return to:
City of Chandler
P.O. Box 4008, Mail Stop 606
Chandler, Arizona 85244-4008
Attn: City Attorney
_____________________________________________________________________________
This document is exempt from Affidavit and Fee requirements pursuant to A.R.S. §11-1134(A)(3).
SPECIAL WARRANTY DEED
For the consideration of the sum of Ten Dollars ($10.00) and other good and valuable
consideration received, CITY OF CHANDLER, an Arizona municipal corporation (“Grantor”),
does hereby grant and convey to ONE CHANDLER OWNER, LLC, a Delaware limited liability
company (“Grantee”), the following described real property (the “Property”) situated in Maricopa
County, Arizona:
SEE EXHIBIT “A” ATTACHED HERETO AND BY THIS
REFERENCE MADE A PART HEREOF (the “Property’).
SUBJECT only to the matters set forth on Exhibit “B” attached hereto and incorporated by
this reference.
And Grantor hereby binds itself and its successors to warrant and defend the title, as against
all acts of Grantor herein and none other, subject only to the matters above set forth.
IN WITNESS WHEREOF, Grantor has executed this deed as of the day and year set forth
below.
DATED: ______________________, 2022.
19
GRANTOR:
CITY OF CHANDLER,
an Arizona municipal corporation
By:
Joshua H. Wright, City Manager
ATTEST:
_______________________________
CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY
STATE OF ARIZONA
)
) ss.
County of Maricopa
)
The foregoing Agreement was acknowledged before me this ____ day of _________, 2022, by
Joshua H. Wright, the City Manager of the City of Chandler, an Arizona municipal corporation,
on behalf of the municipal corporation.
Notary Public
My Commission Expires:
20
EXHIBIT A to Special Warranty Deed
Property Legal Description
LOTS DESCRIPTION
Lots 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 268, 270, 272,274 TOWNSITE OF
CHANDLER, according to the plat of record in the office of the Maricopa County Recorder, in Book 5 of
Maps, Page 34.
EXCEPT the north 3.00 feet of Lot 268
EXCEPT that portion of Lot 139 described as follows:
BEGINNING at the Southwest corner of said Lot 139; thence South 89 degrees 24 minutes 17 seconds
East along the South line thereof, a distance of 3.00 feet; thence North 29 degrees 41 minutes 53 seconds
West 5.79 feet to the West line of said Lot; thence South 1 degree 30 minutes 18 seconds West along said
West Lot line, a distance of 5.00 feet to the Point of Beginning.
ALLEY VACATION RECORDED PER ORDINANCE NO. 3509 RECORDED 2004-0365563
A portion of TOWNSITE OF CHANDLER, according to the plat of record in the office of the Maricopa
County Recorder, in Book 5 of Maps, Page 34, being more particularly described as follows:
BEGINNING at a point marking the northeast corner of Lot 128 as shown in said Book 5 of Maps, Page
34 of Maricopa County records;
THENCE Westerly along the north line of Lots 128 through 139 to the northwesterly corner of Lot 139;
THENCE along the northerly prolongation of the west line of said Lot 139 to a point that lies 10 feet
north of said north line of Lots 128 through 139;
THENCE easterly, parallel with and 10 feet north of said north line of Lots 128 through 139 to a point
being on the southerly prolongation of a line parallel with and 10 feet west of the west line of Lots 270,
272 and 274;
THENCE northerly, parallel with and 10 feet west of said west line of Lots 270, 272 and 274 to a point on
the westerly prolongation of the north line of Lot 270;
THENCE easterly to the northwest corner of said Lot 270;
THENCE southerly along said west line of Lots 270, 272 and 274 to the southwest corner of Lot 274;
THENCE easterly along the south line of said Lot 274 of the southeast corner of said lot;
THENCE southerly to the POINT OF BEGINNING.
21
EXHIBIT B to Special Warranty Deed
Exceptions/Conditions of Title
22
EXHIBIT D
Exceptions/Conditions of Title
23
EXHIBIT E
Certificate of Non-Foreign Status
To inform ONE CHANDLER OWNER, LLC, a Delaware limited liability company
(“Transferee”), that withholding of tax under Section 1445 of the Internal Revenue Code of 1986,
as amended (“Code”) will not be required by City of Chandler, an Arizona municipal corporation
(“Transferor”), who hereby certifies the following:
1.
Transferor is not a foreign corporation, foreign partnership, foreign trust,
foreign estate, or foreign person (as those terms are defined in the Code and the Income
Tax Regulations promulgated thereunder);
2.
Transferor’s U.S. employer or tax (social security) identification number is
_____________________.
3.
Transferor’s address is 175 S. Arizona Avenue, Chandler, Arizona 85225.
4.
Transferor is not a disregarded entity as defined in Section 1.1445-
2(b)(2)(iii) of the Code.
Transferor understands that this Certification may be disclosed to the Internal
Revenue Service by Transferee and that any false statement contained herein could be punished
by fine, imprisonment, or both.
Under penalty of perjury, we declare that we have examined this Certification and
to the best of our knowledge and belief it is true, correct, and complete.
TRANSFEROR
By: Joshua H. Wright, City Manager