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Exhibit “A” to Ordinance No. 5061
Development Agreement between City of Chandler and JEMBJACD, LLC
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When recorded, return to:
Chandler City Attorney’s Office
City of Chandler
Post Office Box 4008, Mail Stop 602
Attn: City Attorney
DEVELOPMENT AGREEMENT
200 SOUTH OREGON STREET
& 210 SOUTH OREGON STREET
CITY OF CHANDLER,
an Arizona municipal corporation
and
JEMBJACD, LLC,
an Arizona limited liability company
Approved by City Council on ______________
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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 JEMBJACD, LLC, an Arizona limited
liability company (“Developer”). This Agreement is effective August 21, 2023 (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.
City owns real property totaling approximately 0.355 acres at the southwest corner
of Chicago Street and Oregon Street within the City of Chandler, Maricopa County, Arizona (the
“Property”) as legally described in the attached Exhibit A; together with all rights, privileges,
easements and appurtenances thereto benefitting the Property (whether recorded or not recorded).
B.
The Property is currently zoned multi-family (MF-3). Planned Area Development
(PAD) re-zoning may be required to achieve maximum and desirable development on the Property.
C.
The Property was acquired by 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.
City issued a public request for proposals on September 28, 2021, seeking proposals
from developers who would wish to purchase the Property and develop it in a way that would
encourage continued economic growth and vitality in downtown Chandler. Developer submitted
a proposal to City that was ultimately chosen by City to receive the right to enter contract
negotiations for the development.
E.
Developer has proposed to build a two-story mixed-use development that
complements the area surrounding the Property (“Project”) that the Parties believe 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 development 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.
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.
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§ 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.
§ 36-1471 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:
1.1
“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.
1.2
“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.
1.3
“Business Day" means any day of the week when the City Planning and
Development Department is open to the public for the conduct of the department's business.
1.4
“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.
1.5
“City” means the City of Chandler, an Arizona municipal corporation (and any
successor public body or officer hereafter designated by or pursuant to law).
1.6
“City Code” or Code” means the Chandler City Code and regulations of the City.
1.7
“City Delay” means as defined in Section E.
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1.8
“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.
1.9
“Completion of Construction” or “Construction Completion Date” shall mean
the issuance of a Certificate of Completion for the Minimum Improvements.
1.10
“Default” means as defined in Section 5.1.
1.11
“Developer” means JEMBJACD, LLC, an Arizona limited liability company (and
any successor or assignee).
1.12
“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; 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.
1.13
“Improvements” means all privately owned buildings and other structures to be
located within the Project including the Minimum Improvements.
1.14
“Purchase Price” means as defined in Section 2.
1.15
“Minimum Improvements” means as described in Section 3.1 and as depicted on
Exhibit B.
1.16
“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.
1.17
“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.
1.18
“Project” means the Minimum Improvements plus any additional private land uses
constructed on the Property by Developer.
1.19
“Project Documents” means as defined in Recital 1.1J. The Project Documents
include all exhibits to such documents.
1.20
“Public Infrastructure Improvements” means as described in Section 4.
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1.21
“Purchase Agreement” means the purchase agreement in the form substantially
similar to the form attached as Exhibit C.
1.22
“The Property” means the real property specifically identified on Exhibit A.
SECTION 2.
ACQUISITION AND DISPOSITION OF THE PROPERTY.
2.1
Purchase. Developer may 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 hundred thousand dollars
($200,000.00) (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 (subject to Force Majeure Events), 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.
Developer will not be entitled to compensation for any improvements placed on the Property if
City elects to re-purchase the Property due to Developer’s failure to complete the Minimum
Improvements within the timeframes specified in this Agreement.
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 information 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, including without limitation a copy of all operating agreements,
partnership agreements, and articles of incorporation, and any other information reasonably
requested by City for this purpose, including any amendments to such documents. During the Term
of this Agreement, 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.
A.
Minimum Improvements. The development proposed by Developer is depicted in
Exhibit B and is composed of a single two-story building, consisting of a minimum of
15,000 square feet of mixed-use building space proposed for restaurant and retail uses
(“Minimum Improvements”). The Minimum Improvements will feature a central bar area
that is surrounded by multiple retail and restaurant tenants as depicted in the renderings
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included in Exhibit B. Developer must construct the Minimum Improvements in
substantial conformance to the Proposed Development Plan submitted to City in response
to City’s request for proposal.
1. The Minimum Improvements must include a two-story building with outdoor
upper-deck patio seating, trash and back-of-house services at the rear of the property,
and a drive aisle for pick-up, drop-off, and other temporary activities, all in substantial
conformance with the depiction contained in Exhibit B or as otherwise approved by
the City.
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 Plans were
material considerations for the 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.
City Development Standards. Developer shall construct the Minimum
Improvements according to City’s construction and development standards.
D.
Developer’s Construction Deadlines. Developer shall abide by the following
construction deadlines. If Developer has not performed the action by the dates set forth
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 obtains final
development approval including
Planned Area Development
(PAD) and Preliminary
Development Plan (PDP)
Twelve (12) months from the
Effective Date of this Agreement
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E.
Restaurant Diversity. Developer intends to lease space to restaurants with unique
offerings (commonly referred to as a “food hall”) and with a level of quality
commensurate with the other restaurants operating in the Downtown Chandler area
Developer intends to lease space to a minimum of six (6) to maximum of twelve (12)
restaurants. Retail space may be included if it complements the food hall concept. During
the Term, Developer will not lease space to restaurants that would traditionally be found
in a mall food court (the “Limited Restaurants”); provided, however, Developer may lease
space within the development to Limited Restaurants so long as the Limited Restaurants
make up no more than 34% of the tenants leasing space within the development.
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
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 E(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, from time to time upon reasonable written request 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
Developer’s submittal of 90%
completed civil plans for the
grading permit
Twelve (12) months from the
Effective Date of this Agreement
Developer obtains approval of
site and building plans (“Civil
Plans”)
Six (6) months from submittal of
complete Civil Plans
Developer’s Commencement of
Construction (“Construction
Commencement”)
Six (6) 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”)
Twelve (12) months from
Construction Commencement
3.2
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be consistent with the provisions of this Section and otherwise reasonably acceptable to
the City.
C.
Expedited Processing and Phasing of City Approvals.
1. Zoning Entitlements. Upon submittal of administratively complete rezoning
application, as defined in Chandler regulations, and Developer’s timely responses to
the City’s reviews of the submittal(s) for amendment of the Planned Area
Development (P.A.D.) zoning and Central City District (CCD) zoning on the
Property, the City agrees to expedite the processing of Developer’s applications for
rezoning of the Property in accordance with Applicable Laws in order to assist
Developer in achieving its development schedule.
2. Expedited Reviews for Regulatory Permits. Upon submittal of civil plans that are
90% complete and Developer’s timely responses to the City’s reviews of the
submittal(s) for various regulatory permits, City agrees to expedite the processing of
Developer’s applications for regulatory permits in accordance with Applicable Laws
in order to assist Developer in achieving
its development schedule. Expediting
of reviews and processing for regulatory permits for purposes of this Agreement shall
mean ten (10) business days for each review submittal and any City comments shall
be coordinated between the various departments (i.e. planning/zoning, traffic, civil
etc.).
D.
Timing for City Approvals. In recognition of Developer’s accelerated timeline for
construction in order to have the Project available to comply with leasing commitments
to its tenants, City commits to the following schedule for granting or issuing its approvals
or permits (as applicable):
1. City will approve 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(D).
2. City will approve Developer’s site civil drawings and issue all permits for site work
within thirty (30) days of Developer’s final and complete submission to City.
3. City will approve Developer’s building civil drawings and issue all permits for
construction within sixty (60) days of Developer’s final and complete submission to
the City.
4. The failure of City to reasonably comply with any of the matters listed in this
Section E is a default by City under this Agreement and shall be a “City Delay.” In
the event of a City Delay, the City Delay will be treated 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.
E.
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.
F.
Payment of Review Fees. City further agrees that Developer shall be granted the
above-referenced expedited reviews without additional cost for the expediting of the
reviews. Notwithstanding the foregoing sentence, Developer shall pay the usual fees
associated with reviews that are not expedited.
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 pursuant to City standards
applied to all development projects within the City of Chandler. Notwithstanding such, should the
amount of the total required offsite public infrastructure improvements exceed the total cost of
Three Hundred Thousand ($300,000), Developer shall have the right to either make such offsite
public infrastructure improvements and proceed with the development in accordance with this
Agreement, or, at the sole discretion of the Developer, terminate this Agreement and the City will
repurchase the Property in accordance with Section 2.3.
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 fifteen (15) 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 sixty (60) 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 sixty (60) days is not practicable and the defaulting Party commences a
cure within that sixty-day period and diligently and expeditiously pursues such cure to completion
within one hundred twenty (120) 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 and twenty (120) 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.
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C.
Remedy of City if Minimum Improvements are not Completed. If Developer does
not complete the Minimum Improvements 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. 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. Developer will not be
entitled to compensation for any improvements placed on the Property if City elects to re-
purchase the Property due to Developer’s failure to complete the Minimum Improvements
within the timeframes specified in this Agreement.
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 formed 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 or as otherwise set forth in this Agreement.
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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:
JEMBJACD, LLC
c/o Jeremy McClymonds
2510 East Buena Vista Place
Chandler, AZ 85249
With a copy to:
Michaile J. Berg, Esq.
Galbut Beabeau, P.C.
6720 N. Scottsdale Road, Suite 305
Scottsdale, Arizona 85253
To the City:
City of Chandler
Cultural Development Department (MS 416)
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
Waiver of Right to Trial by Jury. The Parties expressly covenant and agree that in
the event of a dispute arising from this Agreement, each Party waives any right to a trial by jury.
In the event of litigation, the Parties agree to submit to a trial before the court.
8.5
Attorneys’ Fees. In the event of commencement of a legal action in an appropriate
forum by a Party to enforce any covenant or any of such Party’s rights or remedies under 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.
8.6
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.
8.7
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.
8.8
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.
8.9
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.
8.10
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.
8.11
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.
8.12
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.
8.13
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.
8.14
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.
8.15
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.
8.16
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.
[Signatures on following page.]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
Effective Date.
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 _________, 2023, 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
Parcel No. 1:
Lot 914, Block I, TOWNSITE OF CHANDLER, according to Book 9 of Maps, page 2, records
of Maricopa County, Arizona
Parcel No. 2:
Lot 916, Block I, TOWNSITE OF CHANDLER, according to Book 9 of Maps, page 2, records
of Maricopa County, Arizona
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EXHIBIT B
MINIMUM IMPROVEMENTS
-19-
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 21st day of August, 2023, (“Effective Date”) by and
between the CITY OF CHANDLER, an Arizona municipal corporation (“Seller”) and
JEMBJACD, LLC, an Arizona limited liability company (“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,” and legally described
on Exhibit A.
A.
Purchase Process. Buyer shall provide Notice to Seller of Buyer’s delivery of the
executed Purchase Agreement to 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.
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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 five percent (5%)
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 hundred thousand
dollars ($200,000.00) (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 “B” (the “Deed”), conveying the Property to Buyer, is
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 thirty (30) days after the end of the Inspection Period 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 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
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
3
Property that Buyer deems appropriate. Buyer shall have the right to enter the
Property and conduct its tests or studies.
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.
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,
4
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 B)
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 C 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.
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
5
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 and accompanied by an Affidavit of Property Value as
required by Arizona law. The deed shall comply with A.R.S. § 33-404 to the extent
required by applicable law. The Parties may each authorize Escrow Holder to sign
the Affidavit of Property Value on their respective behalf;
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 D;
c. A joint Settlement Statement prepared by Escrow Holder for execution by Seller;
6
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. Execute, acknowledge and deliver the Affidavit of Property Value;
c. A joint Settlement Statement prepared by Escrow Holder for execution by Buyer;
d. 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
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.
7
e. Except with respect to the Project Documents and those matters noted in Exhibit C
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.
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)
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. above and Seller shall pay to
Buyer damages for due diligence costs and reasonable legal fees in an amount not to exceed
$50,000, 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
8
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 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
If to Buyer:
JEMBJACD, LLC
2510 East Buena Vista Place
Chandler, AZ 85249
Attention: Jeremy McClymonds
Email: Jeremy@RealtyAdvisorAZ.com
9
With a copy to:
Galbut Beabeau, P.C.
6720 N. Scottsdale Road, Suite 305
Scottsdale, Arizona 85253
Attention: Michaile J. Berg, Esq.
Email: mberg@gb.law
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.
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
10
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.
L.
Conflict of Interest. The Parties acknowledge that this Agreement is subject to
cancellation pursuant to the provisions of Arizona Revised Statutes § 38-511.
11
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 _________, 2023, 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
ESCROW HOLDER’S ACCEPTANCE
The undersigned agrees to act as Escrow Holder in connection with the transaction
contemplated by this Agreement:
Name of Company:
_________________________________
Name of Escrow Officer:
_________________________________
Title:
_________________________________
Signature:
_________________________________
Date:
_________________________________
Address for Notices:
_________________________________________
_________________________________________
_________________________________________
_________________________________________
14
EXHIBIT A
LEGAL DESCRIPTION
Parcel No. 1:
Lot 914, Block I, TOWNSITE OF CHANDLER, according to Book 9 of Maps, page 2, records
of Maricopa County, Arizona
Parcel No. 2:
Lot 916, Block I, TOWNSITE OF CHANDLER, according to Book 9 of Maps, page 2, records
of Maricopa County, Arizona
15
EXHIBIT B
Form of Special Warranty Deed
16
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 JEMBJACD, LLC, an Arizona 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: ______________________, 2023.
17
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 _________, 2023, 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:
18
EXHIBIT A to Special Warranty Deed
Parcel No. 1:
Lot 914, Block I, TOWNSITE OF CHANDLER, according to Book 9 of Maps, page 2, records
of Maricopa County, Arizona
Parcel No. 2:
Lot 916, Block I, TOWNSITE OF CHANDLER, according to Book 9 of Maps, page 2, records
of Maricopa County, Arizona
19
EXHIBIT B to Special Warranty Deed
Exceptions/Conditions of Title
20
EXHIBIT C
Exceptions/Conditions of Title
21
EXHIBIT D
Certificate of Non-Foreign Status
To inform JEMBJACD, LLC, an Arizona 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