Attachment C - Temple Conservation Easement.pdf

Attachment C

OFFICIAL RECORDS OF
WHEN RECORDED RETURN TO: MARICOPA COUNTY RECORDER

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City of Phoenix . 20100033491 01/14/2010 02:55 #124073DCEQ
City Manager's Office ELECTRONIC RECORDING (8 pages)
Historic Preservation Office
200 W. Washington Street, 17th Floor

Phoenix, Arizona 85003

EXEMPT UNDER A.R.S. 11-1134 (A) (2)

DEED OF CONSERVATION EASEMENT 4 9 4 (7 3. QE

THIS DEED OF CONSERVATION EASEMENT (the "Easement") is made as of the
Gt. day of fue | ,20.08, by and between the Arizona Jewish Historical
Society, an Arizona corporation, (the "Property Owner"), whose principal address is 4710 North 46"
Street, Suite 201, Phoenix, Arizona 85016, and the City of Phoenix, a municipal corporation organized
and existing under the laws of the State of Arizona, (the "City”).

RECITALS

A. The City is authorized under Arizona's Uniform Conservation Act, Arizona Revised
Statutes, Sections 33-271 through 276, inclusive (collectively, as and if amended, the "Act”) to accept
easements to protect property significant in Arizona history and culture for the education of the
general public.

B. The City is a municipal corporation whose responsibilities include the protection of the
public interest in preserving architecturally significant structures within the City of Phoenix.

Cc. The Property Owner is the owner in fee simple of that certain property located at 122
East Culver Street, Phoenix, Maricopa County, Arizona, which is more particularly described in Exhibit
"A" attached hereto and made a part hereof (the "Property”), including all improvements and buildings
thereon (the "Structures"). (Any reference to the "Property" hereinafter shall be deemed to include
each of the "Structures".)

D. The Property is listed on the Phoenix Historic Property Register, and the Property
Owner and the City recognize the historical or architectural value and significance of the Property and
have the common purpose of conserving and preserving the aforesaid value and significance of the
Property.

E. On duwe 9 , 200 8 , the Property Owner executed a Demonstration
Project Program Agreement (the "Program Agreement"), wherein the Property Owner has agreed to
sell to the City an Easement on the roof and exterior surfaces of each of the Structures (the
“Facades") and any associated fences, walls, or fixtures (the “Fixtures”) and all vegetation, patios,
driveways, and ground surfaces (the “Landscaping”) (“Facades” ,“Fixtures”, and “Landscaping”
collectively the “Site”), and use the proceeds of the sale together, if applicable, with a matching
amount of Property Owner's funds or own labor to rehabilitate the Site.

F, In order to effectuate the obligations of the Property Owner under the Program
Agreement, the Property Owner desires to sell, grant, convey, transfer and assign to the City, and the
City, pursuant to the Act, desires to accept an Easement on the Site.

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AGREEMENT

NOW, THEREFORE, in cbnsideration of the City's agreement to pay the Property Owner up to
$200,000.00 (the “Purchase Price”), subject to the terms and conditions of the Program Agreement,
the Property Owner and the City hereby agree as follows:

1. Grant of Easement: The Property Owner does hereby irrevocably grant, convey,
transfer and assign unto the City an Easement, as provided for under the Act, in gross, for a term of
thirty (30) years from the date hereof through and including, June 7, 2038 , (the “Term’), in
and to the Site, and which covenants contained herein contribute to the public purpose of conserving
and preserving the Site and accomplishing the other objectives set forth herein.

2. Property Owner's Covenants: In furtherance of the Easement herein granted, the
Property Owner hereby covenants and agrees with the City as follows:

2.1 Documentation of the Exterior Condition of the Facades and Site. For the
purpose of this Easement, within thirty (30) days following the Property Owner’s request for
reimbursement from the Historic Preservation Bond Fund, Property Owner or the Property Owner's
designee shall depict the Site in an original set of photographs (the “Photographs”) which shall be filed
in the office of the City of Phoenix Historic Preservation Officer, or designated successor. The
exterior condition and appearance of the Site as depicted in the Photographs (the “Present Site”) is
deemed to describe their external nature as of the date thereof.

2.2 Maintenance of the Site. The Property Owner will, at all times, maintain each
of the Structures and their respective Facades, as well as the remainder of the Site, in a good and
sound state of repair in accordance with the City's existing guidelines for the historic district in which
the Property is located (the "Standards") so as to prevent the deterioration of the Site or any portion
thereof; to prevent visual obstruction of the Site from public viewpoints such as adjacent streets; and
prevent the intrusion of new improvements, walls, fences, statues, landscaping or fixtures which
substantially modify the public view of the Site and its associated streetscape and open space, and
are deemed to be not in accordance with the Standards. The Property Owner will request and obtain
advance approval from the City Historic Preservation Office prior to implementing any physical
changes to the Structures, Facades or Fixtures, including but not limited to: changes to the roof,
foundation work, exterior surfaces, windows, or doors; any removal of mature vegetation; any
demolition work or new construction; any construction or alteration of patios, decks or porches; any
construction or alteration of features such as fencing, walls, statuary, paving and grading; any new
stucco or re-stuccoing work; or, any masonry work, such as tuckpointing, paint removal, pressure
water cleaning, chemical cleaning or application of sealants. In no event is sandblasting or other
mechanical or abrasive cleaning method permitted. This provision does not apply to routine
maintenance, installation of sprinkler systems, or landscaping except for hardscape improvements
and removal of mature vegetation. Subject to the casualty provisions of Paragraph 4 below, this
obligation to maintain shall require replacement, repair and reconstruction according to the Standards
within a reasonable time whenever necessary to have the Site at all times appear to be the same as
the Present Site.

2.3 Maintenance of the Structural Elements. The Property Owner will maintain and
repair the Structures and Fixtures as is required to ensure the structural soundness and the safety of
the Structures and Fixtures.

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24 Inspection. In order to periodically observe the Site, representatives of the City
shall have the right to enter the Property to inspect the Site. This inspection will be made at a time
mutually agreed upon by the Property Owner and the City.

2.5 Conveyance and Assignment. The City may convey, transfer and assign this
Easement to a similar local, state or national organization whose purpose, inter alia, is to promote
historic preservation, and which is a "qualified organization" under Section 170(h)(3) of the Internal
Revenue Code of 1986, as amended, provided that any conveyance or assignment requires that the
conservation purposes for which this Easement was granted will continue to be carried out.

2.6 Insurance. The Property Owner, at its sole cost and expense, shall at all times
(a) keep the Structures insured at their replacement cost value on an “all risk" basis to ensure
complete restoration of the Site in the event of loss or physical damage. Said property coverage
policy shall contain provisions which ensure that the face amount of the policy is periodically adjusted
for inflation, and the Property Owner shall provide a Certificate of Insurance to the City evidencing
such insurance, including an endorsement naming the City as a loss payee; and (b) carry and
maintain liability insurance in an amount satisfactory to the City to protect against injury to visitors or
other persons on the Property, and to provide a Certificate of Insurance to the City evidencing such
insurance, and naming the City as an additional insured on the policy.

2.7 Visual Access. The Property Owner agrees not to substantially obstruct the
opportunity of the general public to view the exterior architectural, historical and archaeological
features of the Site from adjacent publicly accessible areas such as public streets and sidewalks. If
the Site is not visible from a public area, then the Property Owner agrees that the general public shall
be given the opportunity on a periodic basis to view the characteristics and features of the Site which
are preserved by this Easement to the extent consistent with the nature and conditions of the

Property.

3. Warranties and Representations of the Property Owner. The Property Owner hereby
represents and warrants to the City as follows:

3.1 Information Furnished, True and Correct. All information given to the City by
the Property Owner in order to induce the City to accept this Easement, including all information
contained in this Easement, is true, correct and complete.

3.2 Legal, Valid and Binding. This Easement is in all respects, legal, valid and
binding upon the Property Owner and enforceable in accordance with its terms, and grants to the City
a direct, valid and enforceable conservation easement upon the Site.

3.3 No Impairment of Easement. The Property Owner, for itself, its heirs, personal
representatives, and assigns, has not reserved, and to Property Owner's knowledge, no other person
or entity has reserved any rights, the exercise of which may impair the Easement granted herein.

4. Application of Insurance Proceeds. Subject to the insurance proceeds requirements of
any recorded Deed of Trust or Mortgage applicable to the Property, in the event of damage or
destruction of any of the Structures or Fixtures resulting from casualty, the Property Owner agrees to
apply all available insurance proceeds and donations to the repair and reconstruction of each of the
damaged Structures or Fixtures. In the event the City determines, in its reasonable discretion, after
reviewing all bona fide cost estimates in light of all available insurance proceeds and other monies
available for such repair and reconstruction, that the damage to the Structures or Fixtures is of such
magnitude and extent that repair and reconstruction of the damage would not be possible or practical,

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then the Property Owner may elect not to repair or reconstruct the damaged Structures or Fixtures.
Notwithstanding the foregoing, in the event the City notifies the Property Owner in writing that the City
has determined that repair and reconstruction of the damaged Structures or Fixtures is impossible or
impractical and that the damaged Structures present an imminent hazard to public safety, the
Property Owner will, at Property Owner's sole cost and expense, raze the damaged Structures or
Fixtures and remove all debris, slabs, and any other portions and parts of the damaged Structures or
Fixtures within the time period required by the City to protect the health, safety and welfare of the
public, unless the Property Owner has commenced and is diligently pursuing repair or reconstruction
of the damaged Structures or Fixtures. Upon razing of the damaged portion of the Structures or
Fixtures, the City shall release any interest it has in the insurance proceeds for the damaged
Structures or Fixtures. Nothing in this paragraph is intended to supersede or impair the rights to
insurance proceeds of a lienholder pursuant to a recorded deed of trust or mortgage applicable to the
Property.

5. Indemnification. The Property Owner covenants that Property Owner shall pay,
protect, indemnify, hold harmless and defend the City at the Property Owner's sole cost and expense
from any and all liabilities, claims, costs, attorneys' fees, judgments or expenses asserted against the
City, its mayor, city council members, employees, agents or independent contractors, resulting from
actions or claims of any nature arising out of the conveyance, possession, administration or exercise
of rights under this Easement, except in such matters arising solely from the gross negligence of the
City, its mayor, city council members, employees and agents.

5.1 Survival of Indemnification. The obligations of the Property Owner
under this indemnification shall continue beyond the term of this Easement for a period of two (2)
years.

§.2 Explanation of Indemnification. For purposes of explanation of Paragraph 5
only, and without in any manner limiting the extent of the foregoing indemnification, the Property
Owner and the City agree that the purpose of Paragraph 5 is to require the Property Owner to bear
the expense of any claim made by any third party against the City, which arises because the City has
an interest in the Property as a result of this Easement. The Property Owner will have no obligation to
the City for any claims which may be asserted against the City as a direct result of the City's
intentional misconduct or gross negligence.

6. Default/Remedy. In the event the Property Owner (a) fails to perform any obligation of
the Property Owner set forth herein or in the Program Agreement, or otherwise comply with any
obligation or restriction set forth herein, or (b) any representation or warranty of the Property Owner
set forth herein, is determined by the City to have been untrue when made, in addition to any
remedies now or hereafter provided by law and in equity, the City or its designee, following prior
written notice to the Property Owner, may (aa) institute suit(s) to enjoin such violation by ex parte,
temporary, preliminary or permanent injunction, including prohibitory and or mandatory injunctive
relief, and to require the restoration of the Property to the condition and appearance required under
this Easement, or (bb) enter upon the Property, correct any such violation, and hold the Property
Owner responsible for the cost thereof, and such cost until repaid shall constitute a lien on the
Property, or (cc) revoke the City's acceptance of this Easement by written notice to the Property
Owner and the Property Owner shall reimburse the City all or part of the Purchase Price.
Determination of the amount due to the City shall be made as follows: during the first half of the Term
of the Easement, the Property Owner shail reimburse the City the full amount of the Purchase Price.
Thereafter, on each anniversary of the execution of the Easement, the amount the Property Owner
shall pay in the event of a default shall be reduced by a pro-rata portion of the original amount of the
Purchase Price for the remaining years of the Term. In the event the Property Owner violates any of

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Property Owner’s obligations under this Easement, the Property Owner shall reimburse the City for
any and all costs and expenses incurred in connection therewith, including all court costs and
attorneys’ fees.

7. Waiver of Remedy. The exercise by the City or its designee of any remedy hereunder
shall not have the effect of waiving or limiting any other remedy and the failure to exercise any remedy
shall not have the effect of waiving or limiting the use of any other remedy or the use of such remedy
at any other time.

8. Waiver of Claims for Diminution in Value of Property Under Proposition 207. By

executing this Easement on the Property, Property Owner, its heirs, successors or assigns, hereby
voluntarily waives Property Owner's right to make any claim for any diminution in the value of the
Property pursuant to A.R.S. 12-1134 that may directly or indirectly occur as a result of this Easement.
The Property Owner understands that this Waiver shall run with the Property and be binding upon
subsequent landowners and successors in interest. Property Owner acknowledges that the
Easement and this Waiver are granted voluntarily and without duress and based on consideration as
set forth herein and in the Program Agreement.

9. Effect and Interpretation. The following provisions shall govern the effectiveness and
duration of this Easement:

9.1 Interpretation. Any rule of strict construction designed to limit the breadth of
restriction on alienation or use of property shall not apply in the construction or interpretation of this
Easement, and this Easement shail be interpreted broadly to affect the transfer of rights and
restrictions on use herein contained.

9.2 Invalidity of the Act. This Easement is made pursuant to the Act as the same
now exists or may hereafter be amended, but the invalidity of such Act or any part thereof, or the
passage of any subsequent amendment thereto, shall not affect the validity and enforceability of this
Easement according to its terms, it being the intent of the parties hereto to agree and to bind
themselves, their successors, heirs and assigns, as applicable, during the Term hereof, whether this
Easement be enforceable by reason of any statute, common law or private agreement either in
existence now or at any time subsequent hereto.

9.3. Violation of Law. Nothing contained herein shail be interpreted to authorize or
permit the Property Owner to violate any ordinance or regulation relating to building materials,
construction methods or use, and the Property Owner agrees to comply with all applicable laws,
including, without limitation, all building codes, zoning laws and ail other laws related to the
maintenance and demolition of historic property. In the event of any conflict between any such laws
and the terms hereof, the Property Owner promptly shall notify the City of such conflict and shall
cooperate with City and the appropriate authorities to accommodate the purposes of both this
Easement and such ordinance or regulation.

9.4 Amendments and Modifications. This Easement may be amended in writing
signed by the Property Owner and the City. Such amendment shall become effective upon recording
the same among the land records of Maricopa County, Arizona, in the office of the County Recorder.

9.5 Recitals. The above Recitals are incorporated herein by this reference.

9.6 Time of the Essence. Time is of the essence in the performance of each and
every term and condition of this Easement by the Property Owner.

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97 Governing Law. This Easement shall be governed by, construed and enforced
in accordance with the laws of the State of Arizona. Any legal proceeding arising out of this
Easement shall be brought in Maricopa County.

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IN WITNESS WHEREOF, the Property Owner and the City executed this Easement on the
date first above written, which Easement shall be effective immediately upon such execution

“PROPERTY OWNER’
Arizona Jewish Historical Society
By Lega Men snch
lis A4en ee haw

STATE OF ARIZONA _)

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County of Maricopa )

foregoing instrument was acknowledged before me this__*_day of Wu AR
Uise Loverat, its re)

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wits ccc, Rue Oweclor_

Via, Ree ae

Notary Public
My Commission Expires:

ly boro

2008, orc

Mary Reyna

ey NOTARY PUBLIC -- ARIZONA

MARICOPA COUNTY

My Commission Expires
September 1, 2010

STATE OF ARIZONA

) ss.
County of Maricopa )

The foregoing instrument was ‘acknowledged before me this | O day of une
2008, by Barbara Stocklin, Historic-Presemvati

My Commission Expires:

Samal

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Mary Reyna 2 om
NOTARY PUBLIC -- ARIZONA a
MARICOPA COUNTY = «A
My Commiesiin Expires 5 GO
September 1, 2010 2 6
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#7 1b

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EXHIBIT "A"
Legal Description

Temple Beth Israel

122 East Culver Street
Phoenix, AZ 85004

Lots 2 and 3, a subdivision of Lot 2, Block 16, CENTRAL PLACE, according to the plat of record
in the office of the Maricopa County Recorder in Book 10 of Maps, page 12.

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