INTERGOVERNMENTAL AGREEMENT
BETWEEN
THE CITY OF MESA, ARIZONA,
AND
THE ARIZONA BOARD OF REGENTS
This Intergovernmental Agreement (“Agreement”) is made to be effective as of June ___, 2016 (the “Effective Date”) between the City of Mesa, Arizona, an Arizona municipal corporation (“City”) and the Arizona Board of Regents, a body corporate, for and on behalf of Arizona State University (“ASU”). Each of City and ASU may be referred to in this Agreement as a “Party,” or collectively as the “Parties.”
RECITALS
As background to this Agreement, the Parties recite, state and acknowledge the following, each of which is a material term and provision of this Agreement:
A. City, as part of its downtown redevelopment and revitalization, has been encouraging and promoting the presence of post-secondary education uses and facilities.
B. ASU, in connection with its regional expansion, desires to locate, develop, operate and maintain certain post-secondary education facilities in downtown Mesa as described in this Agreement (“ASU Facilities”).
C. City has located areas within its City Center area (“City Center”) that are appropriate for, and will support, the ASU Facilities.
D. Both City and ASU recognize and acknowledge the benefit to each arising from the location, development, operation and maintenance of the ASU Facilities at the City Center.
E. The Parties are authorized to enter into this Agreement by the provisions of ARS § 11-951, et seq.
AGREEMENTS 1. Identified Property: City and ASU have identified potential building sites for the ASU Facilities within the City Center, depicted on the attached Exhibit A.
2. Property Ownership: City shall own all land and improvements for the ASU Facilities developed and constructed and which are leased to ASU as further provided in this Agreement.
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3. Financing: City agrees to seek from its City Council, a sales tax increase, which is subject to approval by City’s electorate, for financing higher education, police services, and fire and medical services. In the event that City fails to call for such an election by July 7, 2016, or in the event City’s voters do not approve such sales tax increase in the November, 2016, election, this Agreement may be terminated by either Party in accordance with Section 16 below.
4. Debt: The financing for the ASU Facilities, Public Infrastructure and other City Center improvements (collectively, “Financing”), including the amount of any Financing, and any debt service shall be determined by City in its sole discretion.
5. Minimum Required Programs: In the first phase of the development of the ASU Facilities (“Phase I”), ASU shall offer the following minimum required programs (or activities or courses related to such programs): Digital and Sensory Technology, Performing and Media Arts, Early Childhood Education, and Entrepreneurial Support. The timing in which these programs will be established and the minimum number of students and faculty that will participate in and support these (and other) programs is set forth in the attached Exhibit B. In the proposed second phase of the development of the ASU Facilities (“Phase II”), ASU shall provide expansions of the Phase I programs or additional programs; and the minimum number of students and faculty that will participate in and support these programs is set forth in the attached Exhibit B. In the potential third phase of the development of the ASU Facilities (“Phase III”), ASU shall provide expansions of the Phase I or II programs or additional programs; and the minimum number of students and faculty that will participate in and support these programs is set forth in the attached Exhibit B. City will determine, in its discretion, whether to proceed from Phase I to subsequent phases, subject to reasonable time limitations and other conditions to be specified in the Lease. ASU may only replace or remove a successful minimum required program after consultation by ASU’s Provost or President with the City’s Manager not less than six (6) months prior to such replacement or removal. What constitutes a successful program is to be determined by ASU in its reasonable discretion looking at the past and future expected enrollment of students and other relevant factors, if any. The replacement or removal of any program shall not affect ASU’s obligation for providing the minimum number of students and faculty as set forth in the attached Exhibit B. All dates in this Agreement are subject to force majeure; and any delay in City’s delivering the ASU Facilities will automatically grant a comparable extension to ASU with respect to its required performance under this Agreement, taking into account academic calendars.
Students and faculty will use the ASU Facilities during the spring, fall and summer. For purposes of this Section, the number of students shall be calculated as the number of students enrolled in courses or participating in course-related or research activities conducted at the ASU Facilities or Early Childhood Education Facilities during the course of an academic year. The number of faculty shall be calculated as the number of
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faculty who have teaching, research or other responsibilities that are conducted at the ASU Facilities or Early Childhood Education Facilities. The number of staff shall be calculated as the number of staff based primarily at the ASU Facilities or Early Childhood Education Facilities.
6. City Center Master Plan and Design Guidelines: The Parties will prepare a master plan for the City Center (“City Center Master Plan”), and related budget, that plans Phase I and Phase II (and such future phase or phases as the Parties may agree) consistent with the phasing schedule attached as Exhibit B. The Parties agree the size, height, and location of the buildings shown on Exhibit B-1 are subject to change as part of the master-planning for the City Center Master Plan. The City Center Master Plan will be subject to approval by the Parties and incorporate the following elements:
a. Preliminary identification of the specific uses of the ASU Facilities; b. Conceptual plans for civic space, streetscape, landscape, parking, pedestrian connections, etc; c. Elements that address building massing, height and exterior treatments (including materials, color, and architectural style); d. City Center Design Standards and Guidelines; and e. City shall be responsible, with the participation of ASU, for procuring the designer for the City Center Master Plan, and City shall be solely responsible for all such costs.
Phase III and future phases, if any, may be the subject of one or more amendments to the City Center Master Plan as mutually agreed by the Parties.
7. Public Infrastructure and City Center Plaza: The Parties will prepare a Public Infrastructure Plan (“Public Infrastructure Plan”) consistent with the City Center Master Plan. a. “Public Infrastructure” means all utilities, water lines, sewer lines, chilled water lines, streets, sidewalks, streetlights, streetscape, parks and other public open space and landscape within the City Center that are reasonably necessary to support the ASU Facilities.
b. ASU shall identify and submit to City for its review and approval, proposed Public Infrastructure necessary to support the ASU Facilities.
c. A budget for design and completion of the Public Infrastructure shall be established by City prior to any design and construction of Public Infrastructure, which budget shall be subject to ASU’s reasonable approval.
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d. The cost of design and construction of the Public Infrastructure in accordance with the Public Infrastructure Plan and budget shall be the sole responsibility of City.
e. City shall develop, operate, and maintain public open space within the City Center in accordance with the Public Infrastructure Plan; provided, the open space will be developed as a City park open to the general public for its use and enjoyment.
8. Building Development: a. City shall be responsible, with the participation of ASU, for procuring the services of architectural design firms for the design of the ASU Facilities, which design shall be subject to review and approval by the Parties and consistent with ASU’s Design Standards for such facilities and City’s City Center Design Standards (collectively, the “Design Standards”); provided, however, such review and approval (including any ASU Design Standards and City Center Design Standards) shall not increase the budget for the ASU Facilities previously approved by the Parties.
b. An initial budget for the design and construction of the ASU Facilities shall be established and subject to approval by City and ASU prior to the design of the first phase of the ASU Facilities. The Parties shall revise and update the budget throughout the design and construction; but the City shall not be obligated to agree to a budget modification or to expend an amount greater than the approved budget unless the City, in its sole discretion, agrees to in writing. c. City shall be responsible, with the participation of ASU, for procuring and managing the design and construction of the ASU Facilities, and the City shall be solely responsible for such costs. 9. Initial Project Budget: Prior to designing or engineering of the Public Infrastructure and ASU Facilities, or at such other time as may be mutually agreed to between the Parties, the Parties shall agree to an initial project budget (the “Initial Project Budget”) for the design and construction of the Public Infrastructure and ASU Facilities. If the Parties, after good faith attempts, are not able to agree to an Initial Project Budget, either Party upon written notice may terminate this Agreement in accordance with Section 16. After approval of the Initial Project Budget by both Parties, City shall not be obligated to expend an amount greater than the approved Initial Project Budget on the Public Infrastructure and ASU Facilities unless the City, in its sole and absolute discretion, agrees to such a change in writing; and such approval may be conditioned on reimbursement or cost sharing of such additional amounts by ASU, provided that such reimbursement or cost sharing is subject to ASU’s approval in its sole and absolute discretion.
10. Student Housing: The Parties acknowledge that, although student and faculty housing may be desired in the future, no student or faculty housing will be included in the ASU
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Facilities, and the Parties are not obligated under this Agreement to provide student or faculty housing. Notwithstanding the foregoing, the Parties will work in good faith to address issues related to student and faculty housing.
11. Development within the City Center: City may develop and redevelop the City Center, other than the ASU Facilities, in a manner consistent with the City Center Master Plan. ASU may redevelop the ASU Facilities in a manner consistent with the City Center Master Plan.
12. Leasing of the ASU Facilities: ASU, subject to the Arizona Board of Regents’ prior authorization, will enter into a lease (“Lease”) with City for the ASU Facilities. The Lease shall incorporate the material provisions of this Agreement and contain other terms and conditions that are mutually acceptable and commercially reasonable; however the Lease shall include the following: a. The term of the Lease (“Term”) shall be ninety-nine (99) years. b. A schedule for the completion of Phase I (and any other phases that the Parties may agree), any other required dates for performance, and any other requirements before the commencement of any future phases.
c. ASU shall make a payment of rent (“Rent”) in the amount of (i) $100,000.00 per year, together with any applicable taxes, and annually thereafter, subject to a reasonable inflationary or other agreed upon adjustment, and (ii) a reimbursement (“Reimbursement”) of the prorated salary (including benefits) of City’s Facility Manager (or managers). The first payment of Rent shall be made upon the later to occur of (iii) ASU’s possession of Building A and (iv) completion of public space in City Center in accordance with the Public Infrastructure Plan. City shall use the Rent monies to reduce City’s Operation and Maintenance costs for the City Center. The Reimbursement shall be made from the R&R Account.
d. ASU shall pay and be solely responsible for all furniture, fixtures, and equipment in the ASU Facilities for the entire Term. e. ASU shall pay and be solely responsible for all costs for the operation and maintenance of the ASU Facilities for the entire Term. f. ASU shall pay and be solely responsible for all upgrades to tenant improvements that exceed the agreed upon Design Standards or the initial agreed upon budget, such as smart building technology, advanced building sciences, and similar. g. ASU shall develop, and be solely responsible for paying all cost for functional programming, and operating requirements for the ASU Facilities.
h. ASU will work in good faith to provide ASU scholarship opportunities for Mesa residents.
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i. ASU shall pay and be solely responsible for obtaining and maintaining insurance coverage satisfactory to City, as specified in the Lease.
j. Regardless of the sufficiency of the Renewal and Replacement (“R&R”) Account (as set forth in Exhibit C), ASU shall pay and be solely responsible for all maintenance and replacement of the ASU Facilities, including any capital expenditures related thereto, for the entire Term. The Lease will include provisions for extending the term of the Lease in the event that ASU replaces a building or expends significant amounts (as provided in the Lease) for capital improvements, with the extended term of the Lease not being less than the life of the added capital improvements.
k. ASU shall have unfettered access to the leased space within the ASU Facilities (the “Premises”) during the Term. l. If ASU is not utilizing portions of the ASU Facilities, ASU will reasonably determine if such space can be made available to third party non-profit educational institutions that have locations in the City of Mesa at reasonable rental rates. m. As future phases of the ASU Facilities are built out in accordance with this Agreement, those phases will be annexed into the Lease or the Parties may agree to separate leases for such phases, subject in each case to prior authorization of the Arizona Board of Regents. n. The Lease will include, inter alia, the terms and provisions included in Exhibit C and terms and provisions consistent with Exhibit D. 13. Early Childhood Education Program Location: The Early Childhood Education Program may, with the consent of ASU and City, be located (in whole or in part) at a location other than the City Center but within the City of Mesa (an "Early Childhood Education Facility"). If the Parties so agree, the lease, IGA, or other agreement between the City (and possible third parties) will be those terms agreed to by the City and ASU (and third parties, as applicable) for such location; and the Parties do not intend the lease terms for the ASU Facilities in this IGA to apply to such an agreement. If the Parties do not reach a mutual agreement for the necessary facilities for such program, either at the City Center or another facility in Mesa, then either Party may elect not to establish such program.
14. Parking on City-Owned Property: No student or ASU staff parking will be provided at the City Center or be included in the ASU Facilities; provided that the City Center Master Plan will accommodate disabled parking and certain limited parking requested by ASU and agreed by the Parties. ASU and City will collaborate on providing parking to serve both ASU-generated parking demand and replacement parking for spaces eliminated from the City Center area to accommodate development of the ASU Facilities. If City elects to allow ASU to operate and maintain City-developed parking, all of ASU’s revenues (net of ASU’s expenses directly related to operating and maintaining the
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parking facilities) derived from such parking shall be provided to the City, and City shall use such revenue for City Center related costs.
15. Other Revenues and Fund Sources: a. Non-City Center Development by ASU: Revenue from any ASU Facilities and operations not financed by City and not constructed within the City Center or other City-owned real property, shall be the sole property of ASU and any participating private developer.
b. Non-ASU Facilities Development by City: Any development, other than the ASU Facilities, constructed within the City Center or other City-owned real property, shall be on such terms and conditions as City may require in its sole discretion and all revenue from such facilities and operations shall be the sole property of the City and any participating private developer.
c. Community Outreach: ASU agrees to pursue through legislative advocacy and community outreach, the identification of alternative revenue streams, gifting, etc. to assist with development of the City Center. Funds from these activities shall be utilized to further program development, to further development of City Center facilities, or to reduce the level of debt incurred by and/or financial participation required from City. d. Fund Raising and Naming Rights: The Parties shall engage in fund raising for the ASU Facilities to support academic programs and capital costs. The Parties will agree in the Lease, or in separate agreements on a case-by-case basis, on how revenue from fund raising for capital costs (other than for FF&E) and entire building naming rights will be split between the Parties; provided, however, that all such funds shall be used on the City Center and ASU Facilities. ASU shall have the right to grant entire building naming rights, subject to prior consultation with City, provided that ASU shall make the final determination with respect to such naming; and further provided that no such name shall include language which is offensive to accepted standards of decency or which includes any Arizona geographic names or the names of Arizona municipalities (other than Mesa) without the prior written approval of City, not to be unreasonably withheld. Notwithstanding the foregoing, the Parties recognize that donations must be applied in accordance with the expressed intent of donors, provided that neither Party will direct donors to restrict or specify donations in a way to thwart the intent of the Parties that all proceeds of fund raising relating to the ASU Facilities will be used for the City Center and ASU Facilities.
16. Termination of Agreement:
In the event (i) City does not call an election for a sales tax increase on or before July 9, 2016; (ii) City voters do not approve a sales tax increase in the November 2016, election; (iii) the Parties do not agree on each of the City Center Master Plan and budget, the
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Public Infrastructure Plan and budget, the Design Guidelines and overall Project Budget; or (iv) City does not obtain Permanent Financing in an amount sufficient for the completion of Phase I, either Party may elect to terminate this Agreement. If this Agreement is terminated pursuant to this Section, each Party will bear its own expenses incurred in connection with this Agreement. 17. Disputes and Default: a. Event of Default: The failure by either Party to comply with or perform any obligation set forth in this Agreement will constitute an event of default (“Event of Default”) under this Agreement. b. Notice of Default: A nondefaulting Party shall give written notice of default to the Party in default specifying the default. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default.
c. Remedies: Upon the occurrence of any Event of Default not cured within ninety (90) days of notice, in addition to and not in lieu of any right or remedy available at law, in equity, by statute or under this Agreement, the nondefaulting Party may, if it so elects following mediation as provided below, terminate this Agreement by giving written notice of termination to the defaulting Party. d. Mediation: Should a dispute arise between the Parties under this Agreement that they cannot resolve between themselves, or should there be a claim of default by one Party against the other, such unresolved disputes or contested claims of default shall be presented to a third party independent mediator for resolution. The mediator shall be mutually selected by the Parties as soon as practicable after one of the Parties receives notice from the other Party asking for mediation. The mediation shall proceed promptly and the mediator shall make findings and recommendations concerning the dispute or contested claim of default. No recommendations shall be binding on either Party. Mediation under this paragraph shall occur prior to the initiation of any arbitration or legal proceeding. e. Cumulative Rights and Remedies: The rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by such defaulting Party.
18. Cooperation: ASU and City agree that they will reasonably cooperate with each other to accomplish the objectives of this Agreement including the sharing and participating in each other’s requests for proposals where practical and permitted by law.
19. Right of Cancellation: The Parties hereto acknowledge that this Agreement is subject to cancellation by the Parties pursuant to the provisions of ARS §38-511.
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20. Delivery, Procedure of Notices and Communications: All notices, consent or other communication under this Agreement shall be in writing and either delivered in person, deposited in the United States mail, certified mail and postage prepaid, or deposited with any commercial courier or express service and addressed as follows:
ASU: Arizona State University Attn: Senior Vice President and University Planner 300 East University Drive, Ste. 410 PO Box 877705 (USPS mail only) Tempe, AZ 85287-7705
With a required copy to: The Office of General Counsel Arizona State University 300 East University Drive, Ste. 335 PO Box 877405 (USPS mail only) Tempe, AZ 85287-7405
To City: City of Mesa Attn: City Manager 20 East Main Street P.O. Box 1466 (USPS mail only) Mesa, Arizona 85211
With a required copy to: City of Mesa Attn: City Attorney 20 East Main Street P.O. Box 1466 (USPS mail only) Mesa, Arizona 85211
Notice shall be deemed received at the time it is personally served, on the second day after its deposit with any commercial courier or express service or, if mailed, five (5) business days after the notice is deposited in the United States mail as above provided. Any time period stated in a notice shall be computed from the time the notice is deemed received. Either Party may change its mailing address, fax number or the person to receive notice by notifying the other Party as provided in this Section. 21. Authorized Representatives: The following persons (each, a “Representative”) are authorized to act on behalf of their respective Parties in making or obtaining decisions regarding this Agreement. Such Representative may be changed from time-to-time by giving the other Party written notice. a. City: City’s Representative is City Manager (or designee).
b. ASU: ASU’s Representative is Senior Vice President and University Planner. 22. Effective Date: This Agreement shall become effective upon recordation with the Maricopa County Recorder.
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23. Legal Authorization: Attached hereto and incorporated herein is the written determination of each Party’s legal counsel pursuant to ARS §11-952(D) that the Parties are authorized under the laws of Arizona to enter into this Agreement and that the Agreement is in proper form.
24. Entire Agreement: This Agreement embodies the entire understanding of the Parties and supersedes any other agreement or understanding between the Parties relating to the subject matter.
25. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
26. Nondiscrimination: The Parties agree to comply with all applicable state and federal laws, rules, regulations and executive orders governing equal employment opportunity, immigration, nondiscrimination, including the Americans with Disabilities Act, and affirmative action.
27. Supplemental Terms: The Supplemental Terms and Conditions attached as Exhibit D are hereby incorporated into this Agreement.
28. Term: The term of this Agreement expire on the earlier of two (2) years from the date of this Agreement or the date on which the Parties enter into the Lease in respect of Phase I.
[Signature Pages Following]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives on the date first set forth above.
CITY OF MESA, an Arizona municipal corporation
By: ______________________________ Christopher J. Brady City Manager
ARIZONA BOARD OF REGENTS, A BODY CORPORATE, FOR AND ON BEHALF OF ARIZONA STATE UNIVERSITY
By: ___________________________ Richard Stanley Senior Vice President and University Planner
ATTEST:
_________________________________ City Clerk
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The foregoing Intergovernmental Agreement has been reviewed pursuant to Arizona Revised Statutes §11-952, as amended, by the undersigned attorney who has determined that it is in proper form and within the power and authority granted to ASU under the laws of the State of Arizona.
____________________________ ________________ ASU Attorney Date
The foregoing Intergovernmental Agreement has been reviewed pursuant to Arizona Revised Statutes §11-952, as amended, by the undersigned attorney who has determined that it is in proper form and within the power and authority granted to the City of Mesa under the laws of the State of Arizona.
____________________________ ________________ City Attorney Date
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Exhibit A Depiction of City Center
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Exhibit B
City’s and ASU’s Minimum Requirements
Phase I
City Responsibilities:
Development and construction of approximately 180,000 gross square feet (120,000 net square feet) in Buildings A and B, as generally depicted in Exhibit B-1, and associated Public Infrastructure, including an approximately 5-acre public open space. Final location, size, and height of Buildings A and B and the extent of the public open space will be established in the City Center Master Plan.
ASU Responsibilities:
1. Described Academic Programs*; and
2. 1,500 minimum students**
3. 100 minimum faculty and staff**
*within the first year
**within five (5) years of issuance of certificate of occupancy for Phase I; and within ten (10) years of issuance of certificate of occupancy for Phase I the minimum students is 2,000 and the minimum faculty and staff is 125.
Phase II
City Responsibilities:
Development and construction of approximately 60,000 square feet Building C, as generally depicted in Exhibit B-1, and associated Public Infrastructure, subject to time limits and schedules set forth in the Lease. Final location, size, and height of Building C will be established in the City Center Master Plan.
ASU Responsibilities:
Expansion or addition of new Academic Programs that result in the following increases of students and faculty:
2,750 minimum students (total, including Phase I)*
175 minimum faculty and staff (total, including Phase I)*
*within the later of (i) three (3) years after issuance of certificate of occupancy for Phase II or (ii) ten (10) years after issuance of certificate of occupancy for Phase I.
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Potential Phase III
City Responsibilities:
Adaptive reuse of an 18,000 square foot Building D, as generally depicted in Exhibit B-1, and associated Public Infrastructure.
ASU Responsibilities:
Expansion or addition of new Academic Programs that result in the following total numbers of students and faculty:
3,000 students*
200 faculty and staff*
*within the later of (i) three (3) years after issuance of certificate of occupancy for Phase III or (ii) ten (10) years after issuance of certificate of occupancy for Phase I.
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Exhibit B-1
Depiction of ASU Facilities
Mesa City Center
EDUCATIONAL – OPTIONAL
BUILDING A ASU Area: 68,500 gsf | 47,900 nsf Lease Area: 14,000 gsf (F&B) Total Area: 82,500 sf No. of Floors: 5 – New Construction
BUILDING B ASU Area 103,000 gsf | 72,100 nsf Total Area: 103,000 gsf ASU No. of Floors: 5 – New Construction
BUILDING C – OPTIONAL FUTURE ASU Area: 60,000 gsf | 42,000 nsf No. of Floors: 4 – New Construction
BUILDING D – OPTIONAL FUTURE ASU Area: 18,800 gsf | 13,200 nsf No. of Floors: 2 – Existing IT Bldg.
[See next page for map depicting ASU Facilities]
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Exhibit B-1
Depiction of ASU Facilities (continued)
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Exhibit C
Additional Terms and Provisions of Lease 1. Retail Subleases: ASU has unique experience in subleasing space within its facilities to retail and other third-party tenants. The City is willing to delegate to ASU the ability to sublease all retail space within the buildings subject to certain restrictions and requirements of consent. ASU shall have the right to sublease any retail property within the ASU Facilities; provided, however, with respect to the first floor of Building A as depicted in Exhibit B-1, the City shall have the right to designate such space for retail, restaurant, food preparation or other commercial use and the sole and exclusive right to approve any subtenant of such space. Unless otherwise provided in the Lease, all subtenants will be required to pay for and be solely responsible for the tenant improvements within their subleased premises. If ASU determines, in its sole discretion, not to engage in subleasing space within the Premises, ASU shall provide notice to City and return all subleasing rights and responsibilities to City.
2. Rent Assignment: In order to help repay the indebtedness and reduce expenditures for the City Center, ASU shall execute assignments of rent to City on all existing and future retail or commercial space leases within the property set forth on Exhibit A for the Term. Such assignments of rent shall be net of reasonable management, operating and maintenance costs associated with the renting of the retail or commercial space.
3. Renewal and Replacement Reserve Fund Account: a. Establishment: At the commencement of the Term, City and ASU will establish a reserve fund account (herein referred to as the “R&R Account”) for the benefit of City and ASU at a mutually acceptable financial institution. The purpose of the R&R Account shall be to accumulate a reserve fund to ensure that funds will be available in the future for Capital Improvements, defined as those improvements necessary to maintain the condition of the ASU Facilities and that cost in excess of $50,000 with a useful life of at least five (5) years. b. Funding: ASU shall make annual payments to the R&R Account at the rate of $2 dollars per square foot (or as otherwise mutually agreed upon) for all areas included in the Lease. c. Improvements and Funding: A schedule of improvements to be funded by the R&R Account and the adequacy of the R&R Account funding levels for the ASU Facilities shall be agreed upon by both Parties annually within thirty (30) days of each anniversary date of the establishment of the R&R Account. The withdrawal of funds from the R&R Account shall require the written authorization of both City and ASU; provided, however, in a deemed emergency by either City or ASU, either Party shall have the right to unilaterally withdraw funds for the emergency purpose.
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d. Term of R&R Account: The R&R Account shall continue in existence for the Term. Upon expiration or termination of the Term other than for the default by ASU, the balance of the R&R Account shall be paid to ASU.
4. City Center Operations: a. Property Manager: ASU shall be solely responsible for property management, which shall include the operation and maintenance of all interior and exterior maintenance of the ASU Facilities.
b. Facilities Manager: City shall provide a facilities manager (“Manager”) to oversee the condition and use of the City Center facilities, and to monitor compliance with the property management requirements for the ASU Facilities. The Manager may be an employee of City whose responsibilities include (but may not be limited to) the City Center. The Manager shall be funded from available proceeds in the R&R Account; but if the Manager is a City employee who also manages other property, there shall be an equitable determination as to what portion of such employee’s cost shall be funded by the R&R Account.
c. Operations and Maintenance Costs: ASU shall be responsible for all costs associated with the operations and maintenance of the ASU Facilities including all utilities and any contractor services such as janitorial, landscaping, internal building and building access security, etc.
d. Operations and Maintenance Protocol: ASU and City shall jointly develop operations and maintenance protocols for the ASU Facilities. e. Operations and Maintenance Manuals: City shall provide all operations and maintenance manuals and schedules of preventative maintenance for all building equipment and systems for the ASU Facilities that are received by City. 5. Security: ASU and City will jointly develop a security plan for the City Center which will include ASU’s sole responsibility for providing building security for the ASU Facilities.
6. Property Inspections and Notice: a. Inspection: City shall have the right to enter into leased and subleased property owned by City at reasonable times upon twenty-four (24) hours advance notice (except in the case of an emergency and other restrictions based on the uses of the Premises) for the purpose of inspecting the property.
b. Damage Notice: ASU shall notify City as soon as is reasonably possible of any damage (in whole or in part) to City owned property or the interference with the use thereof as a result of fire, flood, building, or utility system failure.
c. Service Records: ASU and the property manager shall maintain and provide to City annually and upon request, all service records reflecting preventative
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maintenance, repair or replacement of building infrastructure, equipment and systems.
7. Accounting and Auditing:
ASU shall keep and maintain complete and detailed records affecting amounts payable to City under this Agreement and each Party agrees to maintain complete and detailed accounting records and vouchers evidencing all costs, receipts, payments and any other matter of accounting associated with its respective performance under this Agreement in accordance with generally accepted accounting principles. Each Party, or its respective audit representative, shall have the right at any reasonable time to inspect, copy and audit the accounting records, vouchers and their source documents which are related to costs, receipts and payments and other matters relating to this agreement.
8. Default by ASU:
City's sole remedies for an uncured breach or default of the Lease by ASU shall be (i) to terminate the Lease; and (ii) at any time that bonds issued in connection with the Financing remain unpaid and outstanding (but in no event later than thirty years from the commencement of occupancy of the Premises by ASU) specific performance of the Lease. For the purposes of the Lease, specific performance of the Lease shall mean the enforcement of all of ASU’s obligations under the Lease, including but not limited the maintenance of programs and levels of students, faculty and staff.
[END OF EXHIBIT]
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EXHIBIT D
SUPPLEMENTAL TERMS AND CONDITIONS
To the extent any provisions of the Agreement to which this Exhibit is attached ("the Agreement") conflict with any of the provisions of this Exhibit, the provisions of this Exhibit will control. References to "this Agreement" include the Agreement and this Exhibit. All provisions of the Agreement that anticipate performance after the termination of the Agreement, and all provisions necessary or appropriate to interpret and enforce such provisions, will survive termination of the Agreement. Capitalized terms used herein without definition shall have the meanings set forth in the Agreement.
1. Nondiscrimination. The Parties will comply with all applicable state and federal laws, rules, regulations, and executive orders governing equal employment opportunity, immigration, and nondiscrimination, including the Americans with Disabilities Act.
2. Conflict of Interest. If within 3 years after the execution of this Agreement, a Party hires as an employee or agent of the other Party who was significantly involved in negotiating, securing, drafting, or creating this Agreement, then the other Party may cancel this Agreement as provided in Arizona Revised Statutes ("ARS") § 38-511. Notice is also given of ARS §§ 41-2517 and 41-753.
3. Arbitration in Superior Court. If required by A.R.S. § 12-1518, the parties agree to make use of arbitration in disputes that are subject to mandatory arbitration pursuant to A.R.S. § 12-133.
4. Records. To the extent required by ARS § 35-214, each Party will retain all records relating to this Agreement. Each Party will make those records available at all reasonable times for inspection and audit by the other Party or the Auditor General of the State of Arizona during the term of this Agreement and for a period of five years after the completion of this Agreement. The records will be provided at a mutually agreeable location.
5. Failure of Legislature to Appropriate. Notice is given of ARS § 35-154.
6. Weapons, Explosive Devices and Fireworks. Within the Premises, ASU prohibits the use, possession, display or storage of any weapon, explosive device or fireworks on all land and buildings owned, leased, or under the control of ASU or its affiliated or related entities, in all ASU residential facilities (whether managed by ASU or another entity), in all ASU vehicles, and at all ASU or ASU affiliate sponsored events and activities, except as provided in A.R.S. § 12-781, or unless written permission is given by the Chief of the ASU Police Department or a designated representative.
7. Public Records. The Parties are subject to, and must comply with, public records laws—ARS §§ 39-121 through 39-127.
8. Indemnification and Liability Limitations. ASU’s liability under any claim for indemnification in this Agreement is limited to claims for property damage, personal injury, or
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death to the extent caused by acts or omissions of ASU. City’s liability under any claim for indemnification in this Agreement is limited to claims for property damage, personal injury, or death to the extent caused by acts or omissions of City.
9. Advertising, Publicity, Names and Marks. A Party will not do any of the following, without, in each case, the other Party’s prior written consent: (i) use any names, service marks, trademarks, trade names, logos, or other identifying names, domain names, or identifying marks of the other Party ("Other Party’s Marks"), for any reason including online, advertising, or promotional purposes; (ii) issue a press release or public statement regarding this Agreement; or (iii) represent or imply any endorsement or support by the other Party of any product or service in any public or private communication. Any permitted use of any of the Other Party’s Marks must comply with the other Party’s requirements, including using the ® indication of a registered trademark where applicable.
10. Tobacco-Free University. Within the Premises, ASU is tobacco-free. For details visit www.asu.edu/tobaccofree.
11. Governing Law and Venue. This Agreement will be governed by the laws of the State of Arizona without regard to any conflicts of laws principles. Any proceeding arising out of or relating to this Agreement will be conducted in Maricopa County, Arizona. Each party consents to such jurisdiction, and waives any objection it may now or hereafter have to venue or to convenience of forum.
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