ARIZONA COMMERCIAL REAL PROPERTY FORMS MANUAL Adrian M. Gough, Managing Editor Authors David V. Burkett Adrian M. Gough Kelley L. Cathie David J. Itzkowitz Mark D. Dioguardi David L. Johnson Donald E. Dyekman Monica Michelizzi Corey R. Foley Marc Maher Daniel E. Garrison Erin E. Szajna Susan R. Gilman Frank S. Tomkins Editors David V. Burkett Marc Maher Kelley L. Cathie Regina L. Nassen John Escher Erin Szajna Susan Gilman Frank S. Tomkins Adrian M. Gough Lori Wilson David L. Johnson Real Property Section & Continuing Legal Education Copyright © 2017 State Bar of Arizona All Rights Reserved Printed in the United States of America Publications prepared by Continuing Legal Education and Real Property Section of the State Bar of Arizona are intended to provide current and accurate information about subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distrib- uted with the understanding that the publisher and the authors intend to assist with, and not take the place of, any legal or other professional service. Attorneys using Continuing Legal Education publications should also research original and fully current sources of authority. All opinions expressed herein are strictly those of the author and do not necessarily represent the views of the publisher. INTRODUCTION Jones Osborn Osborn Maledon, P.A. It is probably fair to say that most attorneys whose practice involves real estate, in whole or in part, find themselves in need of a good real estate form from time to time. Unless the lawyer, or someone in his or her firm, has worked on a similar transaction or has taken the time to assemble their own form file, it can be difficult to locate a form which is current and is consistent with Arizona law and local custom and practice. Most of us have experienced the frustration from time to time of combing through a nationally-produced form book of antiquated or inapplicable forms without success. This manual has been created by nearly a score of distinguished Arizona practitioners with extensive experience in one or more areas of real estate practice who have prepared and assembled a set of forms based on their particular area of expertise. The goal has been to create a set of forms that are practice-oriented, user friendly, and consistent with those typically used in the state today. The forms are designed primarily for commercial transactions; residential forms are readily available from residential brokerage associations or brokerage houses. Obviously, a form is only a starting point. Few forms will fit the transaction at hand without modification. The business of real estate is much too varied for that. However, a good form can save the practitioner time, assist in producing a professional product, and call attention to issues that might otherwise be overlooked. Although the forms in this manual are the product of many hours of hard work by experienced attorneys, they should not be considered either “standard” or “Bar approved” forms. Neither are they necessarily “fair” or “customary.” The contributing authors may have their own opinions and biases on the provisions that are appropriate for a given transactions, perhaps based on the nature of the client he or she ordinarily represents; for example, a landlord as opposed to a tenant, or a lender as opposed to a borrower. Each practitioner using the forms is advised to modify them as necessary not only to fit the particulars of the transaction, but to protect the interests of his or her client. In addition, each user is responsible for knowledge of the law applicable to the subject matter of the transaction and for compliance with all legal requirements. It should go without saying that neither the State Bar nor the contributing attorneys can be responsible for legal claims arising out of the use of the forms. The attorney, as always, is ultimately responsible for the work product that he or she delivers to the client. 3 AUTHORS & EDITORS DAVID BURKETT (author and editor) is Operations Counsel at Clear Channel Outdoor. David was formerly an associate at Mariscal, Weeks, McIntyre & Frieldander in Phoenix, and graduated from the Sandra Day O’Connor College of Law at Arizona State University in 2005 as that year’s Outstanding Graduate. David has also served on the Board of Directors of Dancers & Health Together, a Phoenix non-profit. KELLEY CATHIE (author and editor) is with the law firm of Braun Siler Kruzel, PC where she focuses her practice on estate and business planning; estate and probate administration; and corporate and real estate transactions. Kelley has prepared and administered a wide variety of estate plans and prides herself on providing a personalized approach to meet the diverse circumstances of her clients. Kelley’s corporate and real estate experience complement her estate planning practice and allow her to provide full service legal representation to her clients’ business and estate planning needs. Kelley is very active both professionally and personally in her community. She currently serves on the Health and Human Resources Advisory Board for Chicanos Por La Causa, Advisory Board for Parenting Arizona, the Annual Tax & Legal Seminar Committee, the State Bar of Arizona Real Estate Forms Editorial Committee, and the Board of Directors for the Desert Peak Homeowners Association. She has also dedicated her time to the Wills for Heroes Program through the State Bar of Arizona, the AWLA Gender Equity Committee, the AWLA Professional Development Committee the Historical Committee for the AWLA Annual Convention and as a Board Member of the Parenting Arizona Advisory Board. Kelley is currently a member of the Valley Estate Planners, Central Arizona Estate Planning Council, the State Bar of Arizona, the Scottsdale Bar Association, and the Arizona Women Lawyers Association. Kelley received her Juris Doctorate from Arizona State University College of Law (cum laude) in 2005 and her Bachelor of Science in Journalism from the University of Arizona (cum laude) in 2002. MARK DIOGUARDI (author) graduated from Stanford University with a B.A., and from Arizona State University’s highly ranked Sandra Day O’Connor School of Law. He was the Managing Attorney of the Dioguardi Law Firm, PLLC. He has handled an estimated $4 billion of real estate and venture capital transactions and financings. Mark has extensive practice in the fields of real estate law and private venture finance, including in the areas of development, acquisitions and dispositions, joint ventures, finance, leasing, syndications, and zoning and entitlements. He was a founding and controlling shareholder of a national bank and bank holding company. Mark Dioguardi has been recognized as one of the Valley’s: Top 10 Leading Lawyers” by the Phoenix Business Journal; “Best of Arizona Attorneys” in Ranking Arizona; “Top Lawyers” by AZ Business Magazine; One of “Arizona’s Finest Lawyers” by Arizona’s Finest Lawyers Organization; “1000 People to Know in Real Estate”; and “Top People to Know in Commercial Real Estate” by Arizona Commercial Real Estate Magazine. 5 DONALD DYEKMAN (author) was a partner in the firm of Dickinson Wright, PLLC. prior to retiring. He concentrated his practice in the area of common interest community law. He represents developers of new residential, commercial, industrial and mixed-use condominiums and planned communities on matters relating to the creation of a governance structure and the preparation of the project documents. He also represents property owners in converting existing residential and commercial projects to a condominium. He has extensive experience in representing community associations of all types and sizes. He is listed in the 2016 Edition of The Best Lawyers in America for Real Estate Law. He is a member of the Real Estate Section of the State Bar of Arizona. He is also a member of the Section of Real Property, Probate and Trust Law of the American Bar Association. He is a past Chair of the ABA Committee on the Operation and Management of Community Associations. He was a member of the Study and Drafting Committee of the State Bar of Arizona which drafted the Arizona Condominium Act. He is a past national President of the Community Associations Institute (CAI) which is a national nonprofit association formed to conduct research and distribute information on the most advanced and effective ways to establish, finance and operate condominiums, planned unit developments and cooperatives. He is a member of The College of Community Association Lawyers which is a national professional organization established by CAI to acknowledge attorneys who have distinguished themselves through contributions to community association law. He is a former Dean of The College of Community Association Lawyers. He has participated as a member of the faculty for seminars on various aspects of community association law sponsored by the American Bar Association, the State Bar of Arizona and the Maricopa County Bar Association as well as seminars sponsored by various private organizations. JOHN ESCHER III (editor) is a shareholder at Waterfall Economidis Caldwell Hanshaw Villamana, PC. For more than 30 years, John’s primary practice has involved real estate and commercial transactions. Mr. Escher has substantial experience in the purchase, sale, leasing, financing and development of apartment buildings, office buildings, shopping centers, industrial property, hotels and restaurants and other commercial properties. He has assisted clients with the entire process of acquiring and developing property for residential subdivisions, including the acquisition of the property, annexation, development agreements, subdivision platting, including condominiums, declarations of covenants, conditions and restrictions, contracts for construction and sale of the completed units. With substantial experience in the creation, operation, purchase and sale of business entities, Mr. Escher represents a wide variety of businesses, including engineering, manufacturing, contracting, real estate development, banks, communication companies and title insurance companies. John received his J.D.