CONSENT TO UTILIZE UNDERPASS EASEMENT -(EXECUTED BY PULTE).PDF

WHEN RECORDED, RETURN TO:
MATTHEW R. BERENS, ESQ.
BERENS BLONSTEIN, PLC
7033 E. GREENWAY PARKWAY, SUITE 210
SCOTTSDALE, AZ 85254
CONSENT TO UTILIZE PROPERTY SUBJECT TO AN EASEMENT
THIS CONSENT TO UTILIZE PROPERTY SUBJECT TO AN EASEMENT (the
““Agreement’) is made as of the day of , 2017 by and among MARICOPA
COUNTY, a political subdivision of the State of Arizona (“County”), and PULTE HOME
COMPANY, LLC, a Michigan limited liability company (“Pulte”). County and Pulte are
collectively herein referred to as the “Parties”.
RECITALS
A. County is the grantee under that certain Easement and Agreement for Highway
Purposes dated as of March 29, 1987 and recorded March 31, 1987 in the Official Records of
Maricopa County, Arizona as Instrument No. 1987-194082 (the “Easement”) of a permanent
easement and right-of way on, over, under and across the real property described therein together
with that certain Slope, Drainage and Ponding Easement recorded in the Official Records of
Maricopa County, Arizona as Instrument No. 87-194115 (collectively the “Easement Property”) all
of which Easement Property is owned in fee by Pulte, subject to the Easement;
B. Pulte is the owner of certain real property in the City of Buckeye (the “City”),
Maricopa County, Arizona, located adjacent to the northern boundary of a portion of the Easement
Property (the “North Golf Course”) and Pulte is the owner of certain real property in the City
located adjacent to the southern boundary of a portion of the Easement Property (the “South Golf
Course”); the North Golf Course and South Golf Course are collectively herein referred to as the
“Golf Courses”;
C. In accordance with the plans and specifications approved by County (the “Plans and
Specifications”), Pulte is constructing a permanent tunnel under a portion of the Easement Property
primarily for ingress and egress to and from the Golf Courses and any adjacent areas (the “Project”.
The County has agreed that the Project will not and does not interfere with the rights granted to
County by the Easement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, County and Pulte, intending to be legally bound for
themselves and their successors and assigns, declare as follows:

1, Project. The Project shal! consist of the installation of a tunnel, as depicted on
Exhibit A attached hereto, constructed and installed in accordance with the Plans and
Specifications in the area which is under a portion of the Easement Property and occupying such
portions of the Easement Property as described on Exhibit B (the “Underpass Area”). Access to
and through the tunnel must be maintained open at all times. The tunnel may not be used for any
purpose other than to allow golf carts, pedestrians, bicyclists and maintenance vehicles to pass
under Sun Valley Parkway.
2. Consent to Utilization of the Underpass Area. County, having determined that the
Project will not interfere with the use of the Easement by the County for the purpose the County
obtained said Easement, and provided Pulte shall obtain all permits required by County for the
Project, hereby consents to the Project by Pulte, at the sole cost and expense of Pulte, and the use
of said Project by Pulte and undertaken successors, assigns, agents, invitees (including by way of
illustration and not limitation all persons constituting members or guests of the Golf Courses),
tenants, employees, licensees, contractors and lenders (collectively, the “Benefitted Parties”).
This consent shall include the right of Pulte to access any and all areas of the Easement Property
as necessary during construction to complete the Project; provided, however, that such access
shall not interfere with the use of the Easement Property by County or the general public that
utilizes the roadway located within the Easement Property. This consent shall remain in full
force and effect so long as the Project remains in place. In the event any material change is
necessary to the Project, Pulte shall obtain consent from the County, as well as any necessary
permits, prior to initiation of any such change.
3. Insurance. Commencing before construction shall begin and so long as the tunnel
shall remain in place, Pulte, or its successor, shall maintain commercial general liability
insurance, with broad form contractual liability coverage, in an amount not less than $1,000,000
per occurrence and $2,000,000 general aggregate, and shall name County and its affiliates as
additional insureds. Pulte agrees to provide County with at least thirty days prior written notice
of any termination or cancellation of such insurance policy. Pulte shall require its contractors and
subcontractors performing any work on the Easement Property to be insured and shall require
that County and its affiliates be named as additional insureds on such policies. Pulte shall
provide Grantor with a certificate of insurance or a copy of the insurance policy and relevant
additional insured endorsement evidencing coverage required by this Agreement within ten days
after execution of this Agreement, and at all relevant times thereafter.
4. Maintenance. So long as the Project remains in place, Pulte will maintain the
Project in substantial conformity with the Plans and Specifications and County’s applicable
requirements for maintenance of underground underpasses below roads and highways. The
County shall have the right to conduct inspection activities at any time and County agrees, to the
extent reasonably possible, to avoid disrupting the uses of the Underpass Area during said
inspections. Pulte shall, at all times, obtain any and all permits that may be required by County
for maintenance activities. Upon Pulte’s receipt of written notice from County setting forth with
appropriate specificity any items which are not being properly maintained by Pulte, Pulte shall
promptly repair same. In the event of an emergency, County shall have the right to perform any
necessary repair; and Pulte shall reimburse County for County’s actual out of pocket costs and
expenses (the “Emergency Repair Expenses”), provided, however, that the Emergency Repair
Expenses shall not include exemplary or punitive damages arising out of or relating to the

Required Repair. The term “emergency” as used herein shall mean a failure to maintain or any
other occurrence which would result in the inability to safely use the surface of the Easement
Property.
5. At such time as the tunnel is no longer necessary, Pulte shall obtain all required
permits to fill and seal the tunnel. In the event Pulte does not properly abandon the tunnel as
described above, County shall fill and seal the tunnel and Pulte shall reimburse County for
County’s actual out of pocket costs and expenses.
6. Covenants Running with the Land. The consent granted here, and all obligation
hereunder, shall run with the land without the necessity of an assignment of this Agreement.
G. Pulte Assignment to HOA. The Parties hereto each expressly acknowledge that
Pulte shall have the right to assign all of its rights and obligations under this Agreement to the
Sun City Festival Community Association, Inc., an Arizona non-profit corporation (the (“HOA”)
(the “Assignment”) without further consent by County. The Assignment shall be effective for
purposes of this Agreement upon the recording of an Assignment and Assumption Agreement
executed by Pulte and the HOA (the “Assignment and Assumption Agreement”). Upon such
recording, Pulte shall be relieved of any obligation to County and County shall look to the
assignee for performance of the obligation imposed upon Pulte by the Agreement upon Pulte
providing to County a copy of the recorded Assignment and Assumption Agreement.
8. No Dedication. Nothing contained in this Agreement shall be deemed a gift or
dedication of any portion of the County Property to the general public or for the general public or
for any public purpose whatsoever.
9. Indemnification. Pulte shall indemnify, defend and save harmless the County, its
agents, officers, employees, directors, successors or assigns against any and all claims, actions,
cost or expenses for any loss or expense whatsoever incurred, including without limitation, all
property damages, personal injuries or death caused by the Project and/or any rights granted by
the consent contained herein.
10. Injunctive Relief; Attorneys’ Fees. Any breach of this Agreement by the other
party would cause County or Pulte (as the case may be) irreparable harm, and thus,
acknowledges that a legal remedy would be inadequate. Each party agrees that the other party,
and its successors and assigns may seek, and shal! be entitled to injunctive relief for any breach
of this Agreement by the breaching party. In the event any legal or other proceeding is instituted
by any party in connection with this Agreement, the costs, expenses and fees, including but not
limited to reasonable attorneys’ fees and costs, incurred by the prevailing party in any such
proceeding shall be assessed against and paid by the other party, and shall be included in any
judgment obtained by the prevailing party.
11. Severability. If any provision of this Agreement shall be judicially determined to
be invalid, illegal, or unenforceable in any respect, the remaining provisions hereof shall not be
affected thereby and shall continue in full force and effect.

12. Notices. All notices under this Agreement shall be in writing and delivered
personally, mailed by certified mail, return receipt requested, postage prepaid, or delivered by
national overnight courier service, addressed to the parties at their last known addresses.
13. Entire Agreement. This Agreement supersedes all agreements previously made
between the parties relating to its subject matter. There are no other understandings or
agreements between the parties regarding the subject matter of this Agreement.
14. Attorneys’ Fees. Should any litigation or administrative proceeding be
commenced between the parties hereto concerning this Agreement, or the rights and duties of
either party in relation thereto, the prevailing party in such litigation or proceeding, shall be
entitled, in addition to such other relief as may be granted, its reasonable attorneys’ fees, expert
witness fees, litigation related expenses, and court costs in such litigation or proceeding.
15. Headings. Headings contained in this Agreement have been inserted for
convenience only, do not in any way define, limit, enlarge, modify, or describe the scope or
intent of any provision hereof and shall not be considered when interpreting or construing the
same.
16. Cancellation. This Agreement is subject to cancellation pursuant to the provisions
of Arizona Revised Statutes Section 38-511.
17. | Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Arizona.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES APPEAR ON FOLLOWING PAGE.]

IN WITNESS WHEREOF, County and Pulte have executed this Agreement as of the date
first above written.
COUNTY:
MARICOPA COUNTY, a political subdivision of the
State of Arizona
By:
Name:
Title:
STATE OF )
) ss.
County of )
This instrument was acknowledged before me this day of ,
2017, by as of MARICOPA
,
COUNTY, a political subdivision of the State of Arizona.
Notary Public
My Commission Expires:

PULTE:
PULTE HOME COMPANY, LLC, a Michigan
STATE OF Ape ana )
) ss.
County Of WWaceerpe )
This instrument was acknowledged before me thisQuun day of Merceer> __,
2017, by Pewee on: Vurne~ ayo. Pao of PULTE HOME
COMPANY, LLC, a Michigan limited liability company, on behalf thereof.
bi
)
Notary Public
My Commission Expires: Shrowe?
4145 LINDA J. GROSSBERG
S Notary Public - State of Arizona
MARICOPA COUNTY
ii My Commission Expires May 10, 2018

EXHIBIT A
Depiction of the Project

AZ
TUNNEL
BUCKEYE,
2016
CART 27,
1'-0" OF April
CITY GOLF
2'-0"
$2024
CA Encinitas, 724-1198
(B68)
SPAN | Fax
#538 |
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(258)
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EXHIBIT B
Legal Description of Underpass Area
Legal Description
MCDOT to Pulte Home Company, LLC
A parcel of land situated in a portion of the west half of Section 25, Township 4 North, Range 4 West of
the Gila and Salt River Meridian, Maricopa County, Arizona, more particularly described as follows:
Commencing at the west quarter corner of said Section 25, monumented by a found M.C,H.D, Brass
Cap, from which the east quarter corner of said Section 25, monumented by a found G.L.O. Brass Cap,
bears as a basis of bearings South 89°35’39” East, a distance of 5280.12 feet;
THENCE along the east-west mid-section line of said Section 25, South 89°35'39" East, a distance of
1026,97 feet to the Point of Beginning;
THENCE departing said mid-section line, North 00°24'21" East, a distance of 75.00 feet to a point on the
north right of way line of Sun Valley Parkway, as recorded in Book 33 of Maps, Page 4, Maricopa
County Records (M.C.R,);
THENCE along said north line, South 89°35'39" East, a distance of 20.00 feet;
THENCE departing said north line, South 00°24'21" West, a distance of 150,00 feet to a point on the
south right of way line of Sun Valley Parkway, as recorded in Book 33 of Maps; Page 4, M.C.R;
THENCE along said south line, North 89°35'39" West, a distance of 20.00 feet;
THENCE departing said south line, North 00°24'21" Hast, a distance of 75.00 feet to the Point of
Beginning.
The above described parcel of Jand contains 3,000 square feet or 0.0689 acres more or less,
Subject to all covenants, rights of way and easements of record.
Expizes B)silig

-— WEST-QUARTER CORNER OF SECTION 25
TOWNSHIP 4 NORTH, RANGE 4 WEST EAST QUARTER CORNER OF SECTION 25 —
GILA AND SALT RIVER MERIDIAN TOWNSHIP 4 NORTH, RANGE 4 WEST
FOUND N.C.H.D: BRASS CAP IN HANDHOLE GILA AND SALT RIVER MERIDIAN
POINT OF COMMENCEMENT FOUND G.L.O, BRASS CAP IN HANDHOLE
APN: 503-84-024M
PULTE HOME CORPORATION
INST. NO, 04-0549480, M.C.R.
$89°96'39"E
oe = ee
a
——,
wi MID-SECTION LINE
= OF SECTION 25
SUN VALLEY |
ai “i
wo 4
PARKWAY get i
z | ot
02697 - Ee
“1, _ 4026.97" an aa _4233.16'__ Ge amp
‘~ “(BASIS OF BEARINGS) $89°35'99"E 280,127 oe a
2
POINT OF | 88 9 =
BEGINNING 7 | in 3 Q6
sel |? Bs
o | a
z |_— Nag’3s'3o"W .
20.00' |
i if
APN: 503-84-024B
PULTE HOME CORPORATION
INST. N®, 04-0549480, M.C.R,
SCALE: 50!
4	1	23	1	2	0	441	2357	510	29	-1	
5	1	23	1	2	1	441	2357	267	29	49.497849	528
5	1	23	1	2	2	910	2358	41	27	65.983490	50!
4	1	23	1	3	0	469	2431	1617	75	-1	
5	1	23	1	3	1	469	2431	163	75	0.000000	CI)
5	1	23	1	3	2	652	2449	235	39	27.212311	Carcdno
5	1	23	1	3	3	1135	2459	133	29	92.015312	AGCESS
5	1	23	1	3	4	1280	2459	173	29	96.820580	EASEMENT
5	1	23	1	3	5	1681	2446	147	29	95.589828	PROJECT
5	1	23	1	3	6	1838	2448	53	27	96.609047	NO.
5	1	23	1	3	7	1906	2445	180	29	75.065536	4161061000
4	1	23	1	4	0	654	2495	1377	73	-1	
5	1	23	1	4	1	654	2500	112	63	35.796089	sate
5	1	23	1	4	2	782	2500	58	68	51.096123	Ra
5	1	23	1	4	3	973	2498	119	30	48.880470	MEDOT
5	1	23	1	4	4	1100	2499	47	30	88.013535	TO
5	1	23	1	4	5	1157	2498	101	31	88.013535	PULTE
5	1	23	1	4	6	1269	2498	94	29	95.188339	HOME
5	1	23	1	4	7	1374	2499	166	32	95.188339	COMPANY,
5	1	23	1	4	8	1555	2499	57	29	42.051971	LLC
5	1	23	1	4	9	1681	2496	89	28	42.051971	DATE:
5	1	23	1	4	10	1908	2495	123	30	42.086533	09/1317
4	1	23	1	5	0	424	2536	1555	37	-1	
5	1	23	1	5	1	424	2536	82	27	90.226540	19621
5	1	23	1	5	2	524	2536	26	28	60.730701	N.
5	1	23	1	5	3	563	2537	93	27	95.370354	23RD.
5	1	23	1	5	4	669	2536	99	27	93.302696	DRIVE,
5	1	23	1	5	5	787	2536	62	29	92.231598	STE
5	1	23	1	5	6	861	2537	57	32	57.982708	150,
5	1	23	1	5	7	1679	2546	47	26	93.203072	BY:
5	1	23	1	5	8	1906	2545	73	28	78.954750	SWR
4	1	23	1	6	0	517	2548	1477	75	-1	
5	1	23	1	6	1	517	2575	309	32	27.114128	ee!
5	1	23	1	6	2	1035	2548	116	33	96.342941	GOLF
5	1	23	1	6	3	1160	2548	112	33	93.226952	CART
5	1	23	1	6	4	1281	2548	248	33	92.620407	UNDERPASS
5	1	23	1	6	5	1678	2597	110	26	0.000000	-s
4	1	23	1	7	0	528	2614	1260	36	-1	
5	1	23	1	7	1	528	2614	286	36	74.156914	TEL:(602)877-8000
5	1	23	1	7	2	965	2617	73	28	96.813179	CITY
5	1	23	1	7	3	1048	2616	45	34	96.531441	OF
5	1	23	1	7	4	1105	2617	158	33	95.315231	BUCKEYE,
5	1	23	1	7	5	1277	2617	169	28	95.127846	MARICOPA
5	1	23	1	7	6	1455	2617	135	27	96.669441	COUNTY
4	1	23	1	8	0	1678	2645	320	28	-1	
5	1	23	1	8	1	1678	2645	167	28	71.517120	SHEETNO.
5	1	23	1	8	2	1906	2645	69	26	79.757210	10F
5	1	23	1	8	3	1987	2645	11	26	76.529823	1
2	1	24	0	0	0	404	2697	1743	10	-1	
3	1	24	1	0	0	404	2697	1743	10	-1	
4	1	24	1	1	0	404	2697	1743	10	-1	
5	1	24	1	1	1	404	2697	1743	10	95.000000	 
2	1	25	0	0	0	2150	369	15	2337	-1	
3	1	25	1	0	0	2150	369	15	2337	-1	
4	1	25	1	1	0	2150	369	15	2337	-1	
5	1	25	1	1	1	2150	369	15	2337	95.000000
FAX:(802)877-8099