115TH HAPPY VALLEY ROW ACQ ARGREEMENT.PDF

When recorded, return to:
Maricopa County Real Estate Department
2901 West Durango Street
Phoenix, Arizona 85009
Attention: Gary M. Scott
RIGHT OF WAY ACQUISITION AGREEMENT
THIS RIGHT OF WAY ACQUISITION AGREEMENT (the "Agreement") is entered
into by and between MARICOPA COUNTY, a political subdivision of the State of Arizona (the
"County") and HAPPY VALLEY & 115 TH SELF STORAGE PARTNERS, a Delaware limited
liability company (the "Developer").
RECITALS
A. The Developer wants to use certain right of way owned by a public land agency
(the "Right of Way").
B. The County is willing to apply to the public land agency to amend its existing
right of way (#16-107964) to include the additional Right of Way on behalf of the Developer.
C. A public land agency has certain requirements an applicant must meet before it
grants, conveys, or amends Right of Way and after it grants, conveys, or amends Right of Way.
D. Developer is responsible for all of the costs and obligations imposed by a public
land agency upon the applicant for the Right of Way. The Developer must also meet all of the
costs and obligations imposed upon or imposed by the County for the purposes of acting as the
applicant for the Right of Way.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and agreements set forth herein, the parties hereto state, confirm and agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS.
The parties acknowledge the truth and accuracy of the foregoing recitals and incorporate
them herein by this reference.
2. PRE APPLICATION REQUIREMENTS.
Before the County will make an application to a public land agency for the Right of Way
the following must occur:
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2.1 Ownership and Parcel Identification. The Developer is required to provide
to the County the location and identification of the parcels or the portion of parcels in public
ownership of the public land agency that the Developer wishes to use. This list will be submitted
by the Developer directly to the Real Property Branch Manager located in the Maricopa County
Real Estate Department.
2.2 Alignment Approval. The Developer is required to provide to the county
an alignment of the Right of Way. The alignment must comply with County design and
development standards and must be reviewed and approved by Maricopa County's Department
of Transportation, Engineering Department.
2.3 Preliminary Title Report. If required by the public land agency, the
Developer must provide to the County a Preliminary Commitment for Title Insurance for the
Right of Way.
2.4 Legal Descriptions. The Developer will have all legal descriptions
prepared and sealed by a Registered Land Surveyor and submitted to the County for review and
approval. Legal descriptions must be in a recordable format acceptable to the County.
2.5 Right of Way Plans. The Applicant will prepare a plan map and any
necessary exhibits or plats depicting the Right of Way. This map must be submitted on mylar
and electronically using Microstation.DGN format unless otherwise directed by the Maricopa
County Real Estate Division or public land agency. The right-of-way plans shall conform with
requirements set forth by the public land agency.
3. APPLICATION AND RIGHT OF WAY APPROVAL PROCESS
3.1 General Post Application Requirements. The Developer must negotiate
and discuss the Right of Way application with the public land agency and be the primary contact
regarding the application. The Developer must notify the County of any matters that arise during
the application process and, at its own discretion, the County may choose to attend meetings or
be part of any communication associated with the application process. The Developer is
required to fulfill requirements set forth by the public land agency. The Developer is required to
pay all costs associated with fulfilling the requirements of the public land agency. The
Developer is also required to pay for the purchase, if required, of the Right of Way as determined
in the application approval process
3.2 Environmental and Cultural Clearances and Engineering Studies. The
Developer must prepare and submit any environmental reports, cultural clearances, engineering
reports, or any other technical report or study required by the public land agency. The Developer
is obligated to comply with any requirements associated with the Right of Way application
process or as directed by the public land agency. The Developer shall provide to the County an
opportunity to review and approve any such technical submittals to the public land agency.
3.3 Appraisals. The Developer must obtain any appraisals required by the
public land agency for the amendment and use of the Right of Way or pay the public land agency
to have said appraisal work performed. The Developer is responsible for any and all costs
associated with appealing the land cost as determined by the public land agency.
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4. POST APPROVAL CONDITIONS
4.1 Bonding or other Supplemental Conditions. The Developer must comply
with or bond for any special or supplemental conditions set forth by the County or the public
land agency granting the Right of Way. Bonding amount will be determined and will be
established by Maricopa County's Department of Transportation Engineering Division. A
development agreement or other documents may be required to assure compliance with future
post approval conditions.
4.2 Title Policies. If required by the County, the Developer shall provide to
the County a Title Insurance Policy for all Right of Way obtained from the public land agency.
4.3 Project Certification. The Developer is required to file a project
certification with Maricopa County's Real Estate Department Dedication Coordinator at the time
the Right of Way is obtained from the public land agency. This certification will include a list of
the properties by name and assessor parcel number, the recording number of the Right of Way
conveyance document, and a statement certifying that the Right of Way corridor has been
obtained and accepted by the County.
5. GENERAL PROVISIONS.
5.1 Manner of Serving. Any notice or other communication required or
permitted to be given under this agreement shall be in writing and shall be deemed to have been
duly given if (i) delivered to the party at the address set forth below, (ii) deposited in the U.S.
mail, registered or certified, return receipt requested, to the address set forth below, or (iii) given
to a recognized and reputable overnight delivery service, to the address set forth below, unless
otherwise indicated in this Agreement:
The County:
Maricopa County Real Estate Department
2801 West Durango Street
Phoenix, AZ 85009
Attn: Dedication Coordinator
The Developer:
Happy Valley & 115th Self Storage Partners, LLC
do 1784 Capital Holdings, LLC
Attn: Kelly McKone
7373 North Scottsdale Road, Suite B270
Scottsdale, Arizona 85253
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with a copy to:
G. Adam Baugh, Esq.
Withey Morris PLC
2525 E Arizona Biltmore Circle #A-212
Phoenix, AZ 85016
or to such other addresses as either party hereto may from time to time designate in writing and
delivery in a like manner.
5.2 Mailing Effective. Any notice or other communication directed to a party
to this Agreement shall become effective upon the earliest of the following:
(a) actual receipt by the party;
(b) delivery to the address of the party; or
(c) if given by certified or registered U.S. Mail, return receipt requested, 72
hours after deposit with the United States Postal Service, addressed to the party.
5.3 Indemnification. The Developer shall indemnify, protect, defend and hold
harmless the County, its Board members, officers, employees, and agents from any and all
claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial
proceedings and orders, judgments, remedial actions of any kind, and all costs and cleanup
actions of any kind, all costs and expenses incurred in connection therewith, including, without
limitation, reasonable attorney's fees and costs of defense ("Claims") arising, directly or
indirectly, in whole or in part, out of the exercise of this Agreement or the application for the
Right of Way by the County.
5.4 Developer's Obligation. All costs incurred by the County or the
Developer under this Agreement or under the application for the Right of Way must be paid by
the Developer regardless of the outcome of the application for the Right of Way.
5.5 County's Discretion to Withdraw. The County may withdraw as the
named applicant for the Right of Way at any time at its sole discretion. If the County should
withdraw, the Developer remains responsible for all costs as outlined in Section 5.4 above.
5.6 Amendment. No change or addition is to be made to this Agreement
except by written amendment executed by the parties hereto. Within ten (10) days after any
amendment to this Agreement, such amendment shall be recorded in the Official Records of
Maricopa County, Arizona. Developer acknowledges and understands that no modification of
this Agreement shall have any force or effect unless approved by the Board of Supervisors in a
public meeting and signed by the Chairman of the Board of Supervisors.
5.7 Authority. Each of the parties represents and warrants to the other that the
persons executing this Agreement on behalf of the respective parties are authorized and
empowered to bind the party on whose behalf each such individual is signing.
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5.8 Severability. If a Court of competent jurisdiction declares any provision
of this Agreement void or unenforceable, such provisions shall be severed from this Agreement,
which shall otherwise remain in full force and effect.
5.9 Governing Law. This Agreement shall be interpreted and governed
according to the laws of the State of Arizona. The venue for any dispute hereunder shall be
Maricopa County, Arizona. This Agreement is subject to the provisions of A.R.S. § 38-511.
5.10 Construction of Agreement. This Agreement has been arrived at by
negotiation and shall not be construed against either Party or against the Party who prepared the
last draft.
5.11 Recordation. This Agreement shall be recorded in its entirety in the
Official Records of Maricopa County, Arizona, not later than ten (10) days after its full
execution. Either party, upon the request of the other party, will record an acknowledgment of
the fulfillment of the terms of this Agreement once the requirements of the Agreement have been
fulfilled.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on
the date and at the time the Maricopa County Board of Supervisors approves and adopts this
Agreement.
THE COUNTY:
MARICOPA COUNTY, a political subdivision of
the State of Arizona
MARICOPA COUNTY BOARD OF SUPERVISORS
By:
Name:
Date:
Attest:
, County
Approved as to rom and within the powers
and authority of the Board of Supervisors
Deputy County Attorney
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THE DEVELOPER:
HAPPY VALLEY & 115 Th SELF STORAGE
PARTNERS, LLC, a Delaware limited liability
company
By: 1784 Capital Holdings, LLC, a Delaware
limited liability company
Its: Manager A 9
By:
Shane Albers
Its: Sole Member
STATE OF ARIZONA )
) ss.
County of Maricopa
The foregoing instrument was acknowledged before me this c* day of
, 2017, by S kratc tkca.t.If who acknowledged before
tha he or she is the _i_v_._(11 4.1c,tix,r of 04 1 LL ., a
DeAtwa,re icid I ;kb- eoler,rao.v and that he or she, in such tpacity, being
authorized so to do, signed the fdregoing instrufnent, on behalf of the company.
VU...fVkletz-L-
Nota&Nic
My Commission Expires:
frl tLW 3) ) 076Q0 OFFICIAL SEAL
NOTARY JERRI PUBLIC BRENNER - STATE OF ARIZONA
My Comm. MARICOPA Expires January COUN1Y 31,2020
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