MARICOPA TRAIL AGREEMENT WITH VERRADO.PDF

DocuSign Envelope ID: B7CFA5D7-BA49-49B0-AED5-47B0CBFD0F44
MARICOPA TRAIL AGREEMENT
BETWEEN
MARICOPA COUNTY
AND
VERRADO COMMUNITY ASSOCIATION, INC.
This Maricopa Trail Agreement (hereinafter referred to as “AGREEMENT”) is made and entered into
between the County of Maricopa, a political subdivision of the State of Arizona (hereinafter referred to as
“COUNTY”), and Verrado Community Association, Inc., an Arizona non-profit corporation (hereinafter referred to
as “VERRADO”), together hereinafter referred to as “Parties” or individually as a “Party”.
RECITALS
WHEREAS, the COUNTY is authorized to enter into this AGREEMENT pursuant to A.R.S. §11-201; and
WHEREAS, the COUNTY, through its Parks and Recreation Department (hereinafter referred to as
“MCPRD”) provides recreational opportunities and programs to the public; and
WHEREAS, VERRADO is a homeowners association that acquired and developed a pathway, which is
more fully described on Exhibit A, attached hereto and incorporated herein by this reference, (hereinafter referred to
as “VERRADO TRAIL SYSTEM”) along the east side of the VERRADO development; and which is primarily
owned by VERRADO and owned in part by affiliated parties, DMB WHITE TANK, LLC, an Arizona limited
liability company, and VERRADO ASSEMBLY, an Arizona nonprofit corporation, who have authorized
VERRADO to act on their behalf in entering into this Agreement; and
WHEREAS, VERRADO provides recreational opportunities and programs, including off-street non-
motorized multiuse paths, within the limits of VERRADO; and
WHEREAS, the COUNTY, through its MCPRD, desires to incorporate a portion of the VERRADO
TRAIL SYSTEM in order to continue the Maricopa Trail, identified as Maricopa Trail Segment 35 (the “TRAIL”);
and
WHEREAS, such a proposed TRAIL section would provide an alternative transportation route through the
west valley communities, including VERRADO, with sections of the Maricopa Trails that connect White Tank
Mountain Regional Park to Estrella Mountain Regional Park; and
WHEREAS, since this AGREEMENT will require administrative action from time to time to carry out the
spirit and intent of the AGREEMENT, the COUNTY’s Director of MCPRD and VERRADO’S Executive Director
or designee are hereby given the authority and charged with the responsibility for proper administration of this
AGREEMENT, whether or not specific authority is granted in any provision of this AGREEMENT.
NOW, THEREFORE, in consideration of the foregoing and other valuable consideration, adequacy and
sufficiency of which are hereby acknowledged, and mutual promises and agreements of the Parties herein, it is
agreed as follows:
1. Purpose.
The purpose of this AGREEMENT is to provide a formal basis for linking existing and proposed new
TRAIL in a cooperative effort between COUNTY and VERRADO for improved natural resources
management and to provide additional opportunities for members of the public to use this area for a
recreational trail.
2. Term and Termination.
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2.1 Term.
2.1.1 Effective Date.
The Effective Date of this AGREEMENT will be shall be the date of the signature of the
Maricopa County Board of Supervisors.
2.1.2 Term and Renewal Option.
The Term of this AGREEMENT is for a period of twenty five (25) years with one (1) twenty five
(25) year renewal option (“RENEWAL OPTION”). Approval of the RENEWAL OPTION shall
be mutually agreed to by the Parties within thirty (30) days of the end of the Term.
2.2 Termination.
2.2.1 Termination by the Parties.
This AGREEMENT may be terminated with or without cause with the mutual agreement
of both Parties. The Party requesting the termination must submit its request, in writing,
a minimum of ninety (90) days in advance of the requested termination date. Said
request for termination will be sent to the intended other Party by U.S. Postal Service,
certified, return receipt requested. Delivery will not be complete until the U.S. Postal
Service has notified the sender the request has been delivered to the other Party or the
other Party refuses delivery.
2.2.2 Ownership of Improvements upon Expiration or Termination.
Each Party will retain ownership of improvements on their respective property(ies) upon
expiration or termination of the AGREEMENT. Any equipment or other personal
property used in performance of this AGREEMENT shall be returned to the Party
holding title thereto.
2.2.3 Termination due to Conflict of Interest.
The Parties acknowledge that this AGREEMENT is subject to cancellation pursuant to
the provisions of A.R.S. §38-511.
2.2.4 Hold Over.
Should either Party continue to provide the services described herein after the expiration
of the Term or RENEWAL OPTION, such continued service shall be deemed a hold over
on a month-to-month basis, with all of the terms and conditions of this AGREEMENT to
continue in full force and effect for a period not to exceed one hundred eighty (180) days.
3. Scope of the Agreement.
3.1 Mutual benefits of the AGREEMENT to both Parties.
3.1.1 Clearly delineates authorities and responsibilities for the Parties.
3.1.2 Provides a platform for future collaboration and cooperation regarding linkage of public
trails to benefit the public and both parties.
3.1.3 Provides a specific transportation route through the west valley communities, including
VERRADO, with sections of the Maricopa Trails that connect White Tank Mountain
Regional Park to Estrella Mountain Regional Park
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3.2 COUNTY shall be responsible for the following:
3.2.1 Placing signs on the TRAIL designating it as the Maricopa Trail and that equestrian use
is prohibited within the boundaries of VERRADO.
3.2.2 Post the legend of maps on the MCPRD website and related maps that the VERRADO
portion of the Maricopa Trail is prohibited for equestrian use.
3.2.3 COUNTY will design, fund, construct and maintain necessary connector TRAIL within
the boundaries of VERRADO subject to the availability of resources, i.e. funding, labor
and materials.
3.2.4 COUNTY will coordinate with VERRADO and the City of Buckeye for the placement of
the connecting TRAIL along Indian School Road and will obtain necessary reports at
COUNTY’S expense.
3.2.5 COUNTY will coordinate the archeological clearance for all TRAIL work associated
with this AGREEMENT.
3.3 VERRADO shall be responsible for the following:
3.3.1 Own, jointly with DMB White Tank, LLC and Verrado Assembly, and manage the
TRAIL within the VERRADO community.
3.3.2 Maintain operational control of the TRAIL and VERRADO TRAIL SYSTEM within the
VERRADO community.
3.3.3 Coordinate with COUNTY in the design of connector TRAIL to the existing VERRADO
TRAIL SYSTEM.
3.4 Both Parties shall mutually be responsible for the following:
3.4.1 Parties agree to make staff, volunteers and partnered agencies/affiliates available to
provide input, advice and assistance as requested and feasible.
3.4.2 Parties are responsible for cooperatively required funding and mutual studies, i.e.
archeological clearance for all TRAIL and VERRADO TRAIL SYSTEM work within
properties for which they are responsible.
3.4.3 Each Party will assist the other Party upon request, within their capability and available
funding, with TRAIL and VERRADO TRAIL SYSTEM design and maintenance.
3.4.4 Each Party is responsible for the completion of all applicable environmental studies and
for the acquisition of all applicable permits and licenses for improvements or construction
within their respective properties.
3.4.5 Each Party is responsible for management and proper disposal of all hazardous material
within their respective properties.
3.5 Access.
3.5.1 Traffic on the TRAIL within VERRADO community is restricted to pedestrians and
bicyclists only unless otherwise changed by consent of both parties by amendment to this
AGREEMENT. Traffic on new or additional trails within the VERRADO property will
be as determined by VERRADO.
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3.5.2 Points of access between the VERRADO property and adjoining property will be as
agreed upon between the Parties.
3.5.3 TRAIL designation and access into VERRADO remains the responsibility of MCPRD.
3.5.4 Public parking on VERRADO property or COUNTY property will be as directed by
VERRADO or COUNTY, respectively, through the MCPRD.
4. Notices, Addresses and Points-of-Contact.
Any notices required or permitted 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, (iii) given to a
recognized and reputable overnight delivery service, to the address set forth below or (iv) delivered
electronically by email with a request for delivery receipt for message.
For MCPRD: Mr. RJ Cardin, Director
Maricopa County Parks and Recreation Department
41835 North Castle Hot Springs Road
Morristown, Arizona 85342
Phone: 928-501-9200
Email: rjcardin@mail.maricopa.gov
For VERRADO: Mr. Todd Hornback, Executive Director
Community Life Verrado
4252 North Verrado Way #B200
Buckeye, Arizona 85396
Phone: 623-466-7016
Email: thornback@dmbinc.com
5. General Provisions.
5.1 Indemnification.
The PARTIES hereby agree that to the extent permitted by law, each PARTY will defend, protect,
release, indemnify and save the other PARTIES harmless, including any of the PARTIES’
departments, agencies, officers, employees, elected officials or agents, from and against all loss,
expense, damage or claim of any nature whatsoever which is caused by any activity, condition or
event arising directly or indirectly, in whole or in part, out of the performance or nonperformance
by the indemnifying party of any of the provisions of this AGREEMENT . Each PARTY hereby
indemnifies the other against all liability, losses and damages of any nature for or on account of
any injuries or death of persons or damages to or destruction of property arising, directly, or
indirectly, in whole or in part, out of or in any way connected with the performance or
nonperformance of this AGREEMENT, except such injury or damage as shall have been
occasioned by the negligence of that other PARTY. The damages which are the subject of this
indemnity shall include but not be limited to the damages incurred by any PARTY, its
departments, agencies, officer’s, employees, elected officials or agents. In the event of an action,
the damages which are the subject of this indemnity shall include costs, expenses of litigation and
reasonable attorneys’ fees.
5.2 Security Interest.
Each Party hereby acknowledges and agrees that this AGREEMENT does not give the other Party
any right, title or interest in the property owned by the other Party and all right, title and interest in
the property lies and remains with the respective Party.
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5.3 Assignment and Delegation.
Neither Party may assign any rights hereunder without the express, written, prior consent of both
Parties.
5.4 Waiver.
The waiver by either Party of any breach of any one or more of the covenants, conditions or
provisions of this AGREEMENT shall not be construed to be a waiver of any subsequent or other
breach of said covenants, conditions or provisions of this AGREEMENT. Any failure on the part
of either Party to require or exact full and complete compliance with any of the covenants,
conditions or provisions of the AGREEMENT shall not be construed to, in any manner, change
the terms hereof or preclude such Party from enforcing the full provisions of this AGREEMENT.
5.5 Agent, Employees, Contractors, Subcontractors.
VERRADO will ensure full compliance with all applicable terms and conditions of this
AGREEMENT by its agents, employees and contractors (including sub-contractors of any tier)
and their respective employees. Failure or refusal of the Verrado or its agents, employees,
contractors, sub-contractors or their employees to comply with these terms and conditions will be
deemed a breach of this AGREEMENT.
5.6 Compliance with Non-Discrimination Laws.
The PARTIES agree to comply with all applicable state and federal laws, rules, regulations and
executive orders governing equal employment opportunity, non-discrimination, and affirmative
action.
5.7 E-Verify
To the extent applicable under Arizona Revised Statutes § 41-4401, each Party and its contractors
and subcontractors warrant their compliance with all federal immigration laws and regulations that
relate to their employees and their compliance with the E-verify requirements under Arizona
Revised Statutes § 23-214(A). A breach of the above-mentioned warranty by any Party or its
contractors or subcontractors shall be deemed a material breach of the AGREEMENT and may
result in the termination of the AGREEMENT by the non-breaching Party. Each Party retains the
legal right to randomly inspect the papers and records of the other Party's or its contractors' or
subcontractors' employees who work on the Project to ensure that the other Party and its
contractors and subcontractors are complying with the above-mentioned warranty.
5.8 Conflict of Interest
The parties acknowledge that this AGREEMENT is subject to cancellation provisions pursuant to
A.R.S. § 38-511, the provisions of which are incorporated herein and made a part hereof.
5.9 Consents and Approvals.
The Parties agree to act in good faith and with fair dealing with one another in the execution,
performance and implementation of the terms and provisions of this AGREEMENT. Whenever
the consent, approval or other action of a Party is required under any provision of this
AGREEMENT, such consent, approval or other action shall not be unreasonably withheld,
delayed or conditioned by a Party unless the provision in question expressly authorizes such Party
to withhold or deny consent or approval or decline to take action in accordance with a different
standard, in which case the consent or approval or the decision to not take action may be withheld,
delayed or conditioned in accordance with the different standard.
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5.10 Further Assurances; Cooperation.
Each of the Parties hereto agree to cooperate and provide all additional documents and other
assurances that are reasonably necessary to carry out and give effect to the intent of the Parties
reflected in this AGREEMENT.
5.11 Governing Law.
This AGREEMENT shall be construed under the laws of the State of Arizona.
5.12 Default; Remedies
5.12.1 Each of the following shall constitute a material breach of this AGREEMENT and an
event of the default by the respective Party (“EVENT OF DEFAULT”). A Party’s failure
to observe or perform any of the material covenants, conditions or provisions of this
AGREEMENT, where such failure shall continue for a period of thirty (30) days after
such Party receives written notice of such failure from the other Party provided, however,
that such failure shall not be an Event of Default if the defaulting Party has commenced
the cure within such thirty (30) day period and thereafter is diligently pursuing such cure
to completion, but the total aggregate cure period shall not exceed ninety (90) days unless
the Parties agree in writing.
5.12.2 In the event the defaulting Party fails to perform any of its material obligations under this
AGREEMENT and is in default, the other Party may, at its option, immediately terminate
this Agreement. Further, upon the occurrence of any Event of Default and at any time
thereafter, the non-defaulting Party may, but shall not be required to, exercise any
remedies now or hereafter available at law or in equity.
6. Entire Agreement; Modification.
This AGREEMENT, together with any supplemental provisions attached hereto, constitutes the entire
AGREEMENT between the Parties and sets forth all of the covenants, promises, agreements, conditions or
understandings, either oral or written, between VERRADO and COUNTY, other than as set forth herein,
and those agreements that are executed contemporaneously herewith. This AGREEMENT shall be
construed as a whole and in accordance with its fair meaning and without regard to any presumption or
other rule requiring construction against the party drafting this AGREEMENT. This AGREEMENT
cannot be modified or changed except by a written instrument executed by VERRADO and COUNTY.
VERRADO and COUNTY have reviewed this AGREEMENT and have had the opportunity to have it
reviewed by legal counsel.
6.1 Incorporation of Recitals.
The recitals to this AGREEMENT are hereby affirmed by the PARTIES as true and correct and
are incorporated in and made a part of this AGREEMENT by this reference.
6.2 Exhibits.
All exhibits attached to and referenced in this AGREEMENT are by this reference incorporated
herein.
6.3 Invalidity of Part of this AGREEMENT.
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The PARTIES agree that should any part of this AGREEMENT be held to be invalid or void, the
remainder of the AGREEMENT shall remain in full force and effect and shall be binding upon the
PARTIES.
7. Attorneys’ Fees.
If suit or action is commenced to enforce compliance with any term, covenant or condition of this
AGREEMENT, including any action undertaken in the context of bankruptcy proceedings, the Party not
prevailing shall pay to the prevailing Party a sum which the trial judge determines is reasonable as
attorneys’ fees to be allowed in the suit or action, and court costs, and if appeal is taken from any judgment
or decree in the suit or action, the Party not prevailing on the appeal shall pay to the prevailing Party such
further sum as the appellate court shall adjudge reasonable as attorneys’ fees on appeal, and court costs.
8. Force Majeure.
The occurrence of any of the following events shall excuse performance of such obligations of a Party as
are rendered impossible or reasonably impracticable to perform while such continues: strikes; lockouts; acts
of God; inability to get materials; governmental restrictions; enemy or hostile governmental action; fire or
other casualty; and other causes beyond the reasonable control of the Party obligated to perform (all events
of “Force Majeure”).
9. Authority.
Each Party covenants and warrants to the other Party that: (a) it is duly authorized to execute this
AGREEMENT; and (b) the execution of this AGREEMENT has been duly authorized by the applicable
Party.
10. Counterparts.
This AGREEMENT may be executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument. Faxed and copied signatures
are acceptable as original signatures.
11. Time is of the Essence.
Time is of the essence of this AGREEMENT. If the date for performance of any obligation hereunder or
the last day of any time period provided herein shall fall on a Saturday, Sunday or legal holiday, then said
date for performance or time period shall expire on the first day thereafter which is not a Saturday, Sunday
or legal holiday.
12. Other Landowner Consent.
All property owners of the TRAIL that is proposed through the VERRADO development need to consent
and hereby do consent to the terms of this AGREEMENT, and VERRADO desires to have VERRADO
ASSEMBLY, an Arizona nonprofit corporation, and DMB WHITE TANK, LLC, an Arizona limited
liability company, consent to VERRADO acting on their behalf for purposes of this AGREEMENT. Such
consent is evidenced by their respective signatures to this AGREEMENT.
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IN WITNESS HEREOF, the Parties have executed this AGREEMENT on the dated indicated.
MARICOPA COUNTY VERRADO COMMUNITY ASSOCIATION, INC.,
an Arizona nonprofit corporation
__________________________________ ____________________________________
Chairman Date By: Date
ATTEST
__________________________________
Clerk of the Board Date
Approved as to Form:
__________________________________
Attorney for Maricopa County Date
Other Landowner Consent:
ACCEPTED AND AGREED TO, BY:
VERRADO ASSEMBLY, an Arizona nonprofit corporation
By:
Its:
Date:
DMB WHITE TANK, LLC, an Arizona
limited liability company
DMB Associates, Inc., an Arizona corporation, its Manager
By:
Its:
Date:
.
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EXHIBIT A – Trail Plan North Half
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EXHIBIT A CONTINUED – Trail Plan South Half
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DocuSign Envelope ID: B7CFA5D7-BA49-49B0-AED5-47B0CBFD0F44
Document comparison by Workshare Compare on Thursday, January 07, 2016
4:11:23 PM
Input:
file://P:/Verrado/Agreements/Maricopa County/MOA
Document 1 ID
Verrado and County Final 12.08.2015.docx
Description MOA Verrado and County Final 12.08.2015
file://P:/Verrado/Agreements/Maricopa County/MOA
Document 2 ID
Verrado and County Final (DMB edits 01-07-16).docx
Description MOA Verrado and County Final (DMB edits 01-07-16)
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