KEIGHLEY PLACE DEVELOPER HOA SIGNED AGREEMENT.PDF

AGREEMENT BETWEEN
MARICOPA COUNTY AND NEWCASTLE DEVELOPMENT LLC,
AND KEIGHLEY PLACE COMMUNITY ASSOCIATION, INC.
This Agreement is made on July , 2015, by and among:
Maricopa County, a political subdivision of the State of Arizona, with an address at 2901
W. Durango, Phoenix, Arizona 85009 (hereinafter County)
And
Newcastle Development LLC, a Domestic Limited Liability Corporation of the State of
Arizona, with an address at 6628 East Baseline Road, Suite 102, Mesa Arizona 85206
(hereinafter Developer).
And
Keighley Place Community Association, Inc., an Arizona Not for Profit Corporation, with
an address care of City Property Management Company, Attention: Patti Garvin or
Brian Lincks, 4645 E. Cotton Gin Loop, Phoenix, Arizona 85040 (hereinafter HOA)
Whereas, Keighley Place subdivision (hereinafter referred to as Subdivision) was
approved by the City of Mesa; and
Whereas, the property that became Section of the Subdivision has contained on it
a wash which must be maintained in its current course to comply with applicable
regulations; and
Whereas, to maintain the historic water course, it was required that a culvert be installed
under Meridian Road, a roadway which, in the area of Subdivision, is under the
jurisdiction of County; and
Whereas, said culvert, which has been installed, will require on-going maintenance; and
Whereas, County, through its Department of Transportation (hereinafter referred to as
MCDOT), has accepted responsibility for maintenance of the culvert; and
Whereas, the maintenance of the culvert requires that the culvert be accessed from
property located in Pinal County, which property is owned by the Arizona State Land
Department (hereinafter State Land); and
Whereas, County and Pinal County have entered into an Intergovernmental Agreement
granting permission for County to acquire easement rights for property located in Pinal
County; and
Whereas, County has been in communication with State Land about acquiring the
necessary easement to allow maintenance; and
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Whereas, should State Land agree to grant the necessary easement, a periodic charge
for the use of the property on which the easement is to be located will be required; and
Whereas, County is unwilling to pay for the use of the property on which the easement is
to be located; and
Whereas, the Developer of Subdivision has agreed to pay for the initial term of the
easement; and
Whereas, it is necessary for a continuing entity to assume responsibility and liability for
any and all periodic payments required for the use of the property on which the
easement is to be located: and
Whereas, the HOA has agreed to accept responsibility to make all periodic paymenis
required for the use of the property on which the easement is to be located.
NOW THEREFORE, in consideration of the sum of $10.00, the mutual promises herein
contained, and other good and valuable consideration, the sufficiency and adequacy of
which are acknowledged, the parties agree as follows:
1. The Parties acknowledge the truth and accuracy of the foregoing recitals and
incorporate them herein by this reference.
2. County, through MCDOT, shall maintain, so long as said culvert shall be needed,
the culvert that runs under Meridian Road, all as more fully described on Exhibit
A to this Agreement,.
3. In the event State Land shall require any periodic payment for the continuation of
the easement on State Land necessary to perform the maintenance on the
culvert, HOA shall pay any and all such moneys due to State Land.
4. Developer shall deposit with the State Land Department the sum of Two
thousand five hundred and no/100 ($2,500.00) Doilars, which sum shall use only
for the purpose of paying to State Land any required periodic payment for the
easement on State Land described in this Agreement for the initial ten year term
or to satisfy any conditions State Land may impose upon the easement to be
issued. The check to the State Land Department shali include reference to RAV
Lease #18-118098. In the event the payment for the initial ten (10) year term is
less than Two thousand five hundred and no/100 ($2,500.00) Dollars, upon
receipt of a return of funds from the State Land Department, County shall
transmit such funds received to Developer.
5. Upon receipt of any invoice, bill and/or statement from State Land to County for a
periodic payment for the continuation of the easement on State Land necessary
to perform the maintenance on the culvert, County shall forward same to HOA for
,
payment.
6. Not fewer than thirty (30) days before the due date for any payment due to State
Land for the continuation of the easement on State Land necessary to perform
the maintenance on the culvert, HOA shall make the required payment to State
Land and provide County with proof of such payment.
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in the event State Land shall not provide an invoice, bill and/or statement to
County for the periodic payment due to State Land for the continuation of the
easement on State Land necessary to perform the maintenance on the culvert,
HOA shall, nevertheless, provide proof to County, not fewer than thirty (30) days
before such payment is due, that payment has been made.
in the event any payment due to State Land for the continuation of the easement
on State Land necessary to perform the maintenance on the culvert shall be late
and incur any late charge or penalty, or in the event of any penalty imposed by
State Land for the failure to make the required payment, any and ail such
penalties shall be the sole and exclusive responsibility of HOA.
Developer and/or HOA shall be solely responsible to satisfy any and all
conditions placed on any easement, permit or grant of right issued by State Land.
10. In the event HOA shall fail to make any required payment to State Land as set
forth in this Agreement, then and in such event, County may, but shail not be
obligated to, make said payment. In such event, interest on any payment made
by County otherwise owed by HOA pursuant to this Agreement, shall accrue at
the rate of one (1%) percent per month calculated daily until all such payments
shall have been made, including interest to County. in addition, in the event of
the failure of HOA to make any payment required under this Agreement, County
is hereby authorized to apply, ex parte, to any court of competent jurisdiction for
the imposition of a lien against all real and personal property of HOA, including
all bank account or other accounts containing money. In the event such action is
necessary, County will provide HOA with notice not fewer than thirty (30) days
before such action is filed. Otherwise, HOA waives all other requirements of
notice or presentment prior to the seeking of the lien herein referenced.
11. Upon full execution of this Agreement and the payment by the Developer of the
funds described in Paragraph 4 of this Agreement, MCDOT shail request that the
Maricopa County Board of Supervisors release any and all performance bonds
being held to ensure performance by Developer of all obligations related to
Meridian Road.
12. All notices or communications under this Agreement shall be in writing and
mailed, personally delivered or faxed to the addresses set forth in this
Agreement; copies of all notices to the County shall also be sent to the
Maricopa County Attorney, Civil Services Division, Attn: MCDOT. Any party
may, upon ten (10) days’ prior written notice to the other party as provided
herein, change its address for purposes of notices hereunder.
13. To further the cooperation of the parties in implementing this Agreement, each
shall designate and appoint a representative to act as a liaison between the
County, including its various departments, and HOA. The initial representative
for the County shall be the Director of the Department of Transportation or their
designee. The initial representative for HOA shall be John S. Poulsen.
14. This Agreement is subject to the provisions of A.R.S. § 38-511.
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15. This Agreement shall be governed by and construed under the laws of the State
of Arizona.
16. The Parties represent and warrant that each is duly formed and validly existing
under Arizona laws and that the individuals executing this Agreement on behalf
of their respective Party are authorized and empowered ‘to bind the Party on
whose behalf each such individual is signing.
17. 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.
18. in computing any period of time under this Agreement, the date of the act or
event from which the designated period of time begins to run shall not be
included. The last day of the period so completed shall be included unless it is a
Saturday, Sunday or legal holiday, in which event the period shail run until the
end of the next day which is not a Saturday, Sunday or legal holiday. The time
for performance of any obligation or taking any action under this Agreement shall
be deemed to expire at 5:00 p.m. (Arizona time) on the last day of the applicable
time period provided herein.
19. The Parties agree in good faith to execute such further or additional instruments
and documents and to take such further acts as may be necessary or appropriate
to fully carry out the intent and purpose of this Agreement.
20. The Parties have been represented by counsel in the negotiation and drafting of
this Agreement and this Agreement shall be construed according to the fair
meaning of its language. The rule of construction that ambiguities shall be
resolved against the Party who drafted a provision shall not be employed in
interpreting this Agreement.
21. This Agreement constitutes the entire agreement between the Parties hereto
pertaining to the subject matter hereof. All prior and contemporaneous
agreements, representative and understandings of the Parties, oral or written,
are hereby superseded and merged herein.
22. Time is of the essence pertaining to this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set
forth above.
COUNTY:
MARICOPA COUNTY, an Arizona county
By:
Chairman, Board of Supervisors
ATTEST:
By:
Fran McCarroll, Clerk of the Board
APPROVED AS TO FORM:
By:
Deputy County Attorney
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA
[Affix notary seal here]
NEWCASTLE DEVELOPMENT, LLC
An Arizona Domestic Limited Liability Corporation
By:
John S. Routsen, Co-Manager
ATTEST:
Ul
By: Sa
John S Poulsen II, Co-Manager
STATE OF ARIZONA)
) ss.
County of Maricopa )
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Ss
On this 22 day of e= \y 201¢ John S. Poulsen and John S Poulsen Il,
,
came before me personally appeared , the
of Maricopa County, an Arizona county, for and on behalf thereof, whose identity was proven to
me on the basis of satisfactory evidence to be the person who he or she claims to be, and
acknowledged that he or she signed the above/attached document.
YaL2-—
Notary Public
[Affix notary seal here]
OFFICIAL SEAL KEIGHLEY PLACE COMMUNITY ASSOCIATION,
TOMMIE T. LAMB
Notary Public - Arizona INC.
MARICOPA COUNTY An Arizona Not for Profit Corporation
My Commission Expires
APRIL 16, 2019
~
By:
John
©. PobieghPtesident
ATTEST:
on rene
oye
Tommie Lamb, Secretary
STATE OF ARIZONA )
) ss.
County of Maricopa )
| CERTIFY that on OZ! aA 2015 Tommie Lamb personally came before me and
,
this person acknowledged under oath, to my satisfaction, that:
this person is the secretary of Keighley Place Community Association, Inc., the
corporation named in this document; this person is the attesting witness to the signing of this
document by the proper corporate officer who is John S. Poulsen, the President of the
corporation; this document was signed and delivered by the corporation as its voluntary act duly
authorized by a proper resolution of its Board of Directors; this person knows the proper seal of
the corporation which was affixed to this document; and this persen signed this proof to attest
NOTARY PUBLIC
STATE OF ARIZONA
ae Maricopa County otary Publi
_
My Commission Expires
August 31, 2017
[Affix notary seal here]
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