2021G002-GENERAL AGREEMENT - CABANA ON POWER - MAINTENANCE.PDF

Maricopa County — Formal (2021-10-20)

Extracted text (via pymupdf) 14444 characters

4835-8529-8926.1
General Agreement FCD 2021G002

Return to:
Flood Control District of Maricopa County
2801 West Durango Street
Phoenix, AZ 85009-6399

MAINTENANCE AGREEMENT
between the
Flood Control District of Maricopa County
and
Cabana on Power, LLC

General Agreement FCD 2021G002

Agenda Item ____________

This Maintenance Agreement (“Agreement”) is made and entered into this ___ day of
__________________, 2021, by and between Cabana on Power, LLC, an Arizona limited liability
company and its successors and assigns (“Cabana”), and the Flood Control District of Maricopa
County, a political subdivision of the State of Arizona (“FCD”).

RECITALS:
A.
Cabana owns and holds title to that certain real property (“Cabana Parcel”) located in the
City of Mesa, Arizona, more particularly described on Exhibit A attached hereto.
B.
The FCD owns and holds title to that certain real property (“FCD Parcel””) more
particularly described on Exhibit B attached hereto.
C.
Cabana and FCD desire: (1) to provide for the maintenance of a wall (“Residential Wall”)
located on the Cabana Parcel near the common boundary of the Cabana Parcel and the FCD Parcel
and maintenance for that certain area located on the Cabana Parcel on and between the Residential
Wall and Cabana’s and FCD’s shared parcel boundary (“Weed Control Area”), and (2) to establish
certain easements, covenants, conditions and restrictions with respect to the Residential Wall for
the mutual and reciprocal benefit of the Cabana Parcel and the FCD Parcel and the present and
future Owners (as defined below) thereof, subject to and in accordance with the terms and
conditions set forth in this Agreement.
AGREEMENT:

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual agreements,
covenants and promises herein contained, and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, in order to impose certain easements upon the
parcels, and to establish certain covenants, conditions and restrictions for the mutual and reciprocal
benefit of the Cabana Parcel and the FCD Parcel and the present and future Owners thereof, the
parties hereto declare, covenant and agree as follows:

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1.
Definitions
(a)
“Owner” or “Owners” shall mean any person or entity who from time to time shall
be the record owner of fee title to any Parcel whether by sale, assignment, inheritance, operation
of law, trustee’s sale, foreclosure or otherwise, but not including the holder of any lien or
encumbrance on such real property or the tenants of such real property (prior to acquisition of fee
title thereto); provided that there shall be only one (1) designated Owner for each Parcel.
(b)
“Permittee(s)” shall mean the tenant(s), subtenant(s), or lawful occupant(s) of each
Parcel, and the employees, agents, contractors, customers, invitees, and licensees of any Owner.
2.
Residential Wall. Cabana shall maintain the Residential Wall owned and maintained by
Cabana near Cabana’s and FCD’s common boundary.
3.
Weed and Vector Control. Cabana shall be responsible for weed and vector control on the
Weed Control Area. The Weed Control Area is the distance from the face of the Residential Wall
to the property line which such distance is one foot (1’). Cabana shall remove any volunteer plants
and trees within the Weed Control Area and be responsible for obtaining any required
environmental permits required to treat the Weed Control Area pursuant to the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) and applicable state statutes.
4.
Insured. Cabana will provide proof of General Liability Insurance, per the current
established minimum limits set by the Maricopa County Risk Management Department, to the
FCD on an annual basis and that the FCD is designated as an additional insured.
5.
Right of Entry.
(a)
Limited Access. Cabana and FCD hereby grant to one another for the use and
benefit of Cabana and FCD and each its Permittees, as an appurtenance to the FCD Parcel and
Cabana Parcel a non-exclusive, perpetual and reciprocal right-of-entry in, upon, over, above, under
and across those portions of the Cabana Parcel and FCD Parcel being adjacent to the common
boundary between said parcels for 1) weed and vector control, and 2) the construction, use,
maintenance, installation, removal and replacement of the Residential Wall in accordance with,
and limited to, the provisions of this Agreement.

FCD grants Cabana access to the FCD Parcel sufficient to perform maintenance work on the
Residential Wall and Weed Control Area by providing written notice to FCD for approval,
minimum two weeks in advance. Notice shall include the scope of work to be performed and
locations of access required and shall be approved by FCD prior to beginning work. Emergency
access may be provided to the FCD’s property by contacting Flood Control District of Maricopa
County, Operations Branch Manager (602-506-1252) for approval. The FCD will provide
notification two weeks in advance to Cabana of FCD maintenance work requiring access within
the Cabana Parcel boundaries to include a scope of work and locations of access required in the
Notification for Emergency access by the FCD to be provided to Cabana. Cabana’s contact for
purposes of notice under this provision, or to other such contact as may be specified in writing
from time to time, shall be as follows:

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General Agreement FCD 2021G002

Cabana on Power, LLC
8135 E. Indian Bend Rd., Suite 101
Scottsdale, AZ 85250
Attention: Dan Richards
Phone: 480-850-2030

(b)
FCD Inspections. The FCD shall have the right to inspect the Weed Control Area
and FCD’s side of the Residential Wall to ensure compliance with items #2 and #3 of this
Agreement quarterly, annually, and during or after significant storms to ensure that Cabana is
performing its maintenance obligations described in items #2 and #3 of this Agreement. If the
FCD reasonably determines that Cabana is not performing its obligations under this Agreement,
then the FCD shall give written notice of such failure to Cabana and Cabana shall correct such
condition within 30 days after its receipt of such notice. If Cabana fails to do so, the FCD shall
have the right (but not the obligation) to perform the maintenance obligations, and all actual costs
and expenses, thereof, shall be repaid by Cabana to FCD within 30 days after the receipt of an
invoice thereof. Cabana shall not be in default unless it fails to remedy a breach within such 30-
day period.

(c)
Reasonable Use of Property. The right-of-entry granted in this Agreement shall be
used and enjoyed by each Cabana and FCD and each of its respective Permittees in such a manner
as not to unreasonably interfere with the use of the other of its Cabana Parcel or FCD Parcel.

(d)
No Implied Easements. Nothing contained in this Agreement shall be deemed to
create any implied easements not otherwise expressly provided for herein.
(e)
Notices. All notices, consents, approvals, and waivers made or given by the FCD
or Cabana in connection with this Agreement must be in writing to be effective. All notices
required to be given hereunder or by operation of law in connection with the performance or
enforcement hereof shall be deemed given upon delivery if delivered personally (which includes
notices delivered by messenger, telecopy [including telephone facsimile] or overnight courier) or,
if delivered by mail, shall be deemed given after being deposited by certified mail in any duly
authorized United States mail depository, postage pre-paid. All such notices shall be addressed as
follows or to such other address or addresses as the parties may from time to time specify in writing
delivered as provided in this Section.

If to FCD:

Flood Control District of Maricopa County

2801 W. Durango Street

Phoenix, Arizona 85009

Attention: Operations Branch Manager

If to Cabana:
Cabana on Power, LLC
8135 E. Indian Bend Rd., Suite 101
Scottsdale, AZ 85250
Attention: Dan Richards

6.
Construction. This Agreement shall be governed by and constructed in accordance with
the substantive law of the State of Arizona.

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General Agreement FCD 2021G002

7.
Remedies. Each party hereto shall have the right to enforce the obligations and covenants
of the other party hereto under this Agreement or in any other manner available at law or in equity.
8.
Attorney Fees. In the event any action is brought to enforce the provisions of this
Agreement, the prevailing party shall be entitled to reimbursement of all costs and attorneys fees
incurred in such action.
9.
Successors and Assigns. All of the provisions of this Agreement shall inure to the benefit
of and be binding upon the successors and assigns of the parties hereto.
10.
Amendment. This Agreement may be amended only by a written instrument signed by the
parties hereto. The amendment or termination shall be effective at the time it is recorded, unless
a later effective date is stated in the amendment or termination.
11.
Termination. This Agreement shall terminate upon mutual agreement of all Parties.
12.
No Third Party Beneficiaries. No person or entity shall be a third party or other beneficiary
of any portion of Agreement or in this Agreement, except only FCD and Cabana.
This Agreement is subject to cancelation pursuant to A.R.S. § 38-511.
The undersigned have caused this Agreement to be executed as of the Effective Date.
[Signatures on following page]

DocuSign Envelope ID: 55353ACF-463D-42C2-BFD2-5F027094B3BA
9/22/2021
9/22/2021

4835-8529-8926.1
General Agreement FCD 2021G002

EXHIBIT A

LEGAL DESCRIPTION OF THE CABANA PARCEL

4835-8529-8926.1
General Agreement FCD 2021G002

EXHIBIT B

LEGAL DESCRIPTION OF THE FCD PARCEL

That part of the Northeast quarter of the Northeast quarter of Section 36, Township 1 South, Range 6
East of the Gila and
Salt River Base and Meridian, Maricopa County, Arizona, described in the below 3 parcels of land:

PARCEL NO. 1:
Beginning on the East line of said Section at a point South 00 degrees 52 minutes 18 seconds East,
265.00 feet from the
Northeast corner of said Section 36, the TRUE POINT OF BEGINNING;
thence along said line South 00 degrees 52 minutes 18 seconds East, 266.17 feet to a point;
thence South 57 degrees 55 minutes 44 seconds West, 626.10 feet to a point on the Easterly right of
way line of Power Road,
said point being 55.00 feet measured radially from the center line of said right of way;
thence along said Easterly right of way line on a non-tangent curve concaved Northeasterly, having a
radius of 1377.31 feet, a
central angle of 08 degrees 05 minutes 36 seconds and an initial tangent bearing of North 23 degrees 19
minutes 08 seconds West 194.55 feet to a point;
thence North 45 degrees 20 minutes 55 seconds East, 346.31 feet to the beginning point of a curve
concaved Northwesterly, having a radius of 558.59 feet, a central angle of 45 degrees 50 minutes 25
seconds and tangent of 236.19 feet;
thence along the arc of said curve 446.91 feet to the point of tangent of said curve on the South line of
the North 33.00 feet of said Section being also the South line of Williams Field Road;
thence along said right of way line and parallel to the North line of said Section, North 89 degrees 30
minutes 30 seconds East, 48.77 feet to a point on the West line of the East 126 feet of said Section;
thence along said line and parallel to the east line of said Section South 00 degrees 52 minute 18
seconds East 232.00 feet to a point;
thence North 89 degrees 30 minutes 30 seconds East and parallel to the North line of said Section
126.00 feet to the TRUE POINT OF BEGINNING;
PARCEL NO. 2:
Beginning on the East line of said Section at a point South 00 degrees 52 minutes 18 seconds East 265.00
feet from the Northeast corner of said Section 36;
thence along said line South 00 degrees 52 minutes 18 seconds East, 266.17 feet to a point;

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General Agreement FCD 2021G002

thence South 57 degrees 55 minutes 44 seconds West, 626.10 feet to a point on the Easterly right of
way line of Power Road, said point being 55.00 feet measured radially from the center line of said right
of way;
thence along said Easterly right of way line on a non-tangent curve concaved Northeasterly, having a
radius of 1377.31 feet, a
central angle of 08 degrees 05 minutes 36 seconds and an initial tangent bearing of North 23 degrees 19
minutes 08 seconds West, 194.55 feet to a point, the TRUE POINT OF BEGINNING;
thence continuing along said Easterly right of way line on a non-tangent curve concaved Northeasterly,
having a radius of 1377.31 feet, a central angle of 01 degrees 57 minutes 18 seconds and an initial
tangent bearing of North 15 degrees 13 minutes 32 seconds West 47.00 feet to a point on the Easterly
right of way line of the existing Roosevelt Water Conservation
District Floodwater Channel, said point being 50.00 feet measured radially from the center line of said
right of way;
thence along said Easterly right of way line on a non-tangent curve concaved Northwesterly, having a
radius of 935.95 feet, a
central angle of 22 degrees 11 minutes 46 seconds and an initial tangent bearing of North 42 degrees 40
minutes 16 seconds East, 362.58 feet to a point of tangency;
thence continuing along said right of way line of North 20 degrees 28 minutes 30 seconds East 311.63
feet to a point on the South line of the North 33.00 feet of said Section being also the South line of
Williams Field Road;
thence along said right of way line and parallel to the North line of said Section North 89 degrees 30
minutes 30 seconds East
126.27 feet to the beginning point of a curve concaved Northwesterly, having a radius of 538.59, a
central angle of 45 degrees 50 minutes 25 seconds and tangent of 236.19 feet;
thence along the arc of said curve 446.91 feet to the point of tangent of said curve;
thence South 45 degrees 20 minutes 55 seconds West, 346.31 feet to the TRUE POINT OF BEGINNING.

4835-8529-8926.1
General Agreement FCD 2021G002