HomeMy WebLinkAboutRes 2014-10OFFICIAL RECORDS OF
MARICOPA COUNTY RECORDER
HELEN PURCELL
Town of Fountain Hills l 20140090912 02111 /2014 01:51
16705 E. Avenue of the Fountains I
Fountain Hills, Az 85268 I ELECTRONIC RECORDING
Development Services Department i RES1410EASRC- 16- 1 -1 - -, N
I
RESOLUTION NO. 2014-10
THE MAYOR AND COUNCIL OF THE TOWN
OF FOUNTAIN HILLS, ARIZONA,
ACCEPTING AN UTILITY EASEMENT FROM
BUCKEYE WEST LLC, D/B /A SUNRIDGE
CANYON GOLF CLUB
FEBRUARY 6, 2014
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This is part of the official document.
RESOLUTION NO. 2014-10
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS, ARIZONA, ACCEPTING AN UTILITY EASEMENT FROM
BUCKEYE WEST LLC D /B /A SUNRIDGE CANYON GOLF CLUB.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. An utility easement in substantially the form attached hereto as Exhibit 1
and incorporated herein by reference, across certain real property, generally located near the
western edge of the right -of -way for Golden Eagle Boulevard, south of Desert Canyon Drive, is
hereby accepted by the Town of Fountain Hills (the "Town ") from Buckeye West LLC d/b /a
SunRidge Canyon Golf Club.
SECTION 2. The Mayor, the Town Manager, the Town Clerk and the Town Attorney
are hereby authorized and directed to execute all documents and take all steps necessary to carry
out the purpose and intent of this Resolution.
PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills,
February 6, 2014.
FOR THE TOWN OF FOUNTAIN HILLS:
REVIEWED BY:
Kenneth W. Buchanan, Town Manager
2105113.1
ATTESTED TO:
Aw.."m M-A
VED AS TO FORM:
J. McGuire, TdVn Attorney
EXHIBIT 1
TO
RESOLUTION NO. 2014 -10
[Utility Easement Agreement]
See following pages.
2105113.1
When Recorded Mail To:
City Clerk
Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
UTILITY EASEMENT AGREEMENT
GRANTOR: BUCKEYE WEST LLC, an Arizona limited liability company, d/b /a SunRidge
Canyon Golf Club
GRANTEE: TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation
THIS UTILITY EASEMENT AGREEMENT (this "Agreement") is entered into as of the
1 st day of January, 2014 (the "Effective Date "), between BUCKEYE WEST LLC, an Arizona
limited liability company, d/b /a SunRidge Canyon Golf Club ( "Grantor "), and the TOWN OF
FOUNTAIN HILLS, an Arizona municipal corporation ( "Grantee "):
RECITALS
A. Grantor owns certain real property (the "Grantor Property ") in more particularly
described on Exhibit A attached hereto and incorporated herein by reference, through which
Grantee wishes to acquire easements for access, maintenance, operation, and repair and
replacement of certain utility improvements.
B. Grantee owns a certain pump and motor commonly known as Pump #1 that is
within, among other pumps and motors, an existing structure commonly known as the "Pump
House." The Pump House and all existing appurtenances thereto, including, but not limited to,
that certain Electrical Service Panel and Flowtronics Control Panel, are owned by Grantor and
are collectively referred to as the "Existing Improvements." Pump #1 is referred to as "Grantee
Pump." The Grantor Property and the Existing Improvements along with appurtenances thereto
are collectively referred to as the "Property."
C. Grantee desires access in and over a portion of the Property, as described and
depicted on Exhibit B attached hereto and incorporated herein by reference (the "Easement
Area "), to maintain, operate and repair and replace the Pump System (defined in Section 2(A)
below).
D. Grantor desires to grant to Grantee, its contractors, employees and designees, a
non - exclusive, access and maintenance easement (the "Easement') in, to, over, under, through
and across the Easement Area in accordance with the terms of this Agreement.
1543265.9
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by reference and the mutual covenants set forth below, Grantor does hereby grant to the
Grantee this Easement over the Easement Area on the following terms and conditions:
1. Grant of Utility Easement. Grantor hereby grants to Grantee a non - exclusive
utility easement (the "Utility Easement ") in, to, through, on, over, under and across the Easement
Area and appurtenances therein. In consideration of the rights granted to Grantee hereunder,
Grantee shall pay to Grantor the sum of $5,000 per annum, payable within five (5) days after the
Effective Date (the "Easement Fee "), and thereafter annually upon the anniversary of the
Effective Date. Easement Fees shall be payable to the Grantor at the Grantor's address listed in
Section 14 below. The foregoing easement is granted for the sole purposes set forth in this
Agreement.
2. Use of Utility Easements by Grantee. The right to use the Utility Easement shall
belong to Grantee and its agents, employees, designees, contractors and all those acting by or on
behalf of Grantee for the purposes set forth below:
A. Pump System. To install, construct, reconstruct, locate, survey, maintain,
enlarge, alter, repair, replace, use, operate, control, inspect, and remove the Grantee Pump
(collectively, the "Pump System ") in, to, through, on, over, under and across the Easement
Area.
B. Access. To have the right of entry and access including ingress and egress
in, to, through, on, over, under and across the Easement Area, including the Pump House, at any
and all times deemed necessary by Grantee for all purposes consistent with the terms of this
Easement necessary and at all times convenient or necessary to exercise the rights acquired in
the Utility Easement as set forth above.
C. Removal of Obstructions. Except for the Existing Improvements, Grantor
shall reasonably cooperate with Grantee in relocating, trimming, cutting, felling and removing
any material, vegetation, underbrush, trees, structures, obstructions or obstacles located on or
within the Easement Area that cause a material interference to Grantee's use of the Easement
Area.
3. No Interference. Grantor shall not build, construct, erect, install or permit the
building, construction, erection or installation of any structure or obstruction, nor change the
grade on or over the Easement Area, including without limitation, the Pump House, which
interferes with the use of or obstructs the operation of the Utility Easement or access to the
Easement Area based on Grantee's reasonable determination. Grantor shall not plant trees on the
Easement Area without the prior written permission of Grantee, which such permission shall not
be unreasonably withheld, conditioned or delayed. Except for the Existing Improvements, any
structure or obstruction such as a building, fence or mailbox or tree located on the Easement
Area which reasonably interferes with the use of or obstructs the operation of the Utility
Easement or access to the Easement Area may be removed by Grantee without liability for
damages arising therefrom. In the event the terms of this paragraph are violated, such violation
1543265.9 2
shall immediately be eliminated upon receipt by the violating party of written notice from the
other party, as applicable or such other party shall have the immediate right to correct or
eliminate such violation at the sole expense of the violating party, its heirs, successors or assigns,
which shall promptly reimburse such other party for any expense related thereto. Grantor shall
not in any manner interfere with the purposes for which this Utility Easement is conveyed.
4. Maintenance; Utilities.
A. Grantee hereby agrees to maintain the Pump System, in or under the
Easement Area, including those located within the Pump House, at its sole expense. Other
portions of the Easement Area owned by Grantor shall be maintained at its sole expense by
Grantor, its successors or assigns.
B. Whenever a party shall perform any maintenance, repairs and/or
replacements permitted herein, such work shall be done expeditiously and in a good and
workmanlike manner and in accordance with all applicable laws, codes, rules, statutes and
regulations of governmental authorities having jurisdiction thereof. Such work shall be carried
out in such manner so as to cause the least amount of disruption to any operations being
conducted on the surrounding land and the Pump House as is reasonably practicable. Such work
by Grantee or its agents, employees or contractors shall not cause any mechanic's lien or other
lien, charge or order for the payment of money to be filed against any portion of the Grantor
Property, and Grantee, at its own cost and expense, shall cause the same to be discharged of
record or bonded against within thirty (30) days following Grantee's receipt of written notice as
to the filing thereof.
C. Grantee shall be directly responsible for, and shall pay when due, all
charges for utilities utilized by Grantee as described in this Section 4(C). Grantee charges shall
be based on Grantee's usage of utilities. After each billing period, Grantee's usage of utilities
shall be determined and Grantee will pay for the amount that results after multiplying Grantee's
usage of utilities against the then billing period total amount. Grantor shall provide a copy of
the applicable billing period invoice /statement to Grantee before Grantee shall be obligated to
pay for its usage of utilities.
5. Insurance and Indemnity. Grantee shall maintain or cause to be maintained in full
force and effect, a policy of general public liability insurance covering the Easement Area, with a
combined single limit of liability of not less than One Million Dollars ($1,000,000) for bodily
injury or death or property damage arising out of any one occurrence. Grantor shall be listed as
an "additional insured" thereunder. To the extent permitted by law, each party hereby
indemnifies and saves the other party harmless from any and all liability, damage, expense,
causes of action, suits, claims, or judgments arising from personal injury, death, or property
damage and occurring on the Easement Area, except if caused by the act or negligence of the
other party hereto.
6. Assignability. Grantor shall have the right to assign all or any portion of the
rights herein granted. Nothing contained in this Agreement shall be construed as preventing any
sale or other transfer of all or any portion of the Grantor Property by Grantor or any of its
successors and assigns.
1543265.9 3
7. Benefits and Burdens. The benefits and burdens of this Agreement shall be
binding upon and shall inure to the benefit of Grantor, Grantee and their respective heirs,
successors or assigns.
8. Runs with the Land. This Agreement shall run with the Easement Area and shall
be recorded in the Office of the Clerk and Recorder of Maricopa County.
9. Integration. The undersigned agree that neither has made or authorized any
agreement with respect to the subject matter of this Agreement other than as expressly set forth
herein, and no oral representation, promise, or consideration different from the terms herein
contained shall be binding on either party hereto, or its agents or employees.
10. Applicable Law. The terms of this Agreement shall be interpreted and enforced
in accordance with the laws of the State of Arizona.
11. Multiple Counterparts. This Agreement may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an original for all
purposes and all such counterparts shall collectively constitute one Agreement.
12. Construction. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement. The parties hereto, and their respective successors or
assigns, shall not modify the terms of this Agreement or otherwise alter its terms and conditions
without the prior written approval of the other party.
13. Cancellation by Grantee. Notwithstanding anything to contrary contained herein,
this Agreement may be cancelled by Grantee pursuant to Ariz. Rev. Stat. § 38 -511 at which time,
the Easement shall revert back to the Grantor.
14. Notices and Requests. 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
(A) hand delivered to the party at the address set forth below, (B) deposited in the U.S. Mail,
registered or certified, return receipt requested, to the address set forth below or (C) given to a
recognized and reputable overnight delivery service, to the address set forth below:
If to Grantor: Buckeye West LLC
d/b /a SunRidge Canyon Golf Club
13100 N. Sunridge Drive
Fountain Hills, Arizona 85268
Telephone: (480) 837 -5100
Attn: Donald T. Misheff
1543265.9 4
With copy to: Stark & Knoll Co. LPA
3475 Ridgewood Road
Akron, Ohio 44333
Telephone: (330) 376 -3300
Attn: Thomas G. Knoll, Esq.
If to Grantee: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Town Manager
Telephone: (480) 816 -5115
With copy to: GUST ROSENFELD, P.L.C.
One East Washington Street, Suite 1600
Phoenix, Arizona 85004 -2553
Attn: Andrew J. McGuire, Esq.
Telephone: (602) 257 -7664
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the party, (B) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If a
copy of a notice is also given to a party's counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
15. No Public Dedication. It is mutually agreed that the grant contained in this
Agreement is not intended and shall not be construed as a dedication of the real property within
the Easement Area or any portion thereof for public use and that the parties shall take whatever
steps may be necessary to avoid any such dedication.
[SIGNATURES ON FOLLOWING PAGES]
1543265.9
IN WITNESS WHEREOF, Grantor and Grantee have entered into this Agreement as of
the date first written above.
Grantor:
BUCKEYE WEST LLC, an Arizona limited
liability company, d/b /a SunRidge Canyon Golf
Club
By:
Name: Donald T. Misheff
Title: Managing Partner
STATE OF / )
ss.
COUNTY OF ; )
This instrument was acknowledged before me on ( Arun- , 2014, by Donald
T. Misheff, as Managing Partner of Buckeye West LLC, an Arizona limited liability company,
d/b /a SunRidge Canyon Golf Club, on behalf of such company.
Witness my hand and official seal.
My Commission Ex ires:
�t OFFICIAL SEAL
CATHERINE E WHYNOTC \f/
Commicaton p290623
r Notary Public - State of Arvona
MARIC01'A COUN i Y No ary Public
M nonnn. ex llrcU Sr �I. iG 'Ot
1543265.9 6
STATE OF ARIZONA
ss.
COUNTY OF MARICOPA
Grantee:
TOWN OF FOUNTAIN HILLS, an Arizona
municipal corporation
4�ndL.La 6
Kenneth W. Buchanan, Town Manager
ATTEST:
,f
Tj1wn Clerk
(ACKNOWLEDGEMENT)
This instrument was acknowledged before me on i , 2014, by
Kenneth W. Buchanan, the Town Manager of the Town of Fountain Hills an Arizona municipal
corporation, on behalf of the corporation.
Witness my hand and official seal.
My Commission Expires: /(0
s
, :,
1543265.9 7
EXHIBIT A
TO
UTILITY EASEMENT AGREEMENT
BETWEEN
BUCKEYE WEST LLC
AND
THE TOWN OF FOUNTAIN HILLS
[Legal Description and Map of Grantor Property]
See following pages.
1543265.9
Exhibit A -1
SUNRIDGE CANYON FINAL PLAT, PARCEL 7 - GRANTOR PROPERTY
A parcel of land being a portion of Fountain Hills Arizona, Final Plat of Sunridge Canyon, Parcel 7,
as recorded on November 8, 1995 in Book 406, Page 23 of the Records of Maricopa County,
Arizona and situated in Section 9, Township 3 North Range 6 East of the Gila and Salt River Base
and Meridian, Maricopa County, Arizona.
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EXHIBIT B
TO
UTILITY EASEMENT AGREEMENT
BETWEEN
BUCKEYE WEST LLC
AND
THE TOWN OF FOUNTAIN HILLS
[Legal Description and Map of Easement Area]
See following pages.
1543265.9
Exhibit B -1
SUNRIDGE CANYON FINAL PLAT, PARCEL 7 - EASEMENT AREA
A parcel of land being a portion of Fountain Hills Arizona, Final Plat of Sunridge Canyon, Parcel 7,
as recorded on November 8, 1995 in Book 406, Page 23 of the Records of Maricopa County,
Arizona and situated in Section 9, Township 3 North Range 6 East of the Gila and Salt River Base
and Meridian, Maricopa County, Arizona; said parcel being more particularly described as follows:
Commencing at the center line intersection of Golden Eagle Boulevard and Desert Canyon Drive
as recorded in Fountain Hills, Arizona Legal Description for the Dedication of Golden Eagle
Boulevard from Palisades Boulevard to the existing Golden Eagle Boulevard, MCR 1990 - 322388,
said point also being on a curve being concave northeasterly and having a radius of 800.00 feet;
Thence southerly along the arc of said curve through a central angle of 04 degrees 43 minutes 51
seconds an arc length of 66.06 feet;
Thence south 63 degrees 25 minutes 29 seconds west and departing from said centerline, a
distance of 51.00 feet, said point also being on the westerly right -of -way of Golden Eagle
Boulevard, as shown on said Final Plat of Sunridge Canyon;
Thence south 26 degrees 34 minutes 31 seconds east, along said right -of -way, a distance of
513.00 feet, to the TRUE POINT OF BEGINNING;
Thence south 26 degrees 34 minutes 31 seconds east, a distance of 40.00 feet;
Thence south 63 degrees 25 minutes 29 seconds west and departing from said right -of -way, a
distance of 50.00 feet;
Thence north 26 degrees 34 minutes 31 seconds west, a distance of 40.00 feet;
Thence north 63 degrees 25' 29 seconds east, a distance of 50.00 feet to the TRUE POINT OF
BEGINNING: Said easement to provide a minimum distance of 12.00 feet, from the southwest
corner of the existing pump house building, for access purposes.
This easement contains an area of 0.0459 acres more or less
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