HomeMy WebLinkAboutResolution 2011-092 san lucas floodwall maintenance and ingress - egress easement MARANA RESOLUTION NO. 2011-92
RELATING TO FLOODPLAIN MANAGEMENT; APPROVING AND AUTHORIZING THE
MAYOR TO EXECUTE THE SAN LUCAS FLOODWALL MAINTENANCE AND INGRESS -
EGRESS EASEMENT AGREEMENT; AND ADOPTING THE OPERATION, MAINTENANCE,
AND REPAIR MANUAL FOR SAN LUCAS FLOODWALL
WHEREAS the Marana Strategic Plan's Community Building focus area includes an
initiative to ensure that engineering and design solutions are implemented to protect (mitigate)
businesses and residents from flood events; and
WHEREAS the Federal Emergency Management Agency (FEMA) created draft revised
floodplain maps for the area that includes San Lucas in September 2007; and
WHEREAS the San Lucas re- mapping placed portions of San Lucas into a FEMA special
flood hazard area effective June 16, 2011; and
WHEREAS a 2010 FEMA Conditional Letter of Map Revision commits FEMA to remove
San Lucas from the special flood hazard area after a floodwall is constructed along the north and east
boundaries of San Lucas and a maintenance agreement is in place, committing the Town to maintain
the floodwall; and
WHEREAS removal of San Lucas from the FEMA special flood hazard area will reduce
flood insurance rates in and improve marketability of San Lucas; and
WHEREAS federal regulations require a governmental entity to adopt and carry out an
operation and maintenance plan for the floodwall before it can be recognized as a permanent flood
control feature; and
WHEREAS the proposed floodwall maintenance agreement requires the homeowners'
association of San Lucas to fund the Town's maintenance and repair obligations for as long as the
floodwall is needed to keep San Lucas out of the FEMA special flood hazard area and grants the
easements necessary for those maintenance and repair activities to be accomplished; and
WHEREAS the Mayor and Council find that the best interests of the Town of Marana and its
citizens are served by the approval and execution of the agreement between the Town, the San Lucas
developer, and the San Lucas homeowners' association for maintenance of the floodwall.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, as follows:
SECTION 1. The "San Lucas Floodwall Maintenance and Ingress- Egress Easement
Agreement" between and among the Town of Marana, Fidelity National Title Agency, Inc., as
Trustee under Trust No. 60,365, and San Lucas Homeowners Association, attached to and
Marana Resolution No. 2011 -92 - 1 - 100027662.130C / 21
incorporated by this reference in this resolution as Exhibit A, is hereby approved, the Mayor is
hereby authorized and directed to execute it for and on behalf of the Town of Marana, and the
Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks
required or beneficial to carry out the terms, obligations, and objectives of the agreement.
SECTION 2. The Town officially adopts the "Operation, Maintenance, and Repair Manual
for San Lucas Floodwall," attached as Exhibit A to the San Lucas Floodwall Maintenance and
Ingress- Egress Easement Agreement and incorporated here by this reference.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 20'' day of September, 2011.
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Maram Resolution No. 2011 -92 - 2 - 1 000Z7662.DOC / 2)
F. ANN RODRIGUEZ, RECORDER IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
Recorded By: BRC
DEPUTY RECORDER of I
4886 �� SEQUENCE: 201.12800059
NO. PAGES: 22
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SMARA
AG 1 11 0/07/20
TOWN OF MARANA �`l' �'`�'
TOWN CLERK `9kIZ01`ZQ' 10:38
11555 W CIVIC CENTER DR MAIL AMOUNT PAID: $16.50
MARANA AZ 85653
SAN LUCAS FLOODWALL MAINTENANCE AND INGRESS- EGRESS
EASEMENT AGREEMENT
THIS AGREEMENT is entered into by and between the TOWN OF MARANA, an Arizona
municipal corporation ( "Marana "), FIDELITY NATIONAL TITLE AGENCY, INC., an Arizona
corporation, as Trustee under Trust No. 60,365 (the "Owner'), and SAN LUCAS
HOMEOWNERS ASSOCIATION, an Arizona non - profit corporation ( "San Lucas HOA ").
Marana, the Owner, and San Lucas HOA are sometimes collectively referred to in this
Agreement as the Parties, any one of which is sometimes individually referred to as a
Party.
RECITALS
A. San Lucas is a development located in the north part of the Town of Marana and
depicted in the master block subdivision plat of San Lucas recorded in the Pima
County, Arizona, Recorder's office at Book 57 of Maps and Plats, Page 55.
B. In September 2007, the Federal Emergency Management Administration (FEMA)
created draft revised floodplain maps (the "Remapping ") for the area that includes San
Lucas.
C. The Remapping resulted in portions of San Lucas being placed into a FEMA spe-
cial flood hazard area effective June 16, 2011.
D. On June 30, 2010, FEMA issued a Conditional Letter of Map Revision which
commits FEMA to issue a final Letter of Map Revision that will remove the remainder
of San Lucas from the FEMA special flood hazard area upon, among other things, the
construction and maintenance of a floodwall along the north and east boundaries of San
Lucas (the "Floodwall").
E. Removal of San Lucas from the FEMA special flood hazard area will reduce flood
insurance rates in and improve marketability of the affected areas of San Lucas.
F. For the Floodwall to be recognized as a permanent flood control feature, federal
regulations (44 CFR § 65.10 (c) and (d)) require a governmental entity to adopt and
carry out an operation and maintenance plan for the Floodwall.
G. Marana is willing to maintain the Floodwall and to adopt and carry out the op-
eration and maintenance plan for the Floodwall entitled "Operation, Maintenance, and
Repair Manual for San Lucas Floodwall" attached to and incorporated by reference in
this agreement as Exhibit A pursuant to the terms of this Agreement.
H. The portion of the Floodwall located along the north boundary of San Lucas is
being constructed on properties currently owned by the Owner and San Lucas HOA.
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I. The portion of the Floodwall located along the east boundary of San Lucas is being
constructed within the public right -of -way of Postvale Road owned by Marana.
J. In anticipation of entering into this Agreement, the Owner has begun, and has
now nearly completed, construction of the Floodwall.
K. In anticipation of entering into this Agreement, Marana has entered into a Right
of Way agreement with the Arizona State Land Department (the "ASLD Right of Way')
for an access and maintenance right -of -way adjacent to the portion of the Floodwall
located along the north boundary of San Lucas. The ASLD Right of Way is attached to
and incorporated by reference in this agreement as Exhibit B.
AGREEMENT
NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the
intention of the Parties in entering into this Agreement, and in consideration of the
terms of this Agreement, the Parties hereby agree as follows:
1. Construction of the Floodwall. The Owner shall pay for and complete the construc-
tion of the Floodwall in accordance with the "Floodwall Plans for San Lucas, prepared
by PSOMAS dated October 2009 and approved by Marana.
2. Ownership of the Floodwall. When construction of the Floodwall is completed, the
Owner shall own the portion of the Floodwall located on the properties where the
eaements granted in paragraph 4 below are located, San Lucas HOA shall own the
portion of the Floodwall located on the properties where the easements granted by
paragraph 5 below are located, and the portion of the Floodwall located within the
public right -of -way shall be owned by Marana.
3. Establishment of the Account.
A. San Lucas HOA shall establish a reserve account ( "the Account ") with a lend-
ing institution approved by Marana.
B. Marana shall be named as co -owner of the Account with a right to withdraw
any and all funds in the Account in accordance with the terms of this Agreement.
C. The Owner (while the Owner is a Party; see paragraph 23 below) and San Lu-
cas HOA shall be jointly and severally responsible to fund the Account with annual
payments of $2,500. The first annual payment shall be made on or before January 1,
2012, and future payments shall be made on January 1 of each successive year until
the balance in the Account reaches the Account Cap (see subparagraph E below).
D. Once the balance in the Account reaches the Account Cap, the Owner (while
the Owner is a Party; see paragraph 23 below) and San Lucas HOA shall be jointly
and severally responsible to make an annual payment on January 1 of each year, in
an amount not exceeding $2,500, sufficient to build toward or maintain a balance in
the Account equal to the Account Cap.
E. The "Account Cap" shall be $25,000, adjusted by the Marana Town Engineer
according to'the Engineering News Record 20 City Construction Cost Index (or, if it
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ceases to be published, some comparable index mutually acceptable to the Parties)
on July 1 of each year this Agreement is in force.
F. If the Account balance is insufficient to cover costs Marana is authorized to
pay out of the Account, the Owner (while the Owner is a Party; see paragraph 23 be-
low) and San Lucas HOA shall be jointly and severally responsible to immediately
transfer funds directly to Marana in an amount sufficient to pay the costs.
4. Grant of Easement by the Owner. Subject to the terms and conditions set forth in
paragraph 6 below, the Owner, on its own behalf as the owner and on behalf of its suc-
cessors and assigns, hereby grants to Marana an ingress - egress and maintenance ease-
ment over and across the following properties:
A. The northerly ten feet of those certain subdivided residential lots located in
the Town of Marana, Pima County, Arizona, more particularly described as Lots 269
through 284 of San Lucas Blocks 3 and 4, a subdivision recorded in the Pima County,
Arizona, Recorder's office at Book 60 of Maps and Plats at Page 77.
B. That portion of common area "A" of San Lucas Blocks 3 and 4 located east of
lots 284 and 285 of San Lucas Blocks 3 and 4.
C. The northerly ten feet of that portion of common area "B" of San Lucas Blocks
3 and 4 located between lots 271 and 272 of San Lucas Blocks 3 and 4.
D. The northerly ten feet of that portion of common area "B" of San Lucas Blocks
3 and 4 located between lot 269 and the west boundary of San Lucas Block 3 as de-
picted in the master block subdivision plat of San Lucas recorded in the Pima
County, Arizona, Recorder's office at Book 57 of Maps and Plats, Page 55.
5. Grant of Easement by San Lucas HOA. Subject to the terms and conditions set forth
in paragraph 6 below, San Lucas HOA, on its own behalf as the owner and on behalf of
its successors and assigns, hereby grants to Marana an ingress- egress and maintenance
easement over and across the northerly ten feet of that portion of common area "B" of
San Lucas Block 2, a subdivision recorded in the Pima County, Arizona, Recorder's
office at Book 60 of Maps and Plats at Page 76, located between lot 23 and the east
boundary of San Lucas Block 2.
6. Terms and Conditions of Easements. Each easement granted by paragraphs 4 and 5
above is subject to the following terms and conditions:
A. The easement is non - exclusive.
B. The purpose of the easement is for the inspection, maintenance and recon-
struction of the Floodwall.
C. Marana. may exercise its right to enter upon the easement and inspect, main-
tain and reconstruct the Floodwall upon reasonable prior notice to the owner of the
property where the Floodwall inspection, maintenance or reconstruction will occur.
D. Marana's rights shall not extinguish or d iminis h the Owner's or San Lucas
HOA's obligations, as "Owners" under the "Amended and Restated Master Declara-
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tion of Covenants, Conditions, and Restrictions of San Lucas' recorded in Docket
12756 at Page 582, Pima County Records, as amended (the "CC &Rs "), to maintain or
reconstruct the Floodwall as provided in the CC &Rs.
E. Marana agrees to pay, defend, indemnify, and hold the Owner and San Lucas
HOA and their successors and assigns, harmless from any liability, obligation, ac-
tion, suit, judgment, fine, award, loss, claim, demand, or expense (including attor-
neys' fees) arising from any act or omission of Marana, Marana's agents and em-
ployees, and any independent contractor whose services are retained by Marana, in
connection with any entry onto the easements granted by paragraphs 4 and 5 above
for inspection or maintenance of the Floodwall conducted pursuant to the provi-
sions of this Agreement.
F. Any work by Marana on the Floodwall shall be performed in a good and
workmanlike manner.
G. Promptly after the completion of work on the Floodwall, Marana shall return
the underlying property to substantially the same condition as prior to Marana's en-
try.
H. Nothing in this Agreement shall be deemed to be a gift or dedication of any
portion of the easement area, or any portion of it, to the general public, for the gen-
eral public, or for any public use or purpose whatsoever, it being the intention and
understanding that this easement shall be strictly limited to and for the purposes
expressed in this Agreement.
7. Marana's Rights and Obligations. During the term of this Agreement, Marana shall:
A. Keep in force the ASLD Right of Way and extend its term as necessary to
comply with the requirements of this Agreement.
B. Use funds from the Account to pay for all payments, costs and charges due
under the ASLD Right of Way and to extend the term of the ASLD Right of Way.
C. Inspect and maintain the Floodwall according to the schedules included in the
"Operation, Maintenance, and Repair Manual for San Lucas Floodwall" attached to
and incorporated by reference in this agreement as Exhibit A.
D. Use the funds from the Account to pay all costs to inspect and maintain the
Floodwall according to the schedules included in the "Operation, Maintenance, and
Repair Manual for San Lucas Floodwall" attached to and incorporated by reference
in this agreement as Exhibit A and to restore the underlying property as required by
this Agreement, unless insurance proceeds are made available to Marana to pay for
repairs in accordance with paragraph 9 below.
E. Prepare and make available to FEMA upon request an annual inspection re-
port for the Floodwall.
F. Use the funds from the Account to pay all costs to prepare and make available
to FEMA the annual inspection report for the Floodwall.
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8. Term and Termination. Unless terminated by mutual agreement of the Parties, this
Agreement shall remain in effect until the Floodwall no longer serves the function of
removing San Lucas from the FEMA special flood hazard area. Upon termination of this
Agreement:
A. Marana may use any and all funds remaining in the Account to pay all costs
to demolish and remove the portion of the Floodwall located within the public right -
of -way of Postvale Road. If Marana chooses to leave in place the portion of the
Floodwall located within the public right -of -way of Postvale Road, Marana shall
thereafter assume sole responsibility for that portion of the Floodwall.
B. Marana may terminate the ASLD Right of Way and shall cease using the Ac-
count to pay costs associated with the ASLD Right of Way.
C. San Lucas HOA shall assume sole responsibility for the portion of the Flood-
wall located on the properties where the easements granted by paragraphs 4 and 5
above are located.
D. After withdrawing funds to pay costs to demolish and remove the portion of
the Floodwall located within the public right -of -way of Postvale Road and to pay
any costs associated with the ASLD Right of Way outstanding as of the date of ter-
mination of this Agreement, Marana shall release its interest in the Account and any
remaining funds shall become the sole property of San Lucas HOA to be used at its
discretion.
9. Insurance. The Owner or San Lucas HOA may, at their own cost, obtain insurance
coverage for the Floodwall, any proceeds of which may, at the option of the purchaser
of the insurance coverage, be used by Marana to pay for repairs to the Floodwall in lieu
of the funds in the Account.
10. Indemnification.
A. The Owner shall indemnify, defend and hold harmless Marana, its depart-
ments, officers, employees and agents from, for, and against any and all claims,
suits, actions, legal proceedings, administrative proceedings, demands, losses or ex-
penes, including reasonable attorney's fees, which are attributable to any negligent
or intentional act or omission done in furtherance of the provision of the Agree-
ment of the Owner, its employees, agents, subcontractors, volunteers or anyone act-
ing under the direction or control or on behalf of the Owner or anyone employed by
them.
B. San Lucas . HOA shall indemnify, defend and hold harmless Marana, its de-
partments, officers, employees and agents from, for, and against any and all claims,
suits, actions, legal proceedings, administrative proceedings, demands, losses or ex-
penes, including reasonable attorney's fees, which are attributable to any negligent
or intentional act or omission done in furtherance of the provisions of the Agree-
ment of San Lucas HOA, its employees, agents, subcontractors, volunteers or any
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one acting under the direction or control or on behalf of San Lucas HOA or anyone
employed by them.
11. Notices. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed given if personally delivered or
mailed, certified mail, return receipt requested; to the following addresses:
If to Marana, to: Town Engineer
Town of Marana
11555 W. Civic Center Drive - Bldg A3
Marana AZ 85653
If to the Owner, to: Fidelity National Title Agency, Inc.,
as Trustee under Trust No. 60,365
6245 E. Broadway Blvd., Suite 200
Tucson AZ 85711
If to San Lucas HOA, to: San Lucas Homeowners Association
c/o Lewis Management Resources
180 West Magee Road, Suite 134
Tucson AZ 85704
12. No Waiver of Strict Performance. The failure of the Parties to insist upon a strict
performance of any of the agreements, terms, covenants and conditions of this Agree-
ment shall not be deemed a waiver of any rights or remedies that the Parties may have
and shall not be deemed a waiver of any subsequent breach or default in any of such
agreements, terms, covenants and conditions.
13. Authority to Execute Agreement. The individuals executing this Agreement hereby
represent that they have full right, power, and authority to execute this Agreement on
behalf of their respective Party.
14. Entire Agreement. This Agreement constitutes the entire agreement and under-
standing of the Parties pertaining to the subject matter of the Agreement and super-
sedes all offers, negotiations, and other agreements of any kind. All prior and contem-
poraneous agreements, representations and understandings of the Parties, oral or writ-
ten, are superseded and merged in this Agreement. There are no representations or
understandings of any kind not set forth in this Agreement.
15. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of Arizona.
16. Exhibits. Exhibits attached to this Agreement shall be deemed to have been in-
corporated in this Agreement by this reference with the same force and effect as if fully
set forth in the body of this Agreement
17. Recordation. This Agreement shall be recorded in its entirety in the official re-
cords of Pima County, Arizona.
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18. Amendments. This Agreement shall not be amended except by a written agree-
ment executed by all of the Parties and recorded in the official records of Pima County,
Arizona.
19. Force Majeure. Notwithstanding any other term, condition or provision of this
Agreement to the contrary, if any Party to this Agreement is precluded from satisfying
or fulfilling any duty or obligation imposed upon it due to labor strikes, material short-
ages, war, civil disturbances, weather conditions, natural disasters, acts of God, or other
events beyond the control of that Party, the time period provided herein for the per-
formance by that Party of such duty or obligation shall be extended for a period equal
to the delay occasioned by those events.
20. Attorneys' Fees. If any Party brings any civil action to enforce or terminate this
Agreement or to recover damages for the breach of any of the provisions, covenants or
terms of this Agreement on the part of another Party, the prevailing Party shall be enti-
tled to recover, in addition to any relief to which the prevailing Party may be entitled,
all costs, expenses and reasonable attorneys' fees incurred in connection with the civil
action.
21. 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. The signature pages from one or more counterparts may be re-
moved from such counterparts and such signature pages all attached to a single instru-
ment so that the signatures of all Parties may be physically attached to a single docu-
ment.
22. Effective Date. This Agreement is effective when it has been fully executed on be-
half of all of the Parties.
23. Transfer of the Owner's Interest. The Owner shall cease to be a Party, and all of the
Owner's rights and responsibilities under this Agreement shall be deemed transferred
to and deemed assumed by San Lucas HOA, when the Owner conveys title to common
areas in San Lucas Blocks 3 and 4 to San Lucas HOA in accordance with the terms and
conditions of the CC &Rs and the Owner provides to Marana written notice of the trans-
fer.
24. Conflict of Interest. This Agreement is subject to A.R.S. § 38 511, which provides
for cancellation of contracts in certain instances involving conflicts of interest.
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IN WITNESS WHEREOF, the Parties have duly executed this instrument below.
"MARANA'' The "OWNER"
TOWN OF MA A FIDELITY NATIONAL TITLE AGENCY, INC.,
an A ' ona corporation, as Trustee
user rust No. 60,365 ,4Wb
Ed Hon &K4 o , . 4Ai Y '
Date:
ATTEST: [Print Name & Title]
Date: 9 /3• /�
elyn B nson, Town Clerk "SAN L UCAS HOA"
SAN LUCAS HOMEOWNERS ASSOCIATION,
APPRO D A TO FORM: an Arizona non - profit corporation
ank ssidy, To ttorney B R , ?7f pwi 4- s
[Print Name & Title]
Date:
STATE OF ARIZONA )
County of Pima )
This instrument was acknowledged before me this /.jam day of
4 f4 rfwZjft- , 2011 by / tr/f 1-11144 , the Trust Officer of FIDELITY
NATIONAL TITLE AGENCY, as Trustee under Trust No. 60,365.
(Notary se 1) ,� OFFICIAL SEAL
RITA L. KIPPES i
►- NOTARY PUBLIC - ARIZONA Notary Public
PIMA COUNTY
STATE OFIAR AMX CO m. Exp. May 9, 2014
County of Pima )
This instrument was acknowledged before me this / day of
2011 by A & o0&Z1AWt,5 , the 0 ,ikXS10.6V7 -
of and SAN LUCAS HOMEOWNERS ASSOCIATION, an Arizona non - profit corporation, on
behalf of the corporatinn
OFFICIAL SEAL
- %ARTHA L. HILL
NOTARY PUBLIC-ARIZONA
• PIMA COUNTY Notary Public
a kl, e r"o
��- „.amm. Exp. Aug. 27, 2013
100023416.DOC / 5} SAN LUCAS FLooDwALL AGREEMENT 9/2/201110:56 AM FJC /CH
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LIST OF EXHIBITS
Exhibit A. Operation, Maintenance, and Repair Manual for San Lucas
Floodwall
Exhibit B. Marana lease agreement with the Arizona State Land Department
for an access and maintenance easement adjacent to the portion of
the Floodwall located along the north boundary of San Lucas
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OPERATION, MAINTENANCE, AND REPAIR MANUAL FOR
SAN LUCAS FLOODWALL
AUTHORPTYAND PURPOSE
This manual has been prepared pursuant to the Code of Federal Regulations, Ti-
tle 44, §65.10 (c) and (d), which mandates operation plans for levees to be recognized
by the National Flood Insurance Program which is administered by the Federal Emer-
gency Management Agency (FEMA). A floodwall is being designed to protect portions
of the San Lucas subdivision in Marana, Arizona.
LOCATION
The San Lucas subdivision is located east of the Marana Road exit on Interstate 10 in
Marana. The floodwalls being proposed are for portions of the north and eastern
boundaries of the subdivision. Cochie Canyon Road bisects the floodwall system. As
part of the floodwall project, Cochie Canyon Road will be raised to form a barrier itself
to sheet flooding. Scour protection will be provided as a means to tie the two flood -
walls together beneath Cochie Canyon Road.
FLOODING HISTORY
The San Lucas subdivision area was mapped as floodplain in the Pima County FIRM
dated February 8, 1999. Subsequently, a Letter of Map Revision was secured for the area
on May 23, 2003 removing it from the floodplain due to the presence of the Central
Arizona Project (CAP) dike. In 2007, FEMA required non -levee embankments to be
studied more stringently for their capability to withstand a base flood event. As a result
of this requirement, the Town of Marana commissioned the Tortolita Alluvial Fan study
to among other things determine the flood runoff at this location and the capability of
the CAP dike to withstand it. The study confirmed the "with" condition of the CAP
dike from the prior LOMR but due to the large amount of impoundment against the
dike did not certify it north of Cochie Canyon Road. As a result of this, a breach sce-
nario was modeled to determine the flooding impact of a failed CAP dike. Portions of
San Lucas were shown to be special flood hazard area due to a CAP breach. A floodwall
has been designed to protect those areas of San Lucas and a Conditional Letter of Map
Revision (CLOMR) is being sought for the condition of a floodwall protecting San Lucas
from a CAP dike breach. Due to the compounding nature of risks involved to create a
flood in San Lucas (base flood event on the Tortolita Fan, actual failure of the CAP dike,
overwhelming of the CAP canal capacity to carry breached water) the floodwall is con-
sidered a non- critical flood protection infrastructure.
MAINTENANCE PLAN FOR SAN L UCAS FLOODWALL
The Town of Marana will provide the maintenance of the San Lucas Floodwall.
Maintenance inspection shall consist of annual inspections of and inspection reports for
the San Lucas Floodwall. The Town Engineer is to assign an inspector to routinely
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EXHIBIT A TO SAN LUCAS FLOODWALL AGREEMENT
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monitor the condition of the Floodwall. These inspections must assess the following
items:
a. Closures. All flap gates lap -gates are to be inspected. Hinges must be functional
and the inlet and outlet must be free of debris and excessive sediment. The seats
on the flap gates must seal.
b. Interior drainage. The interior or "landside" of the floodwall is to be inspected for
evidence of ponding, settling and piping /seepage. Any erosion which impacts
the foundation of the floodwall is considered a high maintenance priority.
c. Aggradation and freeboard. The area adjacent to the floodwall may be susceptible
to aggradation under certain flow conditions. The inspector is to check the condi-
tions of the natural desert on the "waterside" of the floodwall to determine if
surveys are needed to assess the need for the removal of excessive sediment. Un-
der no circumstances should aggradation reduce the freeboard requirements for
levees as outlined in meet or exceed the National Flood Insurance Program
Regulation (44 CFR Ch. §65.10(b)(1)).
d. Erosion. The floodwall contains a scour protection toewall to protect its founda-
tion. The inspector is to check the conditions of the natural desert on the "'water-
side" of the floodwall to determine if significant erosion has caused the natural
grade to be lower than the wall is designed for. Any areas of erosion are to be
brought to the attention of the Town Engineer to determine if maintenance is
warranted. Any erosion which impacts the foundation of the floodwall is consid-
ered a high maintenance priority.
e. Floodwall stability (slumping, rotation, settling). The inspector is to examine the
floodwall for signs of slumping, rotation, or settling. Any signs of foundation in-
stability are to be brought to the attention of Town Engineer for further analysis
and survey. Sections of wall found to be showing signs of instability are to be
examined fully during non -flood season and repaired/ replaced.
f. Excessive debris. The inspector is to monitor the amount of debris along the
floodwall and at flap gates. Not all debris is to be considered a maintenance issue
as the floodwall is not protecting against a channel
g. Access. The inspector is to report on whether the entire floodwall perimeter is
driveable. Areas deemed to restrict access are to be cleared by coordinating with
operations and maintenance.
h. Vandalism. Vandalism is to be reported to the Marana Police Department. Van -
dalism to sensitive drainage infrastructure, such as flap gates, should be investi-
gated aggressively.
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EXI -UBIT A TO SAN LUCAS FLOODWALL AGREEMENT
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i
1
' STATE LAND DEPARTMENT
STATE OF ARIZONA
Right of Way
R/W No. 18-114457
THIS RIGHT OF WAY ( "Right of Way ") is entered into by and between the State
of Arizona (as "Grantor ") by and through the Arizona State Land Department and
TOWN OF MARANA
"Grantee"). In consideration of payment and performance by the parties of each of the
provisions set forth herein, the parties agree as follows:
EXTENT OF DOCUMENT
"Additional Conditions ", "Exhibits ", and "Appendixes" are an integral part of this
document. In case of a conflict between the printed boiler document and the additional
conditions, exhibits, or appendixes, the 'applicable additional condition, exhibit, or
appendix shall be considered the governing document and supersede the printed'boiler, but
only to the extent necessary to implement the additional condition, exhibit, or appendix,
and only if the additional condition, exhibit, or appendix does not conflict with governing
state or federal law.
ARTICLE 1
SUBJECT LAND
1.1 Grantor grants to. Grantee a Right of Way on, over, through, and across the
State lands described in Appendix A attached hereto ( "Subject Land ").
1.2 Grantee makes use of the Subject Land "as is ", and Grantor makes no
express or implied warranties as to the physical condition of the Subject Land.
ARTICLE 2
TERM
2.1. The term of this Right of Way commences on July 8, 2010
( "Commencement Date ") and expires on July 7, 2020 ( "Expiration Date "), unless sooner
canceled or terminated as provided herein or as provided by law.
State/Fed/Political Sub /ADOT/FC 1
R/W 12/05 Rev. 2/2010
ASLD Right of Way
Exhibit B to San Lucas Floodwall Agreement
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ARTICLE 3
RENT
3.1 Rental is due in advance for the term of this Right of Way document.
3.2 If the Grantee should fail to pay rental when due, or fail to keep the
covenants and agreements herein set forth, the Commissioner, at his option, may cancel
said Right of Way or declare the same forfeited in the manner provided by law.
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3.3 There shall be added to the delinquent rental or other monies due, a penalty
and delinquent interest. The delinquent interest rate shall be set by the State Treasurer
according to taw. The penalty shall be the greater of a minimum processing cost as
determined by the Commissioner or five (5 %) percent. The delinquent rent, penalty and
interest shall be a lien on the improvements and property on the land.
ARTICLE 4
PURPOSE AND USE OF SUBJECT LAND
4.1 The purpose of this Right of Way is the location, construction, operation, and
maintenance of-
Servige road
4.2 No material may be removed by Grantee or its contractors without the
written approval of the Commissioner.
4.3 Grantee shall not exclude from use the State of Arizona, its lessees or
grantees, or the general public the right of ingress and egress over this Right of Way.
4.4 Grantee shall acquire required permits prior to construction, and adhere to
all applicable rules, regulations, ordinances, and building codes as promulgated by the
local jurisdiction and any applicable State or Federal agencies.
4.5 All use of State Iand outside the Right of Way must be applied for -and
authorized in accordance with applicable law.
4.6 Grantee shall not sublet or assign this Right of Way or any portion thereof
without the written consent of the Grantor.
4.7 The Grantor retains ownership of the Subject Land. The use of this Right of
Way is to be non - exclusive. This Right of Way is sold subject to existing reservations,
easements, or rights of way heretofore legally obtained and now in full force and effect.
4.8 When necessary for Grantee's reasonable use of this Right of Way for the
purposes for which the grant is made, it shall be deemed to include the rights in, upon,
over, and across the described Subject Land to erect, construct, reconstruct, replace,
repair, and maintain the facilities authorized by this Right of Way.
State/Fed /Political Sub /ADOT/FC
R/W 12/05 Rev. 212010 2
ASLD Right of Way
Exhibit B to San Lucas Floodwall Agreement
4.9 Grantee shall have the right to erect, maintain, and use gates in all fences
under the control of the Grantor which now cross or shall hereafter cross said Right of
Way, and to trim, cut, and clear away trees or brush whenever in its judgment the same
F shall be necessary for the convenient and safe exercise of the right herein provided.
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4.10 Grantee shall not fence any portion of this Right of Way unless specifically
authorized in the attached additional conditions without prior written consent of Grantor,
nor shall Grantee exclude from the use of the surface thereof the State of Arizona or its
lessees or grantees as reserved in Paragraph 10.1.
ARTICLE 5
CONFORMITY TO LAW
5.1 This Right of Way is subject to applicable laws and covenants relating to
State lands:
ARTICLE 6
CANCELLATION. TERMINATION AND ABANDONMENT
6.1 This Right of Way is subject to cancellation pursuant to A.R.S. § 38 -511.
6.2 If at any time the Right of Way ceases to be used for the purpose for which it
was granted, it shall become void, and the right to use the Subject Land and all the rights
of Grantee hereunder shall revert to the Grantor.
6.3 Upon revocation or termination of the night of Way, the Grantee shall
remove all equipment or facilities and, so far as is reasonably possible, restore and /or
rehabilitate the Subject Land to its original condition,. and to the satisfaction of the
Commissioner.
ARTICLE 7
INDEMNITY
7.1 This provision is pursuant to the July 12, 2000 memorandum issued by the
Risk Management Section of the Arizona Department of Administration applicable to all
political subdivisions of the State.
Each party (as "indemnitor'l agrees to indemnify, defend, and hold harmless the
other party (as "indemnitee') from and against any and all claims, losses, liability, costs, or
expenses (including reasonable attorneys' fees) (hereinafter collectively referred to as
"claims") arising out of bodily injury of any person (including death) or property damage,
but only to the extent that such claims which result in vicarious /derivative liability to the
indemnitee, are caused by the act, omission, negligence, misconduct, or fault of the
indemnitor, its officers, officials, agents, employees, or volunteers.
State/Fed/Political Sub /ADOT/Fc
R1W 12105 Rev. 212010 3
ASLD Right of Way
Exhibit B to San Lucas Floodwall Agreement
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ARTICLE 8
RESERVATIONS, RELINQUISHMENTS
8.1 Grantor reserves the right to grant other rights in, upon, over, and across the
described Subject Land for any purpose whatsoever not inconsistent or incompatible with
the use allowed by this indenture, and the Grantee agrees not to exclude the Grantor or its
lessees or grantees from the use of the Subject Land herein described.
8.2 Grantor reserves all natural resources, timber, and minerals (including oil or
gas) in or upon the described Subject Land, and the right to grant leases, permits,
easements, and/or rights of way to extract such resources as provided by law and in a
manner not inconsistent or incompatible with Grantee rights hereunder. Where
inconsistent or incompatible uses exist, the Grantor will require the applicant therefor to
indemnify Grantee for loss it might suffer by reason of such use.
8.3 Grantor reserves the right to relinquish to the United States pursuant to the
U.S. Act of August 30, 1890, land needed for irrigation works in connection with a
government reclamation project.
ARTICLE 9
LOCATION, CONSTRUCTION AND MAINTENANCE
9.1 Grantee shall ensure full compliance with the terms and conditions of this
Right of Way by its agents, employees, and contractors (including sub - contractors of any
tier), and the employees of each of them and shall include the. terms and conditions in all
contracts and sub- contracts which are entered into by any of them.
9.2 Failure or refusal of Grantee's agents, employees, contractors, sub-
contractors, or their employees to comply with these terms and conditions shall be deemed
to be the failure or refusal of Grantee. ,
ARTICLE 10
NATIVE PLANTS AND ARCHAEOLOGICAL RESOURCES
10.1 If the removal of plants protected under the Arizona Native Plant Law is
necessary to enjoy the privilege of this Right of Way, the Grantee hereunder must obtain
the written permission of the Grantor and the Arizona Department of Agriculture prior to
removal of those plants.,
10.2 Grantee shall promptly notify the Commissioner of the amount of flora, if
any, which will be cut, removed, or destroyed in the construction and maintenance of said
Right of Way and shall pay the Grantor such sum of money as the Commissioner may
determine to be the full value of the flora to be so cut, removed, or destroyed. Grantee
State/FeWPolitical Sub/ADOT/FC
R/W 12/05 Rev. 2/2010 4
ASLD Right of Way
Exhibit B to San Lucas Floodwall Agreement
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shall notify the Grantor and the Arizona Department of Agriculture 30 days prior to any
? destruction or removal of native plants to allow salvage of those plants where possible.
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10.3 Prior to surface disturbance, the Grantee hereof shall provide evidence of
archaeological clearance to the Grantor. Archaeological surveys and site mitigation must
be conducted in accordance with rules and regulations promulgated by the Director,.
Arizona State Museum. In the event additional archaeological resources are detected by
Grantee after receipt of archaeological clearance, all work shall cease and notification shall
be given to the Director, Arizona State Museum, and Grantor.
ARTICLE 11
GRANTEE SHALL PROTECT AND RESTORE THE SUBJECT LAND
11.1 Grantee shall be required, upon completion of Right of Way construction, to
make such rehabilitation measures on the State lands, including but not limited to
restoration of the surface, revegetation, and fencing as determined necessary by the
Grantor.:
11.2 Grantee shall conduct all construction and maintenance activities in a
manner that will minimize disturbance to all land values including, but not limited to
vegetation, drainage channels, and streambanks. Construction methods shall be designed
to prevent degradation of soil conditions in areas where such degradation would result in
detrimental erosion or subsidence. Grantee shall take such other soil and resource
conservation and protection measures on the Subject Land under grant as determined
necessary by the Grantor.
11.3 Costs , incurred by the Grantee in complying with restoration and
rehabilitation requirements, as determined by the Department, on State lands shall be
borne by the Grantee.
11.4 Grantee shall conduct its operations on the Subject Land in such a manner
as is consistent with good environmental practices. Grantee shall exert reasonable efforts to
avoid damage of protected flora, and restore the surface to its condition prior to the
occupancy thereof by Grantee.
ARTICLE 12
MISCELLANEOUS
12.1 The described Subject Land shall be used only for the purpose stated in
Paragraph 4.1, and as may be further detailed elsewhere in this document.
12.2 This Document is submitted for examination and shall have no binding effect
on the parties unless and until executed by the Grantor (after execution by the Grantee),
and until a fully executed copy is delivered to the Grantee.
State/Fed/Political Sub/ADOT/FC
R/W 12/05 Rev. 2/2010
ASLD Right of Way
j Exhibit B to San Lucas Floodwall Agreement
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12.3 In the event of a dispute between the parties to this Right of Way, it is agreed
? to use arbitration to resolve the dispute, but only to the extent required b A.R.S.
� p � Y q Y § 12-
1518. In no event shall arbitration be employed to resolve a dispute which is otherwise
subject to administrative review by the Department.
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12.4 Insurance provisions are intentionally omitted from this Permit pursuant to
the July 12, 2000 memorandum issued by the Risk Management Section of the Arizona
Department of Administration to all political subdivisions of the State.
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12.5 The Grantor does not represent or warrant that access exists over other State
lands which intervene respectively between the above Right of Way and the nearest public
roadway.
12.6 If for any reason the State of Arizona does not have title to any of the Subject
Land described herein, this Right of Way shall be null and void insofar as it relates to the
land to which the State has failed to receive title.
12.7 Every obligation of the State under this Right -of Way is conditioned upon the
availability of funds appropriated or allocated for the payment of such obligation. If funds
are not allocated and available for the continuance of this Right of Way, this Right of Way
may be terminated by the State at the end of the period for which funds are available. No
liability shall accrue to the State in the event this provision is exercised, and the State shall
not be obligated or liable for any future payments or any damages as a result of
termination under this paragraph.
12.8 The parties agree to be bound by applicable State and Federal rules
governing Equal Employment Opportunity, Non- discrimiliation and Disabilities, including
Executive Order No. 2009 -09.
12.9 Within 30 days of project completion, Grantee shall submit a completed
certificate of construction (copy attached).
State/Fed /Political Sub /ADOT/FC
R/W 12/05 Rev. 212010 6
ASLD Right of Way
Exhibit B to San Lucas Floodwall Agreement
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IN WITNESS HEREOF, the parties hereto have signed this Right of Way effective the day
and year set forth previously herein.
STATE OF ARIZONA, GRANTOR
Arizona State Land Commissioner TOWN OF MARANA
GRANTEE
By: �' touL t , � . a ,:•Y t y ti
. Date Authorized Signature Date
.%I t A,pp
Town Engineer
we V Title
11555 W. Civic Center Dr.
Address
Marana, AZ 85653 r
City State Zip
StateWed/Political Sub /ADOTIM
WW 12/05 Rev. 2/2010 7
ASLD Right of Way
Exhibit B to San Lucas Floodwall Agreement
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ADDITIONAL CONDITIONS FOR
18- 114457
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1. The legal description of this right of way is detailed in Exhibit A. Subject to Grantor's
rules and policies then in place and as a result of construction related restrictions, Grantor
and Grantee may agree to modify the legal description by Grantee submitting "as built"
or "proposed realignment" legals, depending on the situation, to the Grantor for Grantor's
review. If approved by Grantor and additional acreage is impacted Grantee agrees to pay
an appraised or pro -rated charge as the Grantor determines is appropriate. No refund will
g be made for a reduction in acreage.
2. Grantee shall ensure that a permittee of the Arizona State Museum has obtained a project-
specific permit to monitor all ground disturbing activities within the boundaries of the
archaeological site recorded as AZ AA:12:646(ASM). Grantee shall ensure that any
prehistoric, historic, or paleontological remains discovered during monitoring are
reported to Grantor and the Arizona State Museum, and that any such discoveries are
otherwise treated according to A.R.S.§ 41 -844. Grantee shall provide Grantor with two
copies of the monitoring report.
3. Grantor reserves the right to grant additional access rights, or any other rights not in
conflict with the rights granted herein, to other parties at Grantor's sole discretion.
4. Grantee shall acquire any permits necessary prior to maintenance of service roads.
5. Grantee shall not alter or cause ponding, or any damage up or down stream of any water
crossing.
6. Grantee shall not exclude from use the State of Arizona, its Lessees or Grantees, or the
general public the right of ingress and egress over the service roadways.
7. A survey may be required to determine if protected plants are present and if they must be
salvaged. The Arizona Department of Agriculture shall be notified at least 60 days
before the salvage work begins.
8. Service roads shall be maintained in substantially the same condition as they exist at the
time the Permit is issued except, if not drivable they may be made drivable, subject to
paragraph 13.
9. Grantee shall not fence or gate the access/service roads.
10. Grantee shall keep all gates closed and insure its contractors do the same. Grantor
reserves the right to require cattle guards if Grantor determines gates are being left open
or fencing has been removed or damaged by Grantee, its employees or contractors.
I L Any grazing related improvements removed or damaged due to construction, operation,
and maintenance of this right-of-way shall be replaced and/or reconstructed immediately.
Cost of replacement and reconstruction shall be the responsibility of the Grantee.
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I ADDITIONAL CONDITIONS FOR
18- 114457
12. Grantee shall use existing roads unless approved otherwise in writing by the Grantor.
13. Unless Grantee elects to relinquish this Right -of -way, Grantee shall relocate roads to a
route selected by Grantor, upon Grantor's request, at Grantee's expense.
14. No altering of existing drainages or drainage structures are authorized under this
instrument.
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Revised 6/20/07
ASLD Right of Way
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