HomeMy WebLinkAbout09/05/2006 Blue Sheet Drainage Channel Agreement for Saguaro Springs
TOWN COUNCIL
MEETING
INFORMATION
MEETING DATE:
TOWN OF MARANA
September 5, 2006
AGENDA ITEM:
J.4
TO: MAYOR AND COUNCIL
FROM: Frank Cassidy, Town Attorney
SUBJECT: Resolution No. 2006-142: Relating to Development; approving
and authorizing the Mayor to sign a Drainage Channel Agreement
between the Arizona State Land Department, Saguaro Reserve
LLC, and the Town of Marana.
DISCUSSION
For many months, the developer of Saguaro Springs, Saguaro Reserve LLC, has been negotiating
with the Arizona State Land Department (ASLD) and Town staff on the terms of a drainage
agreement to allow for the drainage of water from the Saguaro Springs project and its general
vicinity across State land to the west and returning to the natural drainage condition at the Bu-
reau of Reclamation property located east of the Central Arizona Project Canal and south of
A vra Valley Road. The agreement calls for Saguaro Reserve to construct a temporary drainage
channel during a two-year right-of-entry and to deposit funds sufficient to secure the right-of-
way for a ten-year period. Planning of the State land located west of Saguaro Ranch, referred to
in the drainage agreement as "Parcel A," will include consideration of where a permanent drain-
age channel ought to be located. Upon ASLD's sale of Parcel A for the portion affected by the
drainage channel, a permanent drainage channel will be created. The temporary and permanent
channel design are intended to accommodate the development of Saguaro Springs and Parcel A,
assuming compliance with all on-site retention and detention requirements.
The drainage agreement includes several affirmative obligations and representations of the
Town. After construction of the drainage channel by Saguaro Reserve, the Town will take over
its operation and maintenance. Also, the Town represents in the agreement that it has reviewed
the drainage channel design and acknowledges that it is adequate to serve Saguaro Springs and
Parcel A. There is also an unlikely contingency in which the Town could find itself obligated to
acquire an extension of the temporary right-of-way across State land in the unlikely event that
Saguaro Springs does not move forward. Town staff considers this contingency to be remote,
and in any event, believes that the Town's regional drainage benefits accruing from the drainage
agreement justify the Town's contingent obligation under the drainage agreement.
RECOMMENDATION
Staff recommends adoption of Resolution No. 2006-142, approving and authorizing the execu-
tion of the Saguaro Springs Drainage Agreement.
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A TT ACHMENT(S)
Drainage Channel Agreement between the Arizona State Land Department, Saguaro Re-
serve LLC, and the Town of Marana.
SUGGESTED MOTION
I move to adopt Resolution No. 2006-142.
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-2-
MARANA RESOLUTION NO. 2006-142
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
SIGN A DRAINAGE CHANNEL AGREEMENT BETWEEN THE ARIZONA STATE LAND
DEP ARTMENT, SAGUARO RESERVE LLC, AND THE TOWN OF MARANA.
WHEREAS, the developer of Saguaro Springs, Saguaro Reserve LLC, has been
negotiating with the Arizona State Land Department (ASLD) and Town staff on the terms of a
drainage agreement to allow for the drainage of water from the Saguaro Springs project and its
general vicinity across State land to the west and returning to the natural drainage condition at the
Bureau of Reclamation property located east of the Central Arizona Project Canal and south of
A vra Valley Road; and
WHEREAS, the Mayor and Council find that the terms and conditions of the Drainage
Agreement are in the best interest of the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the drainage agreement between the Arizona State
Land Department, Saguaro Reserve LLC, and the Town of Marana, attached to and incorporated
by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby
authorized to execute it for and on behalf of the Town of Marana.
BE IT FURTHER RESOLVED that 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 aforementioned agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 5th day of September, 2006.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
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Saguaro Springs
Drainage Channel
Agreement
And Related Exhibits
Table of Contents
Drainage Agreement
Tab A..........Exhibit A: Description of Property, Parcel A
Tab B..........Exhibit B: Description of Property, Saguaro Springs Parcel
Tab C..........Exhibit C: Description of Temporary Drainage Channel
Tab D..........Exhibit D: Description of Property, BOR
Tab E..........Exhibit E: CA WCD Letter
Tab F..........Exhibit F: US Army Corps of Engineers Letter
Tab G.........Exhibit G: Description of Temporary Right of Way across Parcel A
Tab H.........Exhibit H: Right of Entry
Tab I..........Exhibit I: Stamped Engineer's Letter
Tab J..........Exhibit J: Description of Property, Planning Parcel
Tab K.........Exhibit K: Special Land Use Permit
Tab L.........Exhibit L: Proposed Drainage Section
SAGUARO SPRINGS DRAINAGE CHANNEL AGREEMENT
THIS DRAINAGE CHANNEL AGREEMENT (the "Drainage Agreement") is entered
into as of the _ day of ,2006, by and between the ARIZONA STATE LAND
DEPARTMENT, an agency ofthe State of Arizona ("ASLD"), SAGUARO RESERVE LLC, a
Delaware limited liability company ("Saguaro Reserve"), and the TOWN OF MARANA,
ARIZONA, an Arizona municipal corporation ("Town").
RECITALS
This Drainage Agreement is predicated upon the following facts:
A. The State of Arizona, as trustee, acting by and through ASLD, is the owner of
certain real property located within Town's municipal boundaries, which property is more
particularly described on Exhibit A attached hereto ("Parcel A").
B. Saguaro Reserve, as beneficiary of Trust No. 9089, First American Title
Insurance Company, a California corporation as trustee only and not otherwise, is the owner of
certain real property, located adjacent and to the east of Parcel A, which property is more
particularly described on Exhibit B attached hereto ("Saguaro Springs Parcel"). The Saguaro
Springs Parcel is presently being prepared for residential development.
C. Town has required, in connection with the development of the Saguaro Springs
Parcel, that Saguaro Reserve provide for retention, detention, and drainage so as not to increase
the historic flows of water from the Saguaro Springs Parcel onto Parcel A or other lands
owned by persons other than Saguaro Reserve. Town has agreed that Saguaro Reserve can
resolve all the Town's off-site drainage requirements by constructing a temporary drainage
channel across Parcel A, which channel is more particularly described on Exhibit C attached
hereto ("the Temporary Drainage Channel"), to convey storm water and other waters flowing
across or from Parcel A, the Saguaro Springs Parcel, and certain other properties in the region,
to a drainage basin on certain property more particularly described on Exhibit D attached hereto
owned by the U.S. Bureau of Reclamation ("BOR") and managed by the Central Arizona Water
Conservation District ("CA WCD") (the "CAP Parcel").
D. Based on review of the Preliminary Drainage Study prepared by Stantec dated
November 14,2005, CA WCD has expressed its support of the design of the Temporary
Drainage Channel and its willingness to accept the drainage flows through the Temporary
Drainage Channel onto the CAP Parcel provided that such flows will not exceed historic flows
onto the CAP Parcel. CA WCD has not agreed to accept increased flows resulting from the
future development of Parcel A. (See Exhibit E attached hereto.)
E. The United States Army Corps of Engineers has determined that no jurisdictional
waters are located within the Temporary Right of Way Parcel (as defined below), Parcel A,
the Saguaro Springs Parcel, or immediately surrounding areas so that no Section 404 permit is
required to develop the Temporary Drainage Channel, Parcel A or the Saguaro Springs
Parcel. (See Exhibit F attached hereto.)
Drainage Agreement 08/14
Page 1 of 17
F. In order to obtain the requisite legal authority to construct, operate, maintain, and
repair the Temporary Drainage Channel, Saguaro Reserve has applied to ASLD for a
temporary (ten years in duration) right of way (the "Temporary Right of Way") across Parcel
A, which location is more particularly described on Exhibit G attached hereto ("the Temporary
Right of Way Parcel"). Pursuant to applicable law, ASLD may grant rights of way often years
or less without public auction. Upon completion of construction of the Temporary Drainage
Channel, Saguaro Reserve agrees to assign its interest in the Temporary Right of Way to
Town and Town agrees to accept the assignment.
G. To provide Saguaro Reserve the requisite legal authority to enter immediately
upon the Temporary Right of Way Parcel in order to construct, operate, maintain, and repair
the Temporary Drainage Channel pending the issuance of the Temporary Right of Way, and
based upon the previous approval of plans and specifications by Town and ASLD, ASLD shall
issue upon execution of this Drainage Agreement the right of entry attached hereto as Exhibit
H ("the Right of Entry").
H. Engineering studies conducted by Stantec at Saguaro Reserve's expense have
concluded that the design and construction of the Temporary Drainage Channel will provide
sufficient capacity to remove from the 100 year floodplain the approximately 300 acres of Parcel
A to ~he north ofthe Temporary Drainage Channel that are presently within the 100 year
floodplain by reducing existing, periodic flooding that occurs when sheet flows exceed the
capacity of the existing natural channel. Saguaro Reserve has provided to ASLD a stamped
engineer's letter, attached hereto as Exhibit I, ratifying this conclusion to facilitate the removal
ofthe effected land from the 100 year floodplain through the Conditional Letter of Map
Revision/Letter of Map Revision process, by any purchaser of all or part of Parcel A, its
successors and assigns ("Parcel A Purchaser").
1. The Parties acknowledge that ASLD has not yet had the opportunity to perform
the engineering or planning necessary to determine whether the proposed Temporary Drainage
Channel will benefit or harm Parcel A. To expedite approval and construction of the
Temporary Drainage Channel and development of the Saguaro Springs Parcel, Saguaro
Reserve agrees to compensate ASLD for any diminution in the value of Parcel A caused by the
Temporary Drainage Channel, as determined by an appraisal following completion of the
future Planning (as defined below).
J. For development of Parcel A, Town may require the construction and dedication
to Town, on the terms and conditions established by ASLD and Town, of a permanent drainage
channel which will provide for detention and/or retention and drainage so as not to increase the
rate of historic, pre-development flows of water from Parcel A onto lands owned by persons
other than Parcel A Purchaser following development of Parcel A (the "Permanent Drainage
Channel"). The Temporary Drainage Channel mayor may not require further improvements
to meet the design and construction requirements of the Permanent Drainage Channel and the
Permanent Drainage Channel mayor may not be located on the Temporary Right of Way
Parcel.
Drainage Agreement 08/14
Page 2 of 17
K. The Parties acknowledge that in order to determine the appropriate location and
design of any Permanent Drainage Channel, planning and engineering studies must be
completed on a larger parcel of land owned by ASLD that includes, is adjacent to, and surrounds
Parcel A on the north, west, and south, as more particularly described in Exhibit J attached
hereto ("the Planning Parcel").
L. Saguaro Reserve has submitted to ASLD a planning permit application to
conduct the planning on the Planning Parcel which includes, but is not limited to, determining
any harm caused by the Temporary Drainage Channel to Parcel A and the location of any
Permanent Drainage Channel (the "Planning"), but to satisfy the terms of this Drainage
Agreement the Planning may also be completed by ASLD or an outside consultant.
M. Saguaro Reserve agrees that it shall remain responsible to ASLD to ensure that
flows of water from the Saguaro Springs Parcel onto the Planning Parcel do not exceed
historic flows, including in the event that the Temporary Drainage Channel fails sufficiently to
limit the flows from the Saguaro Springs Parcel
N. Any Permanent Drainage Channel required by Town need only be constructed
after both the completion ofthe Planning and the occurrence of one of the following events: (1)
the Temporary Drainage Channel fails to limit the flows of water from the Saguaro Springs
Parcel to historic flows or otherwise fails to meet federal, state, or local requirements; (2) ASLD
sells at public auction all or a portion of Parcel A which encompasses the location, as
determined by the Planning, of the most appropriate location for the Permanent Drainage
Channel (the "Permanent Drainage Channel Parcel"); or (3) an interested party applies for
and ASLD grants a perpetual drainage easement over the Permanent Drainage Channel
Parcel.
NOW, THEREFORE, in consideration of the covenants contained herein, the Parties
agree as follows:
AGREEMENT
1. Recitals. The Parties incorporate the above recitals by reference, represent that
the above recitals are true and correct, and acknowledge that the Parties are entitled to rely
thereon.
2. Authority. The Parties represent to each other that they are duly authorized by
law to enter into this Drainage Agreement, and that the persons whose names are affixed below
are duly authorized to execute this Drainage Agreement on behalf of the named Parties.
3. Temporary Drainage Channel.
3.1. Grant of Temporary Right of Way. Saguaro Reserve has applied to
ASLD for the Temporary Right of Way, ten years in duration, over the Temporary Right of
Way Parcel, and shall pay the estimated cost of appraisal and a deposit equal to the estimated
full cost ofthe ten-year Right of Way. Subject to applicable ASLD regulations, ASLD shall
Drainage Agreement 08/14
Page 3 of 17
complete the appraisal, conduct any necessary surveys, establish all necessary conditions for the
Temporary Right of Way, and then grant the Temporary Right of Way to Saguaro Reserve
for a sum equal to the full ten-year cost ofthe Temporary Right of Way.
3.2. Issuance of Right of Entry. Based upon Saguaro Reserve's compliance
with ASLD procedures, the previous approval of plans and specifications by Town and ASLD,
and receipt by ASLD from Saguaro Reserve of one thousand two hundred dollars ($1,200.00)
plus an amount equal to the estimated full ten-year cost to obtain the Temporary Right of Way,
ASLD shall issue upon execution of this :Drainage Agreement a Right of Entry authorizing
Saguaro Reserve to enter upon the Temporary Right of Way Parcel prior to the issuance of
the Temporary Right of Way in order to construct, operate, maintain, and repair the
Temporary Drainage Channel according to the plans and specifications approved by Town
and ASLD, as summarized in Exhibit D.
3.3. Term of Right of Entry. Pursuant to ASLD procedures, the Right of
Entry shall have an initial duration of two years from the date of issuance. In the event that the
granting of the Temporary Right of Way has not yet occurred as of the expiration of the Right
of Entry, ASLD shall, pursuant to applicable ASLD regulations, extend the term of the Right of
Entry for two years. The Right of Entry, including permitted extensions, shall terminate when
one of the following occurs: (i) ASLD issues the Temporary Right of Way; (ii) ASLD sells
pursuant to public auction all or a portion of Parcel A which includes the Temporary Right of
Way Parcel and issues a certificate of purchase or patent thereon; or (iii) ASLD offers the
Temporary Right of Way to Saguaro Reserve, according to the terms stated herein and valid
according to ASLD regulations, and Saguaro Reserve fails to purchase the Temporary Right
of Way.
3.4. Construction of Temporary Drainage Channel. Following issuance of
the Right of Entry, Saguaro Reserve shall construct the Temporary Drainage Channel within
the Temporary Right of Way Parcel at Saguaro Reserve's sole cost and expense.
3.5. Town Approval. Town consents to and approves the construction of the
Temporary Drainage Channel according to the plans and specifications summarized in
Exhibit D.
3.6. Modification of Plans and Specifications. Any modification of the plans
and specifications summarized in Exhibit D must be approved by Town. ASLD must also
approve, and has final approval of, any modified plans and specifications, based upon local,
state, and federal design standards.
3.7. Special Land Use Permit. Saguaro Reserve has applied to ASLD for a
Special Land Use Permit so that Saguaro Reserve may stockpile the dirt displaced from the
construction of the Temporary Drainage Channel (the "Dirt Stockpile") on a portion of
Parcel A adjacent and to the south of the Temporary Right of Way Parcel. ASLD is
processing and shall issue, if permitted by applicable law, a Special Land Use Permit in the form
attached hereto as Exhibit K (the "Special Land Use Permit").
Drainage Agreement 08/14
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3.7.1. Saguaro Reserve acknowledges that it is not authorized by ASLD
to remove, use, sell, or otherwise dispose of any fill dirt that is accumulated by
reason of Saguaro Reserve's excavation ofthe Temporary Drainage Channel.
3.7.2. The Special Land Use Permit shall terminate no later than the
sale at public auction by ASLD of the portion of Parcel A containing the Dirt
Stockpile. ASLD shall have the right to terminate the Special Land Use Permit
as stated in the Special Land Use Permit. Prior to the termination ofthe Special
Land Use Permit, ASLD, with input from Saguaro Reserve, shall determine the
permanent disposition of the Dirt Stockpile. The Parties acknowledge ASLD's
present intention either to sell the Dirt Stockpile as part of the public auction of
Parcel A or to sell the Dirt Stockpile separately as a natural product of the trust
land. ASLD reserves its right, however, to require Saguaro Reserve to spread
the Dirt Stockpile upon the Planning Parcel should the sale of Parcel A or the
Dirt Stockpile not be economically feasible upon termination of the Special
Land Use Permit.
3.7.3. Saguaro Reserve shall protect, defend, indemnifY, and hold
harmless ASLD from and against all loss, damage, liability, costs, charges, and
expenses, including attorneys' fees and court costs, incident to, arising out of, or
resulting in any way from the erection, maintenance, or existence of the Dirt
Stockpile.
3.8. Assignment of Temporary Right of Way. Upon completion of
construction of the Temporary Drainage Channel to Town's standards, Saguaro Reserve
agrees to assign its interest in the Temporary Right of Way to Town, pursuant to ASLD
regulations for assigning rights of way, and Town agrees to accept the assignment. Should
Saguaro Reserve complete the Temporary Drainage Channel before ASLD grants the
Temporary Right of Way, then Saguaro Reserve will assign its Temporary Right of Way
application to Town and Town shall apply to ASLD for a Right of Entry in the form granted to
Saguaro Reserve (see Exhibit H). Should the ten-year duration of the Temporary Right of
Way expire prior to the completion and dedication ofthe Permanent Drainage Channel and/or
dedication of the perpetual drainage easement as discussed in Section 5.5 below, then Town may
apply for a renewal of the Temporary Right of Way pursuant to ASLD regulations.
3.9. Operation, Maintenance, and Repair of the Temporary Drainage
Channel. Following assignment as described in Section 3.8 above, Town hereby agrees to
assume full responsibility to maintain, operate, and repair the Temporary Drainage Channel
according to the plans and specifications approved by Town and ASLD. In performing these
functions, Town shall remain subject to the conditions of the Temporary Right of Way,
including all indemnity and insurance provisions. Saguaro Reserve shall indemnifY and hold
ASLD and Town harmless from and against any and all claims by CA WCD, BOR, or other
persons or entities having an interest in the CAP Parcel, arising from or in any way relating to
the conveyance of an amount of water that exceeds the CAP Basin's capacity through the
Temporary Drainage Channel to the CAP Parcel. The Parties expressly acknowledge that
Drainage Agreement 08/14
Page 5 of 17
ASLD has no responsibilities or obligations regarding the operation, maintenance, or repair of
the Temporary Drainage Channel.
4. Planning.
4.1. Application for Planning Permit. Saguaro Reserve has applied to
ASLD for a planning permit to develop plans for the development of the Planning Parcel.
4.2. Planning to Establish Benefit or Detriment to Parcel A. The Planning,
which may be conducted by Saguaro Reserve, ASLD, or an outside consultant, will in part
determine whether the Temporary Drainage Channel diminishes the value of Parcel A, using
reasonable and customary engineering and development standards. The Planning will not
assume any disproportionate or unusual development constraints on Parcel A to the detriment of
ASLD.
4.3. Harm to Parcel A. If the Planning determines that the Temporary
Drainage Channel diminishes the value of Parcel A, then Saguaro Reserve shall compensate
ASLD for the diminution in value. The diminution in value shall be determined by an appraiser
mutually selected by ASLD and Saguaro Reserve, and the appraiser shall value Parcel A at its
highest and best use. If ASLD and Saguaro Reserve cannot mutually agree upon an appraiser,
then each shall select one appraiser to a panel. The selected appraisers shall themselves select a
third appraiser to serve on the panel as chairperson. The agreement as to the diminution of value
by two of the three appraisers on the panel shall be conclusive and binding on both ASLD and
Saguaro Reserve, subject to ASLD's requirement that the appraised diminution of value be
approved by the State Land Department Board of Appeals and State Land Commissioner.
4.4. Planning to Recommend Location of Permanent Drainage Channel.
The Planning shall also review alternatives and make a recommendation as to the best location
of the Permanent Drainage Channel, subject, but not limited, to the following planning
conditions.
4.4.1. BOR and/or CAP/CA WCD will accept only existing cubic feet
per second flows from the Planning Parcel onto the CAP Parcel. (Should BOR
and/or CAP/CA WCD agree to allow greater flows in the future, then the
planning conditions may be adjusted accordingly.)
4.4.2. The Permanent Drainage Channel is sized to accommodate only
the existing cubic feet per second flows from property adjacent to the Permanent
Drainage Channel onto the CAP Parcel.
4.4.3. To insure flow rates are not increased, detention may be required
on the Planning Parcel.
4.4.4. Saguaro Reserve must obtain from CAP/CA WCD, in a form
acceptable to ASLD, an assurance that CAP/CA WCD will accept the flows from
the Planning Parcel as reflected in the Planning. Saguaro Reserve shall also
notify BOR of the flows from the Planning Parcel as reflected in the Planning,
Drainage Agreement 08/14
Page 6 of 17
and provide BOR a reasonable opportunity to object. (As of the date of this
Drainage Agreement, the Parties understand that BOR makes no management
decisions regarding the flows onto the CAP Parcel.)
4.4.5. The Planning shaIl verify that the Permanent Drainage Channel
will be capable of receiving all flows generated from the Planning Parcel
subsequent to the development of all of Parcel A, and the portion of Parcel A
that will be removed from the floodplain as a result of the Permanent Drainage
Channel.
S. Permanent Drainage Channel.
5.1. Determining the Location ofthe Permanent Drainage Channel. After
completion of the Planning, Town shall determine whether it shall require construction ofa
Permanent Drainage Channel. If a Permanent Drainage Channel is required, ASLD and
Town shall use their reasonable discretion to determine the best location for the Permanent
Drainage Channel, after taking into consideration the alternatives developed and
recommendation made in the Planning. When determining the best location of the Permanent
Drainage Channel, ASLD and Town will balance costs and benefits as would any reasonable
and prudent land developer, and will not require any extraordinary or "gold plated" engineering
solutions at either Saguaro Reserve's or Parcel A Purchaser's expense. ASLD and Town
must agree to and Town must approve the final location of the Permanent Drainage Channel
Parcel according to applicable law, which location mayor may not be identical to the
Temporary Right of Way Parcel.
5.2. Design and Construction of Permanent Drainage Channel. Any
required Permanent Drainage Channel will be constructed in accordance with the proposed
design and specifications stated on Exhibit L attached hereto, unless the proposed design and
specifications fail to adhere to the applicable Town standards and specifications in effect at the
time the party constructing the Permanent Drainage Channel applies to Town for a permit to
construct those improvements or unless otherwise agreed to by the Parties. Town hereby agrees
not to grant final approval of the design and specifications of the Permanent Drainage Channel
unless CAP/CA WCD agrees that the proposed design and specifications are acceptable and
BOR is notified of and given reasonable opportunity to object to the proposed design and
specifications.
5.3. Timing of Construction of Permanent Drainage Channel. Any
Permanent Drainage Channel required by Town need only be constructed after both the
completion of the Planning and the occurrence of one of the following events: (1) the
Temporary Drainage Channel fails to limit the flows of water from the Saguaro Springs
Parcel to historic flows or otherwise fails to meet federal, state, or local requirements, in which
case Saguaro Reserve shall remain responsible to ensure that flows of water from the Saguaro
Springs Parcel do not exceed historic flows until construction of the Permanent Drainage
Channel is completed; (2) ASLD sells at public auction all or a portion of Parcel A which
encompasses the location, as determined by the Planning, of the Permanent Drainage Channel
Drainage Agreement 08/14
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Parcel; or (3) an interested party applies for and ASLD grants a perpetual drainage easement
over the Permanent Drainage Channel Parcel.
5.4. Sale of Initial Parcel A Sale Parcel. Should Town require a Permanent
Drainage Channel, at the time of sale ofa portion of Parcel A including the Permanent
Drainage Channel Parcel (the "Initial Parcel A Sale Parcel"), ASLD shall condition the sale
of the Initial Parcel A Sale Parcel on: (i) the Parcel A Purchaser's construction and
completion of the Permanent Drainage Channel to Town's standards within two years after
the auction of the Initial Parcel A Sale Parcel or, (ii) if construction of the Permanent Drainage
Channel has already been completed, the Parcel A Purchaser's reimbursement to the entity
which completed the construction for the expenditures to construct the Permanent Drainage
Channel, exclusive of any expenditures spent to construct the Temporary Drainage Channel.
If ASLD holds a public auction to sell the Initial Parcel A Sale Parcel prior to the granting of a
perpetual drainage easement pursuant to Section 5.5 below, then ASLD shall condition the sale
upon the Parcel A Purchaser's granting to Town a renewal of the Temporary Right of Way
until a perpetual drainage easement pursuant to Section 5.5 below is granted. If ASLD sells the
Initial Parcel A Sale Parcel and issues a certificate of purchase or patent thereon prior to the
date ten years from the issuance of the Temporary Right of Way pursuant to Section 3.1 above,
then ASLD shall refund to Saguaro Reserve the pro rata amount of the unused duration of the
Right of Way.
5.5. Dedication to and Assumption by Town.
5.5.1. Upon completion of the Permanent Drainage Channel to Town's
standards, the entity which constructed the Permanent Drainage Channel shall
assign and/or dedicate to Town a perpetual drainage easement over the
Permanent Drainage Channel Parcel, shall dedicate to Town the Permanent
Drainage Channel, and shall assign any remaining obligations under this
Drainage Agreement to Town, which shall accept the assignment and dedication
and assume those obligations. Thereafter Town shall be responsible to perform
all obligations of the owner of Permanent Drainage Channel, including but not
limited to its maintenance, operation, and repair.
5.5.2. If, as provided in Section 5.1 above, Town determines that
construction ofa Permanent Drainage Channel is not required and that the
Temporary Drainage Channel suffices to meet Town's requirements, then
Town shall apply for a perpetual drainage easement over the Temporary
Drainage Channel Parcel and shall retain its obligation to maintain, operate, and
repair the Temporary Drainage Channel.
5.5.3. Notwithstanding any other applicable Town ordinance or
regulation, in any rezoning action or development approval process any perpetual
drainage easement granted pursuant to this Section shall qualify to satisfy Town's
land use designations and requirements for "open space" and/or for "mitigation
land" requirements, to the extent permitted by the relevant regulating agency.
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5.6. Satisfaction of Off-Site Drainage Requirements. Construction and
dedication of the Permanent Drainage Channel pursuant to a validly issued permit by Town or
Town's determination that the Temporary Drainage Channel suffices to meet Town's
requirements and the issuance of a perpetual drainage easement in favor of Town under Section
5.5 above will satisfy all Town requirements for off-site drainage or regional drainage in
connection with the development of Parcel A. ASLD, Saguaro Reserve, and any future
developers of Parcel A, their successors and assigns shall then have no liability or responsibility
for the construction of additional, replacement, or different off-site drainage improvements in
connection with the development of Parcel A.
5.7. Reserved Rights. ASLD, for itself, its successors and assigns hereby
reserves and shall retain the right to use and dispose of Parcel A in any manner, and for any
purpose, not inconsistent with the Right of Entry, Temporary Right of Way, any perpetual
drainage easement, and this Drainage Agreement. Such rights specifically include, but are not
limited to, the right to use, occupy, and cross the Temporary Right of Way, the right to re-
landscape the Temporary Right of Way, the right to make improvements and install signage
and monuments within the Temporary Right of Way, and the right to paint or otherwise
embellish any of the Temporary or Permanent Drainage Channels to harmonize its
appearance with other development on Parcel A, subject to obtaining any required Town
approvals or permits. The construction and maintenance of, and liability for, such landscaping
and improvements shall remain the responsibility of ASLD, its successors and assigns, and shall
not be any part of the obligations of Town undertaken pursuant to this Drainage Agreement or
otherwise.
5.8. Restoration. Saguaro Reserve agrees that if it is determined pursuant to
Section 5.1 above that the Permanent Drainage Channel shall be located somewhere other than
on the Temporary Right of Way Parcel, then Saguaro Reserve shall restore the entire
Temporary Right of Way Parcel to the condition as it existed on the date of this Drainage
Agreement. If only a part of the Temporary Right of Way Parcel is not used for the
Permanent Drainage Channel, then Saguaro Reserve shall restore that part of the Temporary
Right of Way Parcel to the condition as it existed on the date of this Drainage Agreement.
ASLD may agree to accept from Saguaro Reserve payment of the cost of restoration in lieu of
physical restoration, which shall satisfy any claim by ASLD for diminution of value and
preclude the need to conduct any appraisal and valuation process, as set forth in Section 4.3,
above.
6. Financial Assurance.
6.1. Amount of Assurance. Saguaro Reserve shall provide or cause to be
provided to ASLD financial assurance, in the form of bond or other security acceptable to
ASLD, in an amount equal to:
6.1.]. upon issuance of the Special Land Use Permit, twenty-five
percent (25%) ofthe estimated cost to spread the Dirt Stockpile from Parcel A
onto the Planning Parcel, as may be required under Section 3.7.2 above should
Drainage Agreement 08/14
Page 9 of 17
other means to dispose of the Dirt Stockpile prove not to be economically
feasible, plus
6.1.2. upon issuance of the Right of Entry, one hundred twenty-five
percent (125%) of the estimated cost to construct the Temporary Drainage
Channel, as security to ASLD to ensure completion of the Temporary Drainage
Channel andlor payment to ASLD in the event that the Planning determines
according to the procedure described in Section 4.3 above that the Temporary
Drainage Channel diminishes the value of Parcel A.
Saguaro Reserve shall develop the estimated costs set forth above, subject to
approval by ASLD.
6.2. Release of Assurance Under Section 6.1.1. ASLD shall release Saguaro
Reserve from the obligation to provide financial assurance in an amount equivalent to that
provided under Section 6. 1.1 upon disposition of the Dirt Stockpile in a manner acceptable to
ASLD.
6.3. Release of Assurance Under Section 6.1.2. In conjunction with the
financial assurance provided to ASLD under Section 6. I .2, above, Saguaro Reserve shall
provide to ASLD, subject to ASLD's approval, benchmarks tying estimated cost of construction
to phases of completed construction of the Temporary Drainage Channel. Upon ASLD's
verification of the completion of each benchmark, ASLD shall release Saguaro Reserve from
the obligation to provide financial assurance in an amount equal to fifty percent (50%) of the
amount of the estimated cost tied to the completed construction. ASLD shall release Saguaro
Reserve from the obligation to provide financial assurance in an amount equal to fifty percent
(50%) of the total amount assured under Section 6.1.2 upon completion of Planning showing
that the Temporary Drainage Channel does not diminish the value of Parcel A, upon payment
by Saguaro Reserve to ASLD the amount by which the Temporary Drainage Channel
diminishes the value of Parcel A as determined pursuant to Section 4.3; or (c) upon payment by
Saguaro Reserve to ASLD the estimated cost of restoration of the Temporary Drainage Channel
in lieu of physical restoration, pursuant to the provisions of Section 5.8, above.
7. General Provisions.
7.1. Notices. All notices, filings, consents, approvals, and other
communications provided for herein or given in connection herewith ("Notices") shall be valid
and effective if given, filed, made, delivered or served in a writing and delivered personally or
sent by regular mail and by registered or certified United States Postal Service Mail, return
receipt requested, postage prepaid to:
If to Town:
Town Manager
Town of Maran a
11555 West Civic Center Drive
Marana, Arizona 85653
Drainage Agreement 08/14
Page 10 of 17
With a copy to:
Town Attorney
Town of Maran a
11555 West Civic Center Drive
Marana, Arizona 85653
If to ASLD:
Arizona State Land Department
1616 W. Adams
Phoenix, Arizona 85007
Attn: State Land Commissioner
With a copy to:
Office of the Attorney General
Natural Resources Section
1275 W. Washington,
Phoenix, Arizona 85007-2926
Attn: Chief Counsel
If to Saguaro Reserve:
Saguaro Reserve LLC
Attn: Douglas Hare
9395 W. Lambert Lane
Marana, AZ 85653
With a copy to:
Empire Land LLC
Attn: Jon Curtis
3536 Concours S1. Ste 300
Ontario, CA 91764
or to such other addresses as such Parties may from time to time designate in writing and deliver
in a like manner. Any such change of address notice shall be sent to the Parties at their current
addresses as stated above or as modified hereafter, and shall be effective ten (10) days after such
notice is given. Notices given by mail, in the manner set forth above, shall be deemed delivered
seventy-two (72) hours following deposit, postage prepaid, with the U.S. Postal Service.
7.2. Waiver. No delay in exercising any right or remedy shall constitute a
waiver thereof, and no waiver by any Party ofthe breach of any covenant or condition of this
Drainage Agreement shall be construed as a waiver of any preceding or succeeding breach of
the same or any other covenant or condition of this Drainage Agreement. No waiver shall be
effective unless it is in writing and is signed by the Party asserted to have granted such waiver.
7.3. Enforcement.
7.3.1. Default. If any Party breaches any provision of this Drainage
Agreement, the non-defaulting Parties shall be entitled to all remedies available
at both law and in equity, including specific performance.
Drainage Agreement 08/14
Page 11 of17
7.3.2. Governing Law. This Drainage Agreement is entered into in
Arizona and shall be construed and interpreted under the laws of the State of
Arizona.
7.3.3. Jurisdiction and Venue. The Parties agree that venue for any
action commenced in connection with this Drainage Agreement shall be proper
only in a court of competent jurisdiction located in Maricopa County, Arizona,
and the Parties hereby waive any right to object to such venue.
7.3.4. Arbitration. Pursuant to A.R.S. 9 12-1518(B) the Parties agree to
utilize any arbitration that is required under applicable court rules.
7.3.5. Costs and Attorney Fees. Each Party shall bear its own costs
and attorneys' fees, if any, incurred in the negotiation, drafting, and
implementation of this Drainage Agreement. Ifany Party resorts to legal action
as the result of a breach or default under this Drainage Agreement, the prevailing
Party shall be entitled to recover reasonable attorneys' fees in addition to the
amount of judgment, costs and other expenses as determined by the court. In the
event a Party is represented by the Arizona Attorney General's Office or other
salaried or staff attorney, that Party's reasonable attorneys' fees shall be
calculated based upon a rate equal to the reasonable hourly rate for comparable
work and attorney experience in the private sector in Maricopa County, Arizona.
7.4. Construction. Captions and paragraph headings used in this Drainage
Agreement are for convenience only, are not a part ofthis Drainage Agreement, shall not be
deemed to limit or alter any provisions of this Drainage Agreement, and shall not be deemed
relevant in construing the Drainage Agreement.
7.5. Entire Agreement. This Drainage Agreement, together with all
Exhibits attached hereto (which are incorporated herein by this reference), constitutes the entire
agreement between the Parties pertaining to the subject matter hereof, and shall not be enlarged
or amended except in the manner provided in Section 8.6. All prior and contemporaneous
agreements, representations and understandings ofthe Parties, oral or written, other than those
specifically incorporated herein by reference, are superseded by and merged in this Drainage
Agreement.
7.6. Binding Effect; Amendments. This Drainage Agreement shall be
binding on and inure to the benefit of the successors and permitted assigns of the Parties. This
Drainage Agreement may not be assigned, in whole or in part, without the prior written
approval of ASLD. This Drainage Agreement may only be modified by a written agreement
executed by all Parties whose interests are materially affected by the modification.
7.7. Severability. If any provision of this Drainage Agreement is declared
void or unenforceable, the provisions shall be severed from this Drainage Agreement, which
shall otherwise remain in full force and effect, provided that the overall intent of the Parties is
not materially vitiated by such severance.
Drainage Agreement 08/14
Page 120f17
7.8. Further Acts. Each Party agrees 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 carry out fully the intent and purpose of this Drainage Agreement.
7.9. Cancellation. ASLD may terminate this Drainage Agreement pursuant
to A.R.S. ~ 38-511 or any successor statute within three years after its effective date if any
person significantly involved in initiating, securing, drafting or creating this Drainage
Agreement is an employee or consultant to any other Party to the Drainage Agreement.
7.10. Inspection and Audit,< Pursuant to A.R.S. ~~ 35-214, 35-215 and 41-
2548, and any successor statutes, all books, reports, files, accounts data and other records
relating to this Drainage Agreement shall be subject at all reasonable times to inspection and
audit by any Party for a period of five (5) years after termination ofthis Drainage Agreement.
Such records shall be produced at the Auditor General's Office or at the requesting Party's
principal office within a reasonable time after a request for inspection and/or audit is made.
7.11. Equal Opportunity/Non-DiscriminatioD~ The Parties agree to comply
with applicable federal or state laws relating to equal employment opportunity and non-
discrimination, including the Americans with Disabilities Act.
7.12. Governmental Powers. Except as explicitly provided herein, nothing in
this Drainage Agreement shall be interpreted or applied to require, restrict, or limit, in any
manner whatsoever, any legislative, discretionary or other approvals by Town or ASLD related
to properties described herein. Every payment obligation of ASLD and of Town under this
Drainage Agreement is conditioned upon the availability of funds appropriated or allocated for
the payment of such obligation. Nothing in this Drainage Agreement shall require any Party to
act contrary to any local, state or federal statute, rule, or regulation, including, but not limited to,
the Anti-Deficiency Act or the state or tribal equivalent.
7.13. Time of Essence; Computation. Time is of the essence for the
performance of all conditions and obligations under this Drainage Agreement. In computing
any period of time under this Drainage 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 shall 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 Drainage Agreement
shall be deemed to expire at 5:00 p.m. (Phoenix time) on the last day of the applicable time
period provided herein.
7.14. Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, Acts of God, inability to obtain labor or materials or reasonable
substitutes therefore, governmental restrictions, governmental controls, governmental inaction
when necessary applications or filings have been made and the governmental authority is
required to act, judicial orders, enemy or hostile governmental action, civil commotion, fire or
other casualty, and other causes beyond the reasonable control of an obligated party shall excuse
the performance by such party for a period equal to any such prevention, delay or stoppage;
Drainage Agreement 08/14
Page 13 of17
provided, however, that should any such delay exceed thirty (30) consecutive days in duration,
such Party shall notify the other Parties in writing and keep the other Parties reasonably
informed as to the progress of such delay's resolution. It is expressly agreed that any
construction time limit provision contained in this Drainage Agreement or otherwise shall be
extended for the same period oftime lost by the causes hereinabove set forth.
7.15. No Lien on State Land. All Parties acknowledge that this Drainage
Agreement shall not be recorded and that no obligation of ASLD or of any of ASLD's
successors or assigns pursuant to this Drainage Agreement shall result in the establishment of a
lien on or the granting of any interest in any State Trust Land, including but not limited to Parcel
A.
7.16. Reports, Information and Data. All Parties shall be entitled to receive
copies of any plans, reports, information, data, computer data elements and software prepared by
the other Parties or their respective contractors or agents in connection with the Right of Entry,
the Right of Way, and/or the construction of the Temporary Drainage Channel, the
Permanent Drainage Channel, or other improvements to be constructed pursuant to this
Drainage Agreement. Subject to applicable State and Federal laws and regulations, the Parties
shall have full and complete rights to reproduce, duplicate, disclose and otherwise use all such
information. In doing so, each party shaH give credit for the contribution of the others.
7.17. Exhibits and References. The following Exhibits are attached hereto
and incorporated by this reference as though fully set forth herein.
EXHmIT DESCRIPTION
Exhibit A Parcel A Legal Description
Exhibit B Saguaro Springs Parcel Legal Description
Exhibit C Temporary Drainage Channel Specifications and Location
Exhibit D CAP Parcel Legal Description
Exhibit E Letter from Central Arizona Project
Exhibit F Letter from United States Army Corps of Engineers
Exhibit G Temporary Right of Way Parcel Legal Description (Cross Hatched
Area)
Exhibit H Right of Entry
Exhibit I Stamped Engineer's Letter regarding removal from 100 year floodplain
Exhibit J Planning Parcel Legal Description
Exhibit K Special Land Use Permit
Exhibit L Permanent Drainage Channel Proposed Design and Specifications
7.18. Counterparts. This Drainage Agreement may be executed in
counterparts, each of which shaH be deemed an original but all of which together shaII constitute
one and the same instrument.
Drainage Agreement 08/14
Page 140f17
7.19. Signature Authority. By signing below, the signer certifies the authority
to enter into this Drainage Agreement and has read the foregoing and agrees to accept the
provisions herein.
IN WITNESS WHEREOF, the Parties have executed the foregoing Drainage
Agreement as of the day and year first above written.
ASLD:
ARIZONA STATE LAND DEPARTMENT,
an agency of the State of Arizona
By:
State Land Commissioner
STATE OF ARIZONA)
) ss.
County of Maricopa )
On 2006, before me, personally appeared , personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s)or the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
Drainage Agreement 08/]4
Page 15 of 17
,
,
F MARANA, ARIZONA, a municipal corporation
,
County of Pima
On ~52oo6:b~fore me, personally appeared_EJ. \-\ OY\~~, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the
person(s)or the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
G~~o.~
Notary Public
My commission expires:
t::e'b('\).~~,\ ~d-Q>~
0FF1CIAl SEAL
TIMOTHY A. MATTIX
NOTARY PUBLIC
PIMA COUNTY, AFlIZO,\I!\
MY COMMISSION EXf'!,'! ,
FEBRUMY 22, 2009
Drainage Agreement 08/14
Page 16 of17
SAGUARO RESERVE:
Saguaro Reserve LLC, a Delaware Limited Liability Company
By: Empire Land, LLC, its manager
By Empire Partners " its manager
/1" "
STATE OF ~) "./J.., . 0 . ,
County of ~~ ) IVJ~
o ~3 2006, before me, personalIy appeare~~ !ll~g.son~l1Y known
..!Q...!IlY (or proy to me on the basis of satisfactory evidence) to b;;;t; person(s) whose n~e(slls/are
subscribed to the within instrument and acknowledged to me that ~/she/they executed the same in
~lher/their authorized ct;lpaci~(ies), and that by liliilher/their signature(s) on the instrument the
person(s)or the entity on behalf of which the person(s) acted, executed the instrument.
By:
:cu
WITNESS my hand and official seal.
{I~~
Notary public.t (J' 1//
l/
My commission expires:
~--/~- 0 <6
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~ Commission # 1484016
i,,; '. Nota. ry PublIc . CaHfomto ~
.~ San Bernardino County =
MvComm. ExpMMay IS. 2
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Drainage Agreement 08/14
Page 17 of 17
Exhibit A
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Exhibit B
DESCRIPTION
OF SAGUARO SPRINGS
TO THE TOWN OF MARANA
Stantec Consulting Ine.
201 North Bonita Avenue Suite 101
TUGOn AI. 85745.2999
Tel: (520) 750-7474 Fax: (520) 750-7470
stantec.com
Stantec
All that portion of Blocks 1 thru 10 and A thru D along with Lots 1-9 and A and B, as
shown on the Block Plat recorded in Book 58 of Maps and Plats, Page 23 of Pima
County Arizona.
Said parcel contains 765.69 acres, more or less.
Together with:
All that parcel as described in Docket 12208, Page 1961, Pima County Records together
with that portion of Twin Peaks Road lying South of and contiguous with said parcel,
being a portion of Section 13, Township 12 South, Range 11 East, Gila and Salt River
Meridian, Pima County, Arizona.
Said parcel contains 21.69 acres, more or less.
Nathan L Gardner, RLS
October 28, 2005
Prepared for and on behalf of Stantec Consulting Inc.
Project Number: 185621934 - 215
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ANNEX PARCEL PER
DOCKET 12208 PAGE 1961
PIMA COUNTY RECORDS
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TWIN PEAKS ROAD
SAGUARO SPRINGS
BLOCKS , THRU 10 & A THRU D
AND LOTS 1 THRU 9 &' A AND B
BOOK 58 PAGE 23 OF MAPS AND PLA TS
lHIS SKEItH IS FOR EXHIBIT PJRPOSES OHLY AND DOES HOT October, 2005
COHsmuTE A PROPERlY BOONDW SURVEY. 185621934 - 215
CGOfll/Project
EXHIBIT OF SAGUARO SPINGS BK 58 PG 23 AND ANNEX
T12S. RIlE AND 12E. GILA AND SALT RIVER MERIDIAN
PIMA COUNTY, ARIZONA
figure No.
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Legal Description Exhibit
EXHIBIT OF SAGUARO SPRINGS
Exhibit C
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Exhibit D
529595 N 8950'50" E (e)
VlfJ SeCT/ON LINe /OJfOUND AVRA VALLey ROAfJ I
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II L.16, O'.fRHEAO fLEC [SUI
No. 18-9/636
2655.50 (e) 2645.94 (R)
N 89'52'04" E (C)
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No. 18-91636
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V:\52856\oclive\ 1856219.34\civil\drowing\exhibil\Slole Lond\606.1,dwg
2006-08-16 06:40PM fly: rslucki
Stantec Consulting
201 North Bonito Ave
Tucson AZ. U.S.A.
85745-2999
Tel. 520.750.7474
Fox. 520.750.7470
www.stantee.eom
CAP/BaR PROPERTY
08/16/2006
1856219.34
Cr.enl/Projeet
SAGUARO RESERVE. LLC
BaR/CAP PROPERTY DESCRIPTION
T-12-S. R-l 1 -E. G&S.R.M
figure No.
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March 9, 2006
Douglas Hare
Vice President
E~,,'PIRE Companies
9395 W. Lambert Lane
Marana, AZ 85653
Subject
Review of the Saguaro Springs Development and the Twin Peaks State Land
Preliminary Drainage Study for potentia! impact to Central Arizona Project
canal property
Dear Mr: Hare:1
Thank you for providing Central };rizona Water Conservation District {CAWeD) the
necessary documentation needed to evaluate potential drainage impacts from your
development to Central Arizona Project (CAP) canai property during our March 7, 2006
meeting. After reviewing the Preliminary Drainage Study Twin Peaks State land
(Volume 1) prepared by Stantee on November 14,2005, CAWCD is satisfied that future
drainage flows onto CAP property will not exceed existing conditions, CAWeD is also fully
supportive of the design of the drainage channel and the energy dissipater, located just
east of our property line at the terminus of the project.
As per our conversation during the March 7, 2006 meeting, the construction of these
facilities wili not require access onto CAP pruperty and any modification to the plans
presented to CAweD that increase drainage flows onto CAP property will be brought back
to CAWCD for review.
Thank you again for giving us the opportunity to review your plans and provide comments.1
Sincerely,1
~t1~.
Tom Fitzgerald
L13nds Administrator
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Exhibit F
JEPARTMENT OF THE ARMY
LOS ANGELES OISTRlCT. CORPS OF ENGINEERS
ARLZOHA-HEVAOA AREA OPFlCE
36.J6 NORTH CENTRAL AVENUE. SUITE 1&0
PHOENIX. ARLZOHA 85012.1935
Urb~~
I :~:-;;~N OF':
May 15, 1997
Office of the Chief
Regulatory Brlllch
Best IT, LLC
C/O Urban Engineering
A TTN: Jeff Blau
877 South Alvernon Way
Tucson, Arizona 85711
File Number: 974-0JS7-RJD
Dear Mr. Blau:
. ___ ..__ 4Reference is made to-yo~~ application-a:nclJ o'r-letter of-April-28;-1 ~r9Tin';;b.~~hY;~~-_-=l
inquired as to whether or not a Section 404 permit is required from (he U.S. Army Corps
of Engineers to develop the Saguaro Springs subdivision (Sections 7, 8, 17, 18, and 19,
TI2S, RI2E and Sections 11, 12, 13, and 14, T12S, Rl1E), Marana, Pima County, Arnona.
Based on the information furnished in your application and/or letter (referenced above)
and a site visit by one of my Staff, we have determined that your proposed project is not
subject to our jurisdiction under Section 404 of the Clean Waxer Act. Since there are no
Waters of (he United States wlthin the aforementioned proposed project area, 00 Section
-10+ permit is required from our office. Mll1made drainage features were observed to have
been constructed in upland areas to collect sheet flow and irrigation tail water, however,
such features are rypically nor regulated under Section 404 of the Clean Warer Act. No
jurisdictional Waters were located within the area shown on the enclosed aerial
photographs.
The receipt of your application and/or letter is appreciated. If you have questions,
please cont;J.cr Robert J. Dummer at (602) 640-5385 x 224.
Sincerely,
~~
f
Cindy Lester
Chief, Arizona Section
Regulatory Branch
Enclosure
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--7i
Exhibit G
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Exhibit H
^
Exhibits 'H' and 'K' to the Saguaro Springs Drainage Channel.
Agreement are pending and will be provided at a later date. For
more information, contact the Marana Town Clerk's Office at
(520) 382-1999.
.)
Exhibit I
Stantec Consulting Ine.
20) North Bonita Avenue Suite 101
Tucson Al 85745-2999
Tel: (520) 750-7474 Fax: (520) 7$0-7470
stantec.com
Stantec
July 6, 2006
File: 185620394-177
Tel: (520) 975-8962
Fax: (520) 616-0078
George Wik
Saguaro Reserve, LLC
9395 W. Lambert Lane
Marana, AZ 85653
Reference: Twin Peaks State Land
Dear George:
It is our strong belief that the proposed channel across the State Land parcel, as discussed in
the Stantec study "Preliminary Drainage Study - Twin Peaks State Land (Volume 1)" dated
November 14, 2005, when constructed, would remove the State Land immediately north of the
channel and south of Avra Valley Road from the 100 ,Year FEMA Floodplain through the
CLOMR/LOMR process.
FEMA would need to review and approve the CLOMR and LOMR requests, and FEMA may
seek modifications to the channel design or may, though unlikely, deny the request. Stantec
can not guarantee FEMA approval of the CLOMR/LOMR, nor removal of State Lands from the
100 Year FEMA Floodplain.
Should you have any questions, please contact me at your convenience.
Sincerely,
KDP:jap
STANTEC CONSULTING INC.
Kenneth D. Perry, PE
Senior Associate, Urban Land
koerry@stantec.com
Cc : Rick Murillo, Stantec
John Partridge, Stantec
Ryan Stucki, Stantec
Douglas Hare, Saguaro Reserve
V:\52856laclive\ 185620393\ 185620394IcOl'respondencl!'~1t _ wik.doc
Exhibit J
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PARCEl. NfJIIBER
2tStt0550
LECAl. OESCRlPD
. SEe " trss 1fD' ~ 1fO,J1J;94 A
. SEC'
W TWIN PEAKS RD
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V;\~m6\odjy.\ t$5&.2! 9,H\tlvll\drowitlg\elfhibil\SMll lond\Propoaol Areo.dwg
20011-11.-11 10:22AM By: rducki
Sta.ntec Consulting
20 1 North Boni(a Ave
TucscnAl u.s.A.
85745-2999
Tel. 520.750.7474
folt. 520.750.7470
wlitW.stontec.coM'\
AAIil!I..:_ 2006
18;:>O,tUU4
..
CfilInt/l"rol=
EMPIRE
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TWIN PEAKS AZ
STATE TRUST PARCEL
Exhibit K
AUG. 31. 2006 11: 56AM
ATTORNEV GENERAL
NO. 5143 P. 2
STATE LAND DEPARTMENT
STATE OF ARIZONA
SPECIAL LAND USE PERMIT
Permit No. 23-
Site I.D.:
THIS SPECIAL LAND USE PERMIT ("Permit") is enter~d into by llnd between the State
of Arizona, Arizona State Land Department ("Permittor"), through the State Land
Commissioner ("Commissioner") and
('~Permittee"). In consideratioD of the payment of a tee and of performance by the parties
of each of the provisioDs set forth berein, the parties agree as follows:
ARTICLE 1
SUBJECT LAND
1.1 Permittol' grants to Permittee a Don-exclusive license for special use on the
State Land described in Appendix A a1tached hereto ("the Subject Land").
1.2 Permittee makes use of tbe Subject Land "as is" and Permittor maltes no
express or implied warranties as to the physical condition of the Subject Land.
ARTICLE 2
TERM
2.1 The term of this Permit coxnmences on , ("Commencement Date")
and expires on , ("Expiration Date"), unless sooner canceled or terminated as
provided herein or as provided by law. As a license, this Permit expires on the date
indicated and carries no holdo'Ver rights, nor is it assignable or saleable.
2.2 This Permit represents personal property of Permittee and does not survive
the death of or termination by Permittee.
23 - CommuulentloD Permit OSI05 (Rl.'\', mOOS)
wly
...,....._.~,,~_...._,~. ".-."...---=<..=.....->--."'.....,;.-."....-.,-."
AUG. 31. 2006 11:56AM
ATTORNEV GENERAL
NO. 5143 P. 3
ARTICLE 3
FEE
3.1 Permittee agrees to pay as a fee for this Permit the following amount, due
and payable in advance on the Commencement Date, and each year thereafter On the
anniversary of the Commencement Date:
3.2 If Permittee should fail to pay the fee when due, the Commi.ssioner at his
option, may cancel this Permit or declare the same forfeited.
3.3 Permittee shidl pay a penalty of five (5%) percent of any amount of the fee
that is delinquent, and .sball pay daily interest on delinquent amounts plus l>enalty at the
rate set by the Arizona State Treasurer, according to law.
3.4 The State of Arizona shall be forever wholly absolved from any liability for
damages which might result to the Permittee herein on account of this Permit having been
forfeited for dOnpayment of fees due thereunder priodo tbe expiration of the full time for
which it Is issued.
ARTICLE 4
PERMITTED US~
4.1 As a license, this Permit grants authority only for the following specific
purpose and temporary structures; any other use by the Permittee of the land described
herein, or. of any of the products therefrom, eX<:ept as provided below, is expressly
prohibited: Placement, mailrtenallce and opera#on of wireless telecommulrication antenna
facility on existing telecommunications monopoleltower {electric power transmission pole],
and related equipment cabinets and facilliies on Of heww ground, all wit/,in existJng lease
fRight of Way} No. . The !lOlder of Lease [Right of Way] No. J
(Lessee/Grantee) is tl,e owner of aflY existing monopole/tower,
and any replacement monopole/tower, located on Subject Land. Co-location of other
compatible and similar communication users permitted only with expreSt, written
autl,orization of Permittor.
4.2 This Permit is subject to any leases, rights of way, and permits which may
exist, and a.ny and all present commitments In connection with those leases and permits.
Permittee shall in no way interfere with the peaceful possession and use of the Subject
Land by a valid surface leaseholder or permittee of the Subject Land.
4.3 Perxnittor resetves the right to grant rights of way and easements over,
across, or upon the lands embraced in this Permat for public highways, railroads,
tramways, telephone, telegraph and transmission Jines, pipe lines, irrigation works, flood
2' - Communication l'ermil 05(05 ~ev. 1/2005)
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ATTORNEY GENERAL
NO. 5 14 3 P. 4
control, drainage works, logging and other purposes, and this Permit is issued subjeet to all
existing rights of way.
4.4 Permittee shall Dot cause nor grant permission to another to cause any waste
in or upon the Subject Land. Permittee, its employees and agents shall not cut, consume or
remove any timber, or standing trees that may be upon the Subject Land, withou.t the prior
written COnsent of Permittor, except that Permittee may cut wood for fuel for domestic uses
and authorized impro'Vexnents on the Subjeet Land without such prior consent. Nothing
herein shall permit the cutting of saw timber for any purpose.
ARTICLE 5
CONFORMITY TO LA ~
5.1 Permittee shall not use or permit tbe Subject Land to be used in any manner
that is not in conformity with all applica.ble Federal, State, County and municipal laws,
ru.les and regulations, unless Fermittor determines and advises Permittee in writing
otherwise.
5.2 This Permit shall terminate if Permittee is unable to or fails to obtain or loses
any governmental approval tbat Is prerequisite to the special use for which this Permit is
issued, or that is necessary to construct, maintain or operate any facilities on the site in
conneetion with that special use.
ARTICLE 6
IMPROVEMENTS
6.1 Any and all structures placed by Permittee upon the Subject Land shall be
temporary and remo'Vable, and sball be removed upon expiration, cancellation, revocation
or termination of this Permit. The placement of permanent improvements upon the
Subject Land by Permittee is expressly prohibitedj any permallent improvements so placed
upon the Subject Land by Permittee shall be removed by Permittee without damage to the
Subject Land or at the option of PermittaT shaH be forfeited and become the property of
the State. Permittee shall remain liable for the cost of removal of all improvements and tor
restoration of the Subject Land, as set forth more fully in Article 13.
6.2 If at any time after the execution of this Permit it is shown to the satisfaction
of the State Land Commissioner that the Permittee herein has misrepresented, by
implication or otherwise tbe value of any reimbursable improvements placed upon the land
herein embraced and Permittee herein not being the owner of said improvements at the
time ot the execution of this Permit, this Permit shaD be null and void, at the option of the
State Land Commissioner, Insofar as it relates to the land upon which said improvements
are situated.
23 - Commlllli~Ntion l',rmil 05/05 (ll.,v, 1/2005)
-3-
AUG. 31. 2006 II: 56AM
ATTORNEY GENERAL
NO. 5143 P. 5
ARTICLE 7
CANCELLATION. TERMINATION & ABANDONMENT
7.1 If at any time after the execution of this Permit, it is shown to the satisfaction
of the Commissioner, that there has been fraud or collusion upon the part of Permittee to
obtain or hold this Permit at a lesser Cee tban its value, or through sucb fraud llnd collusion
a former permittee of the Subject Land has been allowed to escape payment of the Cee due
for tbe use of said land by the former permittee, this Permit shall be null and void, at the
option of the Commissioner, insofar as it relates to the land affected by said fraud or
collusion.
7.2 Permittee shan give Permittor 25 days Dotite in writing in advance of the
abandonment of said Subject Land or termination of tbese presents.
7.3 In the event any land affected by this Permit is reclassified by order of the
State Land Commissioner, or sold, this Permit will automatically cancel as of the effective
date of the reclllssification or sale.
7.4 If Permittee should raU to keep tbe covenants and conditions herein set forth,
tbe Commissioner at his option, may cancel said Permit.
7.5 This Special Land Use Permit shall be terminable at will with 25 days written
notice.
7.6 This contract is subject to cancellation pursuant to A.R.S. ~ 38-511.
ARTICLE 8
INSURANCE AN}) INDEMNITY
8.1 Except to tbe extcnt occurring or existing prior to the Commencement Date
hereof, Permittee hneby expreSSly agrees to indemnify and bold Permittor harmless, or
cause Permittor to be indemnified and held harmless, from and against all liabilities,
obligations, damages, penalties, claims, causes of action, costs, charges and expenses,
ineludlng attorney's fees and costs, which may be imposed upon or incurred by or asserted
against Permittor by reason of any: (i) ac:cident, injury or damage to any person or
property occurring on or about the Subject Land or any portion thereof; (ii) use, non-Use
or conditiOn of the Subject Land or any portion thcreof; or (iii) failure on the part of
Permittee to perform or comply with any of the provisions of tbis Permit; ex~ept thRt none
of the forcgoing shall apply to Permittor's intentional conduct oX' Active negligence Dor to
the intentional conduct or active negligence of Permittor's agents, servants, contradors or
subcontractors. If any action or proceeding is brought against Permittor by reason of any
such occurrence, Permittee, upon Permittor's written request and at Permittee's expense,
will resist and defend such action or proceeding, or cause the same to be resisted eithet by
counsel designated by Permittee or where such occurrence is covered by liability insurance,
by eounsel designated by the insurer.
23 - CVll1mllnictliOh PermIt 05/05 (Rev. 112005)
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AUG. 31. 2006 11: 57AM
ATTORNEY GENERAL
NO. 5143 p, 6
8.2 Pennittee, at its expense, shall at all times during the Term of this Permit,
and any extension thereof, maintain in fun force a policy or policies of commercial genera.l
liability insurance, including bodily injury, property damage, personal injury and broad
form contractual liability coverage, written by one or more duly licensed (or approved non-
admitted) insurers in the State of Arizona with an "A.M. Best" rating of not less than. A.
vn~ and each policy shall be written on an occurrence basis, which insure Permittee and
Permittor against liability for injury to persons and property and death of any person or
persons occurring in, on or about the Subject Land, or arising out of Permittee's
maintenance, use and occu.pancy thereof. All (Iommercial general liability and personal
property damage policies shall contain a pro'Vision that Permittor, named as an additional
insured, shall be entitled to recovery under the policies for any loss occasioned to it, its
servadts, agents and employees by reason of the negligence or wrongdoing of Permittee, its
servants, agents and employees. Further, the policies shall pro'Vide that their conrage is
prironry 0'V61' any otber insurance coverAge available to the Permittor, its servants, agents
and employees as relates to the negligence of Permittee. AU policies of insurance must
contnin a provision or endorsement that the company writing the policy shall Give to
Permittor thirty (30) days notice in writing in advance of any cancellation or lapse, or the
effective date of any reduction in coverage.
8.3 The insurance as described in Paragraph 8.2 herein shall afford protection
not less than:
Gcneral Aggregate:
Personal Injury:
Each Occurrence:
Blanket Contractual
Liability - Written
and Oral:
Fire Damage (Any
one fire):
$2,000,000.00
$1,000,000.00
$1,000,000.00
$1,000,000.00
$500,000.00
in combined single limits and each liability policy or polides shall be written on an
occurrence basis; provided, however, that the minimum amount of coverage for the above
sball be adjusted upward on Permit tor's reasonable request to be made no more frequently
tban once every two (2) years so that such respecti'Ve minimum amounts of co'Verage shall
not be less than the amounts then required by statute or generally carried on similarly
improved real estate in the County herein described, whichever is grenter. If at any time
Permittee fails, neglects or refuses to cause such insurance to be provided and maintained,
then Permittor may, at its election, procure or renew such insurance and any amounts paid
therefore by Permittor shall be an additional amount due at the next date Rent is due and
payable.
23 - Communication Pttmll OSfOS (RCf. 712005)
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AUG. 31. 2006 11:57AM
ATTORNEY GENERAL
NO. 5 143 P. 7
8.4 Notwithstanding anything to the contrary in this Article, Permittee's
obli&ations to carry the insurance provided for herein may be brought within the coverage
of a so-caUed blanket policy or policies of insurance maintained by Permittee, provided,
however, that the coverage afforded Permlttor will not be reduced by reason of the use o(
such blanl~et polley of insurance.
8.5 Permittee shall furnish Permittor with certificates of insurance (ACORD
form or equivalent approved by Permittor) and shall at all times during tbe term of this
Pennit maintain with Permittor a eUl'rent certificate of insurance. The St;ate of Arizona,
Arizona State Land Department, the Permit number, and location description of the
subject parcel are to be noted on the certificate of insurance. Permittor reserves the right
to view the complete, certified copies of all insurance policies and endorsements required
by this Permit at any time at Permittee's headquarters. In addition, if any claim made by
Permittor is rejet\ted by Permittee's insurance company, Permittor shall have the right to
view the complete, certified copy of the applicable policy at Permittee's area headquarters.
Lastly, permittor shall have the right, at any time, to request a representation letter from
Permittee's insurance agent in relation to any particular co'Vcrage referenced in this
Permit.
ARTICLE 9
ENVIRONMENTAL MATTERS
9.1 For purposes of this Permit, the term "En'Vironmental Laws" shall include
but not be limited to any relevant federal, state or local environmental laws, and the
regulations, rules and ordinances, relating to en'fironmental matters, and publications
promulgated pursuant to the local, state, and federal laws and any rules or regulations
relating to environmental matters. For the purpose of this Permit, the term "RegulAted
Substances" shall include but not be limited to substances defined as "regulated
substance," "solid waste," "hazardous waste'" "hazardous materials," "hazardous
substances," "toxic materials, or "toxic substances," "inort materials," "pollutants," "toxic
pollutants, II "herbicides, II "fungicides,.. "rodenticides," "insecticides," "contaminants, II
"pesticides," "asbestos," "environmental nuisance," "<:riminallittering," or "petroleum
products" as defined in Environmental Laws.
9.2 Permittee shall strictly comply with all Environmental Laws, in eluding,
without limitation, water quality, air quality, and handling, transportation, storage,
treatment, or disposal of any Regulated Substance on, under, or from the Subject Land.
Without limiting the foregoing, compliance indudes that Permittee shall: (1) comlJly with
all reporting obligations imposed under Environmental Laws; (2) obtain and maintain all
permits required by Environmental Laws, and provide a copy to the Permittor within ten
business days of receipt of the permit; (3) provide copies of all documentation required by
Environmental Laws to the Perolittor within ten business days of Permittee'! submittal
and/or receipt of the documentation; (4) during the term of the Permit, provide copies of all
information it receives or obtains regarding any and all environmental matters relating to
the Subject Land, including but not limited to environmental audits relating to the Subject
2~ - COllllllunlcation Petmil 05/05 (ROY, 7flOOS)
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AUG. 31. 2006 11:57AM
ATTORNEY GENERAL
NO. 5143 P. B
Land regardless of the reason for which the information was obtained or whether or not
the information was required by Environmental Laws; (5) prevent treatment, storage,
disposal, handling or use of any Regulated Substances by Permittee and its agents,
employees or contractors, within the Subject Land without prior written autborization
from the Permittor. permtttee shall use commercially reasonable efforts to preclude use of
Pernlittee's portion of tbe Subject Land by unauthorized persons.
9.3 Permittee at all tilUes shall employ or designate an existing employee (the
"Designated Compliance Officer") who is responsible for knowing all Environmental Laws
affecting Permittee and Permittee business and monitoring Permittee's continued
compliance with applicable Environmental Laws. Upon request by the Permittor,
Permittee shall make the Designated Compliance Officer available to discuss Permittee's
compliance, llnswer any questions, and provide such reports and confirming information as
the Permittor may reasonably request.
9.4 At any time, the Permittor may request the Permittee to provide an
cn'Vironmentlll audit of the Su.bject Land performed by an Arizona registered professional
engineer or an Arizona registered geologist. Permittee shall pay the entire cost of the audit.
9.S At any time, during the term of the Permit, the Permittor may require
Permittee to obtain one Phase I environmental assessment of the Subject Land performed
by an Arizona registered profeSsional engineer or an Arizona registered geologist. If,
based upon the Phase I environmental assessment or its own independent investigation, tbe
Permittor identifies any possible violation of Environmental Laws or the terms of this
Permit by Permittee or its agents, employees, or contractors, the Permittor may require
Permittee to conduct additional environmental assessments as the Permittol" deems
appropriate for thc purpose of ensuring that the Subject Lands are in compliance with
Environmental Laws. The Phase I assessment, or any other assessment required by the
PermJttor, shall be obtained for the benefit of both Permittee and the Permlttor. A copy of
the Phase I report shall be provided both to Permittee and the Permittor. The Permittor, in
its sole discretion, sball have tbe right to require Permittee to perform additional
assessments of any damage to tbe Subject Land arising out of any violations of
Environmental Laws by Permittee or its agents, employees or contractors. If Permittee
fails to obtain any nssessments required by the Permittor, Pennittee shall pay the entire
costs of any and all assessments required by the Permittor, notwithstanding the expiration
or termination of the Pel"rnit.
9.6 Permittee shall defend, indemnify and hold the Permittor harmless from and
against any and alllfability, obligations, losses, damages, penalties, claims, environmental
response and cleanup costs and fines, and actions, suits, costs, taxes, charges, expenses and
disbursements, including legal fees and expenses of whatever kind or nature (collectively,
"claims" or t1damages") imposed on, incurred by, or reserved against the Permittor in any
way relating to or arising out of any nonwcompliance with any Environmental Laws by
Permittee or its agents, employees or contractors, the existence or presence of any
Regulated Substance, on, under, or from the Subject Land due to the ads or omissions of
1] - COl1lmllnl6ulon Permit o,ro~ (Rev. m.OOS)
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AUG. 31. 2006 11:57AM
ATTORNEY GENERAL
NO. 5143 P. 9
Permittee or its agents, employees or contractors) and any claims or damages in any way
relating to or arising out of the removal, treatment, storage, disposition, mitillation) cleanup
or remedying of any Regulated Substance on, under, or from the Subject Land due to the
acts or omissions of Permittee Or its agents, elnployees, contractors or subcontractors.
9.7 Thill indemnity shall survive the expiration Of termination of this Permit
and/or transfer of an or any portion of the Subject Land and shall be governed by the laws
of the State of Arizona.
9.8 In the event any action or claim is brought or asserted against the Permittor
which is or may be covered by this indemnity, the Permittee shall funy participate, at
Permittee's expense, in the defense of the action or claim iocludine but not limited to the
fe>llowing: (1) the conduct of any required cleanup, removnl e>f rem.edial actions and/or
negotiations, (2) the conduct of aDY proceedings, bearings, and/or litigation, and (3) the
negotiation and finalization of any agreement Ok' settlement. Fe>r indemnified matters, all
final decisions concerning the defense shall be reasonably approved by Permittor. The
Permittee's obligations to participate in the defense under this Section shall survive the
expiration or termination of the Permit.
9.9 Prior to the termination of the Permit and in addition to tbose obligations set
forth in Article 13.2, Permittee. shan restore the Subject Land by removing any and all
Regulated Substances deposited by Permittee or its agents, employees or contractors. In
addition) the restoration shall include, but not be limited to, removal of all waste and debris
deposited by tbe Permittee. If the Snbject Land or any portions thereof are damaged or
destroyed from tbe existence or presence of any Regulated Substance due to the acts or
omissions of Permittee or its agents, employees or contractors, or if the Subjed Land or
any portions thereof are damaged or destroyed in llny way relating to or arising out of the
removal, treatment) storage, disposition, mitigation, cleanup or remedying of any
Regulated Substance due to the acts or omissions of Permittee or its agents, employees or
contractors, the Permittee shall arl'ange, at its expense, for the repair) removal,
remediation, restoration, and reconstruction to the Subject Land to the original condition
existing on the date tbat the Permittee first occupied the Subjett Land, to the satisfaction of
the Permittor. In any event, any damage, destruction. or restoration by Permittee sball not
relieve Permittee from its obligations and liabilities under this Permit. The Permittee's
restoration obligations under this Section shall survive the expiration or the termination of
the Permit.
ARTICLE 10
LICENSE: SEVERABILlTY
10.1 This Permit is a license and does not create a leaae, easement, or other estate
or right in the real property. In the event this document or any supplemental attachments
contains any wording that a court of law interprets as creating a leasehold interest, that
wording shall be void but shall not effed the remaining terms and conditions of the Permit.
:U - C~ll\mllniCllCion I'enlllt 05/05 (Rev. 71~005) .8~
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AUG, 31. 2006 11:58AM
ATTORNEY GENERAL
NO. 5143 p, 10
ARTICLE 11
USERY A TIONS; REUNOUISIIM~NTS
11.1 Permittor excepts and reserves out of the Permit hereby made, all oils, gases,
coal, ores, limestone, minerals, fossils and fertilizers of every name and description that
may be found in or upon the Subject Land or any part thereof.
11.2 Permittar reserves the right to relinquish to the United States lands needed
for irrigation works in connection with a government reclamation project, and to grant or
dispose of rights of way and sites for canals, resenroirs, dams, power or irrigating plants or
works, railroads, tramways, transmission lines, or any other purpose or use on or over the
Subject Land.
ARTICLE 12
NATIVE PLANTS AND ARCHAEOLOGICAL RESOURCES,
12.1 Permittee shall comply with the provisions of the Arizona Native Plant Law,
A.R.S. ~ 3-901 et sea., or any su~essor statutes, and with ArizoDa laws relating to
archaeological discoveries, A.R.S. ~ 41-841 et sea., or any successor statutes. Permittee
shall not disturb Slny cacti or other protected native plants nor disturb any ruins, burial
grounds or other archaeological Sires except as may be permitted by these laws. In
addition, Permittee shall notify Permittor of any prehistoric or historic archaeological
discoveries OD the Subject Land.
ARTICLE 13
:PERMITTEE SHALL PROTECT AND RESTORE SUBJECT LANn
13.1 In the event of known trespass on the Subject Land resulting in damage
thereto, Permittee shall notify Permittor and appropriate Jaw enfon:ement authorities.
13.2 Upon abandonment, cancellation, revocatioD or termination of this Permit,
Subject Land shall be restored to its original condition, to the satisfaction of the Permittor.
Such restoration shall include, but shaJJ not be limited to, removal of any and all material,
equipment, facilities, temporary structures, or debris, deposited by Permittee on Subject
Land. If Permittee fails to remove aU such material, equipment, facilities, temporary
structures, or debris within a reasonable period, as determined by the Permittor, they shall
be forfeited and become tbe property of the State, but Permittee shall remain liable for the
cost of removal of all materials and for restoration of the site.
ARTICLE 14
MISCELLANEOUS
14.1 It is understood by Permittee that the establishment of any water right, or
rights, shall be by and for the Stnte of Arizona, and no claim thereto shall be made by said
Permittee; such rights shall attach to and become appurtenant to the Subject Laod.
23 - Commll/li~.(iou PtI'mlt 05105 (Rev. 1{200S)
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AUG. 31. 2006 11: 58AM
ATTORNEY GENERAL
NO. 5143 P.11
14.2 This Permit is granted subject to all the provisions and requirements thereto~
and to the present laws relating to State Lands, and all amendments, revisions or repeals of
all existing laws, the saIDe as though they were fully set fortb herein. No provisions of this
Permit shall create any vested right in Permittee.
14.3 In the event of a dispute between the parties to this Permit, it is agreed to use
arbitration to resolve the dispute but only to the extent required by A.R.S. ~ 12-1518; and
in no event shall arbitratIon be employed to resolve a dispute which is otherwise subject to
administrative review by the Department.
14.4 In any action arising out of this Permit, the prevailing party is entitled to
recover reasonable attorneys' fees in addition to the amouot of any judgment, costs and
other expenses as determined by the court. In the ease of Permittor, reasona.ble attorneys'
fees shall be calculated at the reasonable market value for such services when rendered by
private counsel, notwithstanding that it is represeoted by the Arizona Attorney General's
Office or other s2lAried counsel.
14.5 This document is submitted for examination and shall have DO binding effect
on the parties unless and until executed by Permittor (after execution by Permittee), and a
fully executed copy is delivered to tbe Permittee.
14.6 ,Permittee shall adhere to all rules, regulations, ordinances, and building
codes as promulgated by local jurisdictions and any applicable agencies.
14.7 All of the covenaots, conditions and agreements~ attached to this Permit,
sball be, become and are a part of the Permit, the same as though set forth in full over the
signatures of the contracting parties hereto.
14.8 Every obligation of the State under this Permit is conditioned upon the
availability of funds appropriated or allocated for the payment of such obligatioo. If funds
are not allocated and available for the continuance of this Permit, this Permit m.ay be
terminated by the State at the end of the period for which funds are available. No liability
shall ac~ruc to the State in the event this provision is exerdsed, and tbe State shall not be
obligated or liable for any future payments or any damages as a result of termination
under this paragraph.
14.9 The parties agree to be bound by applicable State and Federal rules
governiog Equal Employment Opportunity, Non~discrimination and Disabilities, including
Executive Order No. 99-4.
23 - CommulIlcAlIOD Pcrmit 05105 (nev. ,/zOOS) -10-
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AUG. 31. 2006 1\: 58AM
ATTORNEY GENERAL
NO. 5143 P. 12
IN WITNESS HEREOF, the parties hereto have signed this Permit effective the day and
year set forth previously herein.
STATE OF ARIZONA, PERMITTOR
Ari2:ona State Land Commissioner
PermiCtee
By:
Date
By
Date
(SEAL)
Address
City
State Zip
13 - CommllnlutiOIl P~l1IIl1 ClSIOS (Rev. 7no'OS)
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