HomeMy WebLinkAboutResolution 2022-077 Approving and Authorizing the Town Engineer to Execute an Easement Amendment and an Easement Encroachment Agreement with El Paso Natural Gas Company (EPNG) MARANA RESOLUTION NO. 2022-077
RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE TOWN
ENGINEER TO EXECUTE AN EASEMENT AMENDMENT AND AN EASEMENT
ENCROACHMENT AGREEMENT WITH EL PASO NATURAL GAS COMPANY
(EPNG) SPECIFYING EPNG'S CONSENT FOR DEDICATED PUBLIC
IMPROVEMENTS ENCROACHING INSIDE THE GAS LINE EASEMENT WITHIN
THE SAGUARO BLOOM SUBDIVISION
WHEREAS the Town of Marana owns public rights-of-way, public drainageways,
and open space within the Saguaro Bloom subdivision; and
WHEREAS El Paso Natural Gas Company("EPNG")has an existing easement and
natural gas pipeline traversing through the Town-owned properties within Saguaro
Bloom; and
WHEREAS EPNG has requested from the Town an Easement Amendment to
refine the width of the easement and an Easement Encroachment Agreement specifying
EPNG's consent for dedicated public improvements encroaching inside the gas line
easement within Saguaro Bloom; and
WHEREAS the Mayor and Council of the Town of Marana find that the public
interests are served by approving this resolution.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, authorizing the Town Engineer, on behalf of the Town, to execute the
Easement Amendment and the Easement Encroachment Agreement in substantially the
forms attached to and incorporated in this resolution as Exhibits A and B, respectively.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 3rd day of August 2022.
Mayor Ed Honea
ATT APPROVED AS TO FORM:
'
Cherry L. La 'son, Town Clerk Ja► 'airall, Town Attorney
A066.
00082406.DOCX/1
Resolution No.2022-077 - 1 - MARANA AZ
ESTABLISHED 1977
00081236.DOC /1 p. 1 of 3
RETURN TO:
Kelley Sims, Senior Land Agent
El Paso Natural Gas Company
5151 E. Broadway, Suite 1680
Tucson, AZ 85711
Easement Amendment
(Saguaro Springs Block A, Block D, and N Saguaro Peaks Blvd)
STATE OF ARIZONA )
)
COUNTY OF PIMA )
This Easement Amendment, is made and entered into this ____ day of _____________, 2022, by
and between the Town of Marana, an Arizona municipal corporation (hereinafter referred to as the
“Town”), and El Paso Natural Gas Company, L.L.C., a Delaware limited liability (hereinafter “EPNG”).
EPNG and Town are also referred to herein as “the Parties”.
WHEREAS on September 19, 1933, Arizona Building Company (“Original Grantor”), duly
executed and delivered to Western Gas Company, a Corporation (“Original Grantee”), that certain
Right of Way and Easement recorded on September 28, 1933, in Book 50, Page 619 of Miscellaneous
Records in the Official Records of Pima County, Arizona (the “Easement”), for the purposes of
constructing, maintaining, and operating one or more pipelines and all necessary appurtenances thereto
over and through, among other lands, the following described property in Pima County, Arizona (the
“Easement Property”):
Portion Section Township Range B & M
N½ and SE¼ 18 12 South 12 East Gila & Salt River
WHEREAS EPNG is the successor in interest to the Original Grantee in the Easement pursuant to
that instrument recorded on July 2, 1936, in Book 190, Page 544 of Deeds in the Official Records of
Pima County, Arizona; and
WHEREAS on June 30, 2006, First American Title Insurance Company, a California
corporation, as Trustee under Trust No. 9089 (the “Trust”), as one of the successors in interest to the
Original Grantor, and EPNG, as the successor in interest to the Original Grantee, amended the Easement
by that certain Amendment to Right of Way and Easement recorded on August 16, 2006, in Docket
12869, Page 1523, Sequence No. 20061580380 in the Official Records of Pima County, Arizona (the
“2006 Easement Amendment”) with the intention of specifically defining the easement’s width and
location over the Easement Property.
WHEREAS, the Town owned and does own a portion of the Easement Property, specifically
Block A, Block D, and N Saguaro Peaks Blvd, pursuant to the Final Plat of Saguaro Springs, Blocks 1
thru 10 & A thru D and Lots 1 thru 9 & A and B recorded on April 12, 2004, at Book 58, Page 23 of
Maps and Plats; and
Exhibit A to Marana Resolution 2022-077
00081236.DOC /1 p. 2 of 3
WHEREAS, the Town was one of the successors in interest to the Original Grantor in 2006, and
owned a portion of the property reflected in the 2006 Easement Amendment Exhibit “A”, but the Town
was inadvertently not included in the execution of the 2006 Easement Amendment; and
WHEREAS, the Parties have agreed that the Town will execute this 2022 Easement Amendment
to specifically define the Easement’s width and location over and through the Town’s property to be
consistent and identical with that 50’ strip of land described in Exhibit A of the 2006 Easement
Amendment.
NOW THEREFORE, for and in consideration of the mutual benefits to the Parties, the
receipt and sufficiency of which is hereby acknowledged, it is understood and agreed as follows:
1.Right of Way and Easement Defined. The Town and EPNG do hereby amend the Easement over
and through the Town’s property to that 50-foot strip of land being more particularly described
and depicted on Exhibit “A” of the 2006 Easement Amendment, incorporated herein for all
purposes.
2.Runs with the Land. The terms and conditions of this Easement Amendment shall be binding on
the Parties, their heirs, successors, and assigns.
3.Except as hereby amended, all terms, conditions, and provisions of the Easement and the 2006
Easement Amendment, are continued in full force and effect.
AGREED TO AND ACCEPTED BY:
Town of Marana, an Arizona
Municipal corporation
By: ______________________________
_______________________(printed name)
Its:
ACKNOWLEDGEMENT
STATE OF ARIZONA )
)
COUNTY OF PIMA )
This instrument was acknowledged before me on the ______ day of _________________, 2022, by
_________________________, the ___________________ for the Town of Marana, who represented
him/herself to be a person duly authorized to execute real estate documents on behalf of the Town.
My Commission Expires: _____________________________
Notary Public in and for
____________________ Pima County, State of Arizona
Exhibit A to Marana Resolution 2022-077
00081236.DOC /1 p. 3 of 3
AGREED TO AND ACCEPTED BY:
El Paso Natural Gas Company, L.L.C.
a Delaware limited liability company
By: ________________________________
M. James Pagonis
Its: Attorney in Fact
ACKNOWLEDGEMENT
STATE OF COLORADO )
)
COUNTY OF EL PASO )
This instrument was acknowledged before me on the ______ day of __________________, 2022, by M.
James Pagonis, Attorney-In-Fact for El Paso Natural Gas Company, L.L.C., a Delaware limited liability
company, who represented himself to be a person duly authorized to execute real estate documents on
behalf of El Paso Natural Gas Company, L.L.C.
My Commission Expires: _____________________________
Notary Public in and for
____________________ El Paso County, State of Colorado
Exhibit A to Marana Resolution 2022-077
00081235.DOC /2 p. 1 of 6
RETURN TO:
Kelley Sims, Senior Land Agent
El Paso Natural Gas Company
5151 E. Broadway, Suite 1680
Tucson, AZ 85711
Easement Encroachment Agreement
(Saguaro Springs Block A, Block D, N Saguaro Peaks Blvd, W Garnet Range Loop & N Crooked Peak Trail)
STATE OF ARIZONA )
)
COUNTY OF PIMA )
THIS AGREEMENT, is made and entered into this ____ day of _____________, 2022, by and
between the Town of Marana, an Arizona municipal corporation (hereinafter referred to as the “Town”),
and El Paso Natural Gas Company, L.L.C., a Delaware limited liability (hereinafter “EPNG”). EPNG
and Town are also referred to herein as “the Parties”.
WHEREAS on September 19, 1933, Arizona Building Company (“Original Grantor”), duly
executed and delivered to Western Gas Company, a Corporation (“Original Grantee”), that certain
Right of Way and Easement recorded on September 28, 1933, in Book 50, Page 619 of Miscellaneous
Records in the Official Records of Pima County, Arizona (the “Easement”), for the purposes of
constructing, maintaining, and operating one or more pipelines and all necessary appurtenances thereto
(the “Pipeline” or the “Facilities”) over and through, among other lands, the following described
property in Pima County, Arizona (the “Easement Property”):
Portion Section Township Range B & M
N½ and SE¼ 18 12 South 12 East Gila & Salt River
WHEREAS EPNG is the successor in interest to the Original Grantee in the Easement pursuant to
that instrument recorded on July 2, 1936, in Book 190, Page 544 of Deeds in the Official Records of Pima
County, Arizona; and
WHEREAS on June 30, 2006, First American Title Insurance Company, a California corporation,
as Trustee under Trust No. 9089, one successor in interest to the Original Grantor, and EPNG, the
successor in interest to the Original Grantee, amended the Easement by that certain Amendment to Right
of Way and Easement recorded on August 16, 2006, in Docket 12869, Page 1523, Sequence No.
20061580380 in the Official Records of Pima County, Arizona to specifically define the easement, or
right of way location (the “ROW”) over and through the Easement Property; and
WHEREAS on ___________________, 2022, the Town, another successor in interest to the
Original Grantor, and EPNG, the successor in interest to the Original Grantee, amended the Easement by
that certain Easement Amendment recorded on _______________, 2022, at Sequence No.
___________________ in the Official Records of Pima County, Arizona to further specifically define the
ROW over and through the Easement Property; and
Exhibit B to Marana Resolution 2022-077
00081235.DOC /2 p. 2 of 6
WHEREAS, the Town owns a portion of the Easement Property within the residential subdivision
known as Saguaro Bloom (fka Saguaro Springs), specifically Block A, Block D, N Saguaro Peaks Blvd,
W Garnet Range Loop, and N Crooked Peak Trail (the “Town Property”) pursuant to the Final Plat of
Saguaro Springs, Blocks 1 thru 10 & A thru D and Lots 1 thru 9 & A and B recorded on April 12, 2004,
at Book 58, Page 23 of Maps and Plats and the Final Plat for Saguaro Bloom Block 1, Lots 1-389,
Common Area “A”, Common Area “B”, Common Area “C”, & Blocks 1A, 1B, 1C recorded on February
23, 2018, at Seq. # 20180540069 in the Official Records of Pima County, Arizona; and
WHEREAS, the Town is successor in interest to the Original Grantor in that portion of the
Easement over and through the Town Property, and Town Property is encumbered by the Easement; and
WHEREAS, the Easement prohibits the Town from uses that hinder, conflict, or interfere with
EPNG’s easement rights as well as prohibiting the placement of structures upon, under, or across the
Easement without EPNG’s written consent; and
WHEREAS, the Town desires to construct, own, operate, maintain, use, and/or remove the
following items within the Easement, at no expense to EPNG and without interfering with the
construction, operation, and safety of the EPNG Facilities:
(a)Public Street named N Saguaro Peaks Blvd, with curbs, gutters, sidewalks, and utilities
including an 8” PVC water line and irrigation lines and sleeves;
(b)Public Street named W Garnet Range Loop, with curbs, gutters, sidewalks, and utilities
including an 8” ductile iron water line and irrigation lines and sleeves;
(c)Public Street named N Crooked Peak Trail, with curbs, gutters, sidewalks, and utilities
including an 8” PVC water line, an 8” sewer line, and a 15” sewer line in the Common Area
south of Crooked Peak Trail installed by easement right;
(d)A combination Concrete Drainage Channel and ADA-Compliant Pedestrian Walkway, with
handrails and riprap;
(e)An existing 12” PVC sewer line crossing a portion of the ROW in Block A and a portion of
the ROW in Block 6, said sewer line installed within Block 6 by easement right;
(f) (4) Drainage Channels; and
(g)Various groundcovers, shrubs, and plants with a mature height of under 5’, which plants shall
not include trees or Saguaro cacti.
Items (a) thru (g) above are individually and collectively referred to herein as the “Encroachments”.
WHEREAS, EPNG agrees to the Town’s construction, installation, and maintenance of the
Encroachments, which would otherwise be prohibited by certain provisions of the Easement, subject to
Town’s agreeing to the terms and conditions set forth below.
NOW THEREFORE, for and in consideration of the mutual benefits to the Parties, the
receipt and sufficiency of which is hereby acknowledged, it is understood and agreed as follows:
1. Locations and Grade. EPNG consents to Town’s construction, installation, and maintenance of
the Encroachments, under the terms stated herein, in the locations depicted on the following:
(a)Preliminary Plat for Saguaro Bloom “7A”, Lots 1-202, Blocks “7B” and “7C”, (Future
Residential) and Common Areas “A” and “B” PRV1811-003, accepted by Town on April 2,
2019;
(b)Private Grading and Drainage Improvement Plans Saguaro Bloom “7A”, Lots 1-202
ENG1905-006, approved by Town on June 24, 2019;
Exhibit B to Marana Resolution 2022-077
00081235.DOC /2 p. 3 of 6
(c)Offsite Public Water to Serve Saguaro Bloom “7A” (Garnet Range Loop) ENG1906-006,
accepted by Town on September 24, 2019;
(d)Public Paving, Drainage and Sewer Improvement Plans for Saguaro Bloom “7A”, Garnet
Range Loop Public Streets ENG1906-007, accepted by Town on September 24, 2019;
(e)Private Grading and Drainage Improvement Plans Saguaro Bloom “7C”, Lots 378-494,
ENG2109-002, accepted by Town on January 6, 2022;
(f)Public Improvement & Grading Plans for Saguaro Bloom, Block 1, Lots 1-395 Common
Areas A, B, and C, dated August, 2017; and
(g)Public Paving, Drainage and Utility Improvement Plans for Saguaro Bloom Community Park,
ENG2011-005, approved by Town on March 2, 2021.
Section 1, Items (a) thru (g) are individually and collectively referred to herein as the “Plans”.
2.Permission is Limited. The permission granted herein is limited exclusively to the Encroachments
defined above and as either set out in the Plans or as installed in accordance with EPNG
standards. No other structures of any kind, including but not limited to utilities, poles, pedestals,
manholes, drainage improvements, and/or walls shall be constructed within the ROW.
3. Construction Requirements.
a.Town or the Contractor constructing and/or maintaining the Encroachments
(Contractor) shall call in an Arizona 811 request at least forty-eight (48) hours prior to
commencing any construction activities within twenty-five (25) feet of the Pipeline,
including but not limited to earthwork and heavy equipment travel, and arrange for an
EPNG representative to be onsite monitoring such activities. Heavy Equipment is defined
as any vehicle in excess of a maximum axle load of 24,000 pounds. Heavy equipment shall
only be allowed to cross the Pipeline at locations designated by EPNG and subject to weight
restrictions as determined by EPNG. Town and Contractor shall comply with all
precautionary measures required by EPNG to protect the Pipeline and the ROW.
b.EPNG Standby Expenses. After the initial construction of the Encroachments is completed, in
the event Town’s Encroachment maintenance or replacement activities around the Pipeline
require excessive involvement by EPNG Damage Prevention staff for standby and
supervision, in accordance with standard EPNG policy, EPNG reserves the right to charge,
and Town agrees to pay the EPNG Damage Prevention staff rates current at that time. For
planning and reference purposes only, the rate for the year 2022 is $700.00 per day. EPNG
understands that the initial construction of the Encroachments will be completed by
Subdivision Developer, D.R. Horton, so during the initial construction EPNG shall charge
D.R. Horton rather than Town for any such staff construction standby and supervision fees.
c.During the construction, maintenance, or replacement of the Encroachments, the Pipeline must
be supported if a 17’ segment of the Pipeline, or longer, is exposed.
d.Town shall not reduce the depth of cover on the ROW, or permit such alteration anywhere on,
or alter the drainage of the ROW except as shown in the Plans, without EPNG’s prior written
consent, which EPNG may withhold or condition in its sole discretion. Town shall be solely
responsible for, and shall bear the expense of repairs attributable to, in EPNG’s sole opinion,
any loss of subjacent or lateral support to the ROW and/or EPNG Facilities caused by the
Encroachments or other Town activity.
e.No material, fill, or spoil shall be stored or stockpiled over or upon the Pipeline.
f.Drainage Channel and ADA-Compliant Pedestrian Walkway shall be installed per the
cross section attached as Exhibit “A”.
Exhibit B to Marana Resolution 2022-077
00081235.DOC /2 p. 4 of 6
g.Foreign Utilities shall cross under the Pipeline, perpendicularly and at a constant elevation
across the entire ROW, with a minimum of 24” of vertical clearance between the bottom of
the Pipeline and the top of the foreign utility.
h.Landscape Vegetation. No party shall plant trees, saguaro cacti, or shrubs with a mature
height of 5’ or greater within the ROW.
i.Lot Walls. Walls are not allowed within EPNG’s ROW. This means that the western
property boundary walls for Lots 39 thru 61 and Lots 394 thru 413, if any, must be built
adjacent to the eastern limit of EPNG’s ROW.
4. Modifications. The Town agrees that, once constructed, the Encroachments will not be modified
or expanded or enlarged without EPNG’s prior written consent.
5.Damages to Encroachments. The Town agrees to be solely responsible for any damages that may
be caused to the Encroachments by the exercise of EPNG’s rights under the Easement. Should
EPNG’s construction, operation, maintenance, alteration, repair, replacement, removal, addition,
or changing the size of any of the EPNG Facilities within the ROW at any time affect, damage, or
require the removal of the Encroachments, or any portion thereof, Town agrees to bear all costs to
repair or replace the Encroachments, including any costs and expenses associated with the loss of
the use of the Encroachments as a result of EPNG’s activities. The Town agrees to indemnify and
hold the EPNG Indemnitees (defined below) harmless from any and all damages to the
Encroachments.
6.Damage to EPNG Facilities. The Town shall be solely responsible for the construction,
ownership, operation, maintenance, use, and removal of the Encroachments and for all expenses
incurred by EPNG and/or damage to EPNG Facilities and/or the ROW as a result, in EPNG’s sole
opinion, of the Town’s exercise of its rights under this Agreement. The Town shall upon demand
by EPNG, reimburse EPNG fully for any such expense or damage.
7.Prior Rights. Town acknowledges that EPNG’s Facilities have a prior and superior right within
the ROW. Therefore, any and all future conflicts between the Encroachments and the EPNG
Facilities, or any authorized expansions thereof, shall be resolved at the Town’s sole expense.
8.Relocation of and Alterations to Encroachments. If, in EPNG’s opinion, the Encroachments
require relocation or alteration in any way, EPNG shall notify the Town of the necessity for such
relocation and/or alteration, using reasonable efforts to minimize the distance of said relocation;
and Town shall alter or relocate the Encroachments at Town’s sole cost and expense, within thirty
(30) days of receipt of said notification. In the event of such alteration or relocation, Town agrees
to restore the ROW as nearly as practicable to its original condition. If Town fails to comply with
any such request of EPNG to alter or relocate the Encroachments, EPNG shall have the right to
alter or relocate the Encroachments at Town’s sole risk and expense.
9. Town’s Indemnification. The Town agree to indemnify and hold harmless EPNG, its parent,
affiliates, agents, employees, contractors, and subcontractors and their respective successors and
assigns (individually and collectively, the “EPNG Indemnitees”), from liabilities, damages,
losses and costs caused by Town to the EPNG Facilities, but only to the extent caused by
negligence, recklessness or intentional wrongful conduct of Town, their respective parents,
affiliates, agents, employees, contractors or subcontractors, or their respective heirs, successors
and assigns.
Exhibit B to Marana Resolution 2022-077
00081235.DOC /2 p. 5 of 6
10.EPNG Indemnification. EPNG agrees to indemnify and hold harmless Town, their respective
parents, affiliates, agents, employees, contractors, and subcontractors and their respective
successors and assigns (individually and collectively, the “Town Indemnitees”), from liabilities,
damages, losses and costs caused by EPNG to the Town Property, but only to the extent caused by
the negligence, recklessness or intentional wrongful conduct of EPNG, its parent, affiliates,
agents, employees, contractors or subcontractors, or their respective heirs, successors and assigns.
11.Runs with the Land. The terms and conditions of this Encroachment Agreement shall be binding
on the Parties, their heirs, successors, and assigns. Town acknowledges that this Encroachment
Agreement will be filed in the Pima County Recorder’s Office and will create a permanent record
of conditions and stipulations that will attach to and run with the Town Property and the
Encroachments.
12.Invalid Provisions. If any part, term, or provision of this Easement Amendment and
Encroachment Agreement is, by a court of competent jurisdiction or regulatory authority having
jurisdiction over the Town Property, held to be illegal, void or unenforceable, or to be in conflict
with the law of the State of Arizona, the validity of the remaining provisions or portion hereof
shall not be affected, and the rights and obligations of the Parties shall be construed and enforced
as if this Agreement did not contain the particular part, term, or provision held to be invalid.
Except as hereby amended, all terms, conditions, and provisions of the Easement and the
Amendment to Easement, are continued in full force and effect.
AGREED TO AND ACCEPTED BY:
Town of Marana, an Arizona
Municipal corporation
By: ______________________________
_______________________(printed name)
Its:
ACKNOWLEDGEMENT
STATE OF ARIZONA )
)
COUNTY OF PIMA )
This instrument was acknowledged before me on the ______ day of _________________, 2022, by
_________________________, the ___________________ for the Town of Marana, who represented
him/herself to be a person duly authorized to execute real estate documents on behalf of the Town.
My Commission Expires: _____________________________
Notary Public in and for
____________________ Pima County, State of Arizona
Exhibit B to Marana Resolution 2022-077
00081235.DOC /2 p. 6 of 6
AGREED TO AND ACCEPTED BY:
El Paso Natural Gas Company, L.L.C.
a Delaware limited liability company
By: ________________________________
M. James Pagonis
Its: Attorney in Fact
ACKNOWLEDGEMENT
STATE OF COLORADO )
)
COUNTY OF EL PASO )
This instrument was acknowledged before me on the ______ day of __________________, 2022, by M.
James Pagonis, Attorney-In-Fact for El Paso Natural Gas Company, L.L.C., a Delaware limited liability
company, who represented himself to be a person duly authorized to execute real estate documents on
behalf of El Paso Natural Gas Company, L.L.C.
My Commission Expires: _____________________________
Notary Public in and for
____________________ El Paso County, State of Colorado
Exhibit B to Marana Resolution 2022-077
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Exhibit B to Marana Resolution 2022-077