Circle G Pegasus LLC Extinguishment with Exhibits 928.pdf
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Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A any pending investigations or any pending or threatened litigation or proceedings that might result in any cloud upon the Credits’ title or any material change in the Credits’ title. 4. ADWR Transfer Forms and Additional Actions. Not later than the earlier of five (5) business days after the (a) Approval Date or (b) the Outside Approval Date (and provided the Agreement has not previously been terminated), Grantor shall execute and submit to ADWR the form(s) attached hereto as Exhibit “B” provided by ADWR, along with either a) the original Certificate or b) a Statement of Lost Certificate of Grandfathered Right for the Certificate, and take whatever other action is necessary to sell, assign, transfer, convey and pledge to Grantee all of Grantor’s right, title, and interest in and to the Credits. Grantor shall initially pay any filing and administrative fees due to ADWR in connection with the transfer and conveyance of the Credits, and Grantee shall reimburse Grantor for those fees through its payment of the Purchase Price. Grantor shall promptly notify Grantee in writing after completing its obligations under this Section, and provide Grantee with an ADWR date-stamped copy of the form(s) attached as Exhibit “B” that it filed. 5. Payment of Purchase Price. Within four (4) business days of the date that Grantor completes its obligations under Section 4 above and notifies Grantee, but in no event later than October 30, 2026, Grantee shall pay to Grantor the allotted Purchase Price for the Credits in immediately available funds, which may include certified check or cashier’s check payable to Circle G Pegasus, LLC, or wire transfer, provided wiring information is timely supplied by Grantor. 6. Covenants of Grantee. Grantee shall not convey, pledge, use, or encumber the Credits in any way until: (i) it has paid the Purchase Price to Grantor; and (ii) the Date of Conveyance has occurred. 7. Rejection or Invalidation of Transfer. Should ADWR reject or otherwise invalidate the proposed sale, assignment, transfer, conveyance or pledge of Grantor’s Credits to Grantee, including but not limited to, if ADWR does not allow for the Certificate to be split between the Credits to be transferred to Grantee and the balance of extinguishment credits derived from the Certificate to be retained by Grantor, then Grantee shall not be obligated, responsible or liable for any payment whatsoever to Grantor, Grantee or Grantor shall have the right to terminate this Agreement, and in the event of any such termination, Grantor shall retain all of the Credits and shall immediately return the Purchase Price to Grantee. 8. AS-IS. By proceeding with the purchase of the Extinguishment Credits, Grantee acknowledges that Grantee has had an opportunity to make its own examination, inspection and investigation of the Credits, including, without limitation, all conditions which may affect the value of the Credits, as Grantee deems necessary or appropriate. Except for the representations, warranties, and covenants expressly stated in this Agreement (the “Express Representations”), Grantor shall not be responsible or liable to Grantee for any conditions or other matters affecting the Credits, as Grantee is purchasing the Credits, except for the Express Representations, AS-IS, WHERE-IS and WITH ALL FAULTS, and not in reliance on any representations or warranties except for the Express Representations. Other than with respect to claims arising from Grantor’s default in the performance of the Express Representations, Grantee hereby fully releases Grantor, the direct and indirect owners of Grantor, and the officers, directors, managers, trustees, trust -3- Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A beneficiaries, and employees of Grantors and such owners (collectively, with Grantor, the “Grantor Related Parties”) from any and all claims that it may now have or hereafter acquire against any Grantor Related Party, for any cost, loss, liability, damage, expense, demand, action or cause of action arising from or related to any errors or omissions or other conditions affecting the Credits. This waiver and release of claims shall survive the Date of Conveyance. Notwithstanding anything to the contrary in this Section, nothing in this Section shall release Grantor from any claims of Grantee arising out of Grantor’s breach of an Express Representation or any other provision of this Agreement. 9. Regulatory Responsibilities. Grantor and Grantee represent to each other that neither will take, nor fail to take, any action that may cause Credits to be diminished on or before the Date of Conveyance. 10. Cooperation. Upon request by the other Party, Grantor or Grantee shall execute any forms or documents, provide information, take any action (or refrain from taking any action), or otherwise cooperate reasonably to fulfill any statutory or regulatory requirements necessary or desirable to achieve the intended results herein including, without limitation, the conveyance of Credits and notification thereof to ADWR. 11. Authorization. Grantor represents and warrants that it has taken all necessary action to duly authorize the execution and delivery of this Agreement and all documents and instruments contemplated by this Agreement, and the performance by Grantor of the covenants and obligations to be performed and carried out by it hereunder. The individuals executing this Agreement for the respective parties respectively represent and warrant that they are duly authorized to and do hereby bind the Parties to the Agreement and each and every provision hereof. 12. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto. 13. Time is of the Essence. Time is of the essence in the performance of this Agreement and each and every provision hereof. 14. Governing Law. This Agreement shall be governed by the laws of the State of Arizona without regard to its conflict of law provisions. Any action to resolve any dispute regarding this Agreement shall be taken in a state court or federal district court of competent jurisdiction located in Maricopa County, Arizona. 15. Rules, Regulations and Amendment or Successor Statutes. All references in this Agreement to the Arizona Revised Statutes, the Arizona Administrative Code, or any other legally binding law or precedent, includes all rules, codes and regulations promulgated by ADWR under such statutes and all amendment statutes and successor statutes, rules, codes and regulations to such statutes, rules, codes and regulations existing as of the date of this Agreement. 16. Severability. The provisions of this Agreement are severable. If any provision of this Agreement is found or determined to be invalid by a court of law or other tribunal with jurisdiction, said provision shall be deemed severable and shall not invalidate the remaining provisions of this Agreement. -4- Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A 17. Default. The failure of either Party to perform any term, covenant, or condition of this Agreement, if that failure continues for thirty (30) days following the receipt of written notice from the other Party. 17.1. Default by Grantor – Remedies – Limitation of Damages. In the event Grantor fails to comply with its obligations under the terms and conditions of this Agreement, Grantee shall provide notice to Grantor and Grantor may cure within five (5) business days. In the event Grantor does not cure the default within five (5) business days, Grantee may seek specific performance of this Agreement, or alternatively, may otherwise immediately terminate this Agreement and have no further obligation to Grantor. No other remedies or damages shall be available to Grantee. 17.2. Default by Grantee – Remedies – Limitations of Damages. In the event Grantee fails to comply with its obligations under the terms and conditions of this Agreement, Grantor shall provide notice to Grantee and Grantee may cure within five (5) business days. In the event Grantee does not cure the default within five (5) business days, Grantor may, Subject to Appropriations, pursuant to Section 2 above, seek specific performance of this Agreement only if Grantee’s governing body has duly and appropriately appropriated said funds, or alternatively, may terminate this Agreement and have no further obligation to Grantee. In the event Grantor terminates this Agreement pursuant to this provision after completing its obligations under Section 4 above but before payment of the Purchase Price, Grantee shall take all necessary action to ensure that the Credits are properly transferred or conveyed back to Grantor. No other remedies or damages shall be available to Grantor. 18. No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties and does not create, nor shall it be construed to create, rights in any third party unless expressly provided herein. No third party may enforce the terms and conditions of this Agreement. 19. Commissions: Grantor shall pay The Hogan Group a commission per separate agreement within four (4) business days of the date that Grantee completes its obligations under Section 5 above. Grantee shall have no commission obligation. 20. Amendments. This Agreement may be modified, amended or revoked only by the express written agreement of the Parties hereto. 21. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes and merges all prior negotiations, agreements and understandings between Grantor and Grantee with respect to the subject matter hereof. 22. Waiver. No delay in exercising any right or remedy shall constitute a waiver unless such right or remedy is waived in writing signed by the waiving party. A waiver by any Party of any right or remedy hereunder shall not be construed as a waiver of any other right or remedy, whether pursuant to the same or a different term, condition or covenant. 23. Captions. All captions, titles, or headings in this Agreement are used for the purpose of reference and convenience only and do not limit, modify, or otherwise affect any of the provisions of this Agreement. -5- Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A 24. Conflict of Interest. The Parties to this Agreement are hereby notified of A.R.S. § 38-511 and this Agreement may be cancelled in accordance therewith. 25. Notices. Subject to the provisions of Section 2 hereof, all notices and other communications required or permitted pursuant to this Agreement shall be in writing and shall be deemed delivered upon actual receipt or within three (3) days after posting thereof in the U.S. Mail, return receipt requested, by registered or certified mail, addressed to: If to Grantee: City of Buckeye 530 E Monroe Ave Buckeye AZ 85326 Attention: Doug Sandstrom, City Manager (email: dsandstrom@buckeyeaz.gov) With copy to: City of Buckeye 530 E Monroe Ave Buckeye AZ 85326 Attention: Tosca Henry, City Attorney (email: thenry@buckeyeaz.gov) And City of Buckeye 21749 W Yuma Rd, Suite 107 Buckeye AZ 85326 Attention: Terry Lowe, Water Resources Director (email: tlowe@buckeyeaz.gov) If to Grantor: Circle G Pegasus, LLC PO Box 3439 Gilbert, AZ 85299 Attention: Wayne Hills (email:hills2@aol.com) With copy to: Jim Tipton 7114 E Stetson Dr, Ste 400, Scottsdale, AZ 85251 (email: jtipton@hogangroupaz.com) 26. Attorneys’ Fees. If either Party brings an action or other proceeding to enforce any of the terms, covenants or conditions of this Agreement, or for declaratory judgment with respect to any of the terms, covenants or conditions of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover its reasonable costs and expenses incurred in such action from the other party, including, without limitation, reasonable attorneys’ fees, and if any decision, order or judgment is obtained by the prevailing party, then payment of all such costs, expenses and fees shall be included in the decision, order or judgment, as applicable. 27. Provisions Required by Law. Each and every provision of law and any clause required by law to be in this Agreement will be read and enforced as though it were included herein -6- Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A and, if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application of either Party, this Agreement will promptly be physically amended to make such insertion or correction. Grantor acknowledges and agrees that it is and/or may be subject to the following laws: A.R.S. §§ 35-393.01 (no boycott of Israel); 35-394 (no forced labor of Ethnic Uyghurs); 38- 511 (cancellation of contract by political subdivision); and 41-4401(a)-(d) (E-verify requirements), found at www.azleg.gov. 28. Survival. All representations, warranties, obligations, promises and agreements by the Parties hereto shall survive the Date of Conveyance and shall not be deemed to have merged into any deed, document or instrument of transfer, assignment, or conveyance. 29. Recitals. The Recitals are incorporated herein and made a part hereof. SIGNATURES ON FOLLOWING PAGE -7- Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A IN WITNESS WHEREOF, the Parties have executed this Agreement effective as the date first set forth above. CITY OF BUCKEYE, an Arizona municipal corporation Doug Sandstrom, City Manager APPROVED AS TO FORM: Tosca Henry, City Attorney ATTEST Summer Stewart, Interim City Clerk Circle G Pegasus, LLC an Arizona limited liability company By: Hills Family Limited Liability Partnership, An Arizona limited liability partnership Its: Member By: Name: Allen Wayne Hills Title: Owner/Manager -8- Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A EXHIBIT “A” Copy of Arizona Department of Water Resources Extinguishment Grandfathered Groundwater Right Letter of Statement of Lost Certificate of Grandfathered Right for the Certificate 2,017.51 acre-feet derived from Certificate No. Extinguishment Certificate No. 58-111119.0041 (see attached) Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A EXHIBIT “B” Copy of Arizona Department of Water Resources Application for Conveyance of Extinguishment Credits Under Grandfathered Groundwater Right Certificate No. 58-111119.0041 Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A Authentisign ID: 4F16F594-76BB-F111-A6A9-000D3A4FF82A NOTARY PUBLIC ACKNOWLEDGMENT STATE OF ARIZONA ) ) § COUNTY OF ___________________________ ) Subscribed and sworn to before me by ____________________________________________________________, (SELLER) this ________ day of ____________________________, 20______. NOTARY PUBLIC SIGNATURE (SEAL) / / DATE COMMISSION EXPIRES NOTICE A.R.S. § 41-1030(B), (D), (E) and (F) provide as follows: B. An agency shall not base a licensing decision in whole or in part on a licensing requirement or condition that is not specifically authorized by statute, rule or state tribal gaming compact. A general grant of authority in statute does not constitute a basis for imposing a licensing requirement or condition unless a rule is made pursuant to that general grant of authority that specifically authorizes the requirement or condition. D. This section may be enforced in a private civil action and relief may be awarded against the state. The court may award reasonable attorney fees, damages and all fees associated with the license application to a party that prevails in an action against the state for a violation of this section. E. A state employee may not intentionally or knowingly violate this section. A violation of this section is cause for disciplinary action or dismissal pursuant to the agency’s adopted personnel policy. F. This section does not abrogate the immunity provided by section 12-820.01 or 12-820.02. REV 12/2/2019