2021G001 - AGREEMENT SIGNED BY DIAMONDBACK.PDF

AGREEMENT FCD 2021G001
AMONG
THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
And
MARICOPA COUNTY
And
DIAMONDBACK SAND AND ROCK NORTH, LLC
for
RESOLUTION OF OUTSTANDING VIOLATIONS INVOLVING APN 201-22-008B
FCD Agenda
Maricopa County Agenda
This Agreement is made on April , 2021 by and among
Flood Control District of Maricopa County, a political subdivision of the State of
Arizona, hereinafter referred to as District;
And
Maricopa County, a political subdivision of the State of Arizona, by and through
its Air Quality Department, hereinafter referred to as County;
And
Diamondback Sand and Rock North, LLC, an Arizona Limited Liability Company,
hereinafter referred to as Diamondback.
Recitals
Whereas, Diamondback is under contract to purchase property (hereinafter
referred to as Purchase Contract) known and designated as APN 201-22-008B,
hereinafter referred to as the Property; and
Whereas, said Property has been found to be in violation of the Floodplain
Regulations for Maricopa County; and
Whereas, the violation of the Floodplain Regulations for Maricopa County
involves the placement of materials in a floodplain without permits; and
Whereas, said Property has been found to be in violation of County ordinances
that require permits from the Air Quality Department; and

Wherefore, said Property has been found to be in violation of the Zoning
Ordinance for the Unincorporated Area of Maricopa County; and
Whereas, Kevin Brown and Stacie Brown, the current owners of the Property and
the Sellers under Purchase Contract to Diamondback entered into a Consent Judgment
with County and District to resolve all issued raised in CV2019 015408, which litigation
concerned the aforesaid violations; and
Whereas, all issues concerning the violations of the Zoning Ordinance for the
Unincorporated Area of Maricopa County have been resolved by the Browns; and
Whereas, the Browns obtained and maintain a current permit from the Air Quality
Department; and
Whereas, a balance of $10.800.00 is owed to County pursuant to the aforesaid
Consent Judgment; and
Whereas, Diamondback is prepared to obtain title to the Property with full
knowledge and understanding of the existing violations of the Floodplain Regulations for
Maricopa County; and
Whereas, the parties desire to enter into this Agreement to resolve all issues
related to the violations herein outlined, which Agreement shall replace and supersede
the Consent Judgment.
NOW THEREFORE, for the mutual promises set forth herein, and other good and
valuable consideration, the receipt of which is acknowledged, the parties do agree as
follows:
1. All of the above recitals are repeated and incorporated herein as if fully set forth.
2. Diamondback shall ensure that the sum of $10,800.00 shall be withheld from
the Browns and paid to County from the consideration to be paid under the
purchase agreement for the Property.
3. Diamondback shall obtain all necessary permits from the District and the County
before it shall begin any activity or operation on the Property.
4. The District shall cooperate with Diamondback in the application process for all
permits needed from the District to allow Diamondback to operate on the
Property.
5. Diamondback shall remove all materials located on the Property that result in
violation of the Floodplain Regulations for Maricopa County within 36 months of
the date the Property conveys pursuant to said Purchase Contract, pursuant to
the following schedule:

a. Not later than within 12 months from the date the Property conveys pursuant
to said Purchase Contract; a full 1/3 of the materials shall have been removed
from the floodplain.
b. Not later than within 24 months from the date the Property conveys pursuant
to said Purchase Contract; a full 2/3 of the materials shall have been removed
from the floodplain.
c. Not later than within 36 months from the date the Property conveys pursuant
to said Purchase Contract, all materials shall have been removed from the
floodplain.
6. Not later than 10 calendar days after each deadline set forth in paragraph 5
above, Diamondback shall demonstrate, to the satisfaction of the District,
compliance with the requirements set forth in paragraph 5 above.
7. Failure of Diamondback to comply with the schedule set forth in paragraph 5
shall result in the immediate imposition of a daily penalty in the amount $200 for
each day, or part thereof, that Diamondback is in non-compliance with this
Agreement. These penalties shall remain in place until such time as the District,
by inspection, verifies that the materials have been removed as provided for in
paragraph 5.
8. The District waives the right to annual payment of $7,300 as set forth in the
Consent Judgment.
9. Diamondback consents to the entry on the Property by the District, at any time
deemed appropriate by the District, for purposes of conducting inspections to
ensure compliance with this Agreement.
10. Upon the full execution of this Agreement and Diamondback obtaining title to the
Property, the District and County shall file a Satisfaction of the Consent
Judgment.
11.In the event Diamondback shall fail to remove all materials from the Property by
the end of the 36-month period provided, the District may record this Agreement,
creating a cloud on the title of the Property.
12. In the event Diamondback shall not obtain title to the Property, this Agreement
shall be null and void and of no further force or effect.
13. This Agreement is subject to cancellation pursuant to A.R.S. § 38-511.

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
Recommended by:
Michael Fulton Date
Director
Approved and Accepted by:
Jack Sellers, Chairman Date
Board of Directors
Attest by:
Juanita Garza Date
Interim Clerk of the Board
APPROVAL OF FLOOD CONTROL DISTRICT GENERAL COUNSEL
| hereby state that | have reviewed the proposed General Agreement FCD 2021G001
and declare the Agreement to be in proper form and within the powers and authority
granted to the DISTRICT by its governing body under the laws of the State of Arizona.
District General Counsel Date

MARICOPA COUNTY
Recommended by:
Philip A. McNeely Date
Director Air Quality Department
Approved and Accepted by:
Jack Sellers, Chairman Date
Board of Supervisors
Attest by:
Juanita Garza Date
Interim Clerk of the Board
DEPUTY COUNTY ATTORNEY
| hereby state that | have reviewed the proposed General Agreement FCD 2021G001
and declare the Agreement to be in proper form and within the powers and authority
granted to the COUNTY by its governing body under the laws of the State of Arizona.
Deputy County Attorney Date

Performance of all duties, responsibilities and obligations imposed upon Diamondback
by this Agreement, including all financial obligations, are unconditionally guaranteed by
Diamondback Sand and Rock, LLC, an Arizona Limited Liability Company, without the
necessity of any party first seeking performance from Diamondback.
Diamondback Sand and Rock North, LLC
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STATE OF ARIZONA )
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COUNTY OF MARICOPA)
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This foregoing Agreement FCD 2021G001 was acknowledged before me this
of March 2021, by Frans Wiil'ams on behalf of Diamondback
Sand and Rock North, LLC., an Arizona limited liability company.
.
My Commission Expires: .
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