AGREEMENT TO DONATE WITH THE NATURE CONSERVANCY.PDF
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When Recorded Mail To: Maricopa County Attn Michelle Colby, Real Estate 2801 W. Durango Street Phoenix, AZ 85009 AGREEMENT TO DONATE AND WAIVER OF APPRAISAL AND COMPENSATION C-30-17-011-M-00 This Agreement to Donate and Waiver of Appraisal and Compensation (the “Agreement”) is made and entered into by and between THE NATURE CONSERVANCY, a District of Columbia Non- Profit Corporation doing business by and through its Arizona Program (TNC), hereinafter referred to as “Donor” and MARICOPA COUNTY, a political subdivision of the State of Arizona, hereinafter referred to as “Donee” together hereinafter referred to as “Parties” or individually as a “Party”. RECITALS: WHEREAS, Donee is authorized to enter into this Agreement pursuant to A.R.S. §11-201, 11-251 and 11-933; and WHEREAS, Donor is authorized to enter into this Agreement pursuant to its internal delegations of authority currently in effect; and WHEREAS, Donee, through its Parks and Recreation Department, provides responsible stewardship, quality parks, trails, outdoor education programs, services and recreational opportunities to the public; and WHEREAS, Donor is a conservation organization working to protect ecologically important lands and waters for nature and people and is the owner of the Hassayampa River Preserve at Vulture Mountains Recreation Area (hereinafter referred to as “HRP”), depicted in the attached Exhibit A, portions of which are proposed to be donated to Donee; and, WHEREAS, Donor has conservation expertise and has provided conservation management, oversight and resource management guidance on HRP lands since its acquisition of portions of HRP in 1989; and WHEREAS, the Parties have established a cooperative relationship and mutual objectives as defined in that certain Cooperative Agreement effective as of April 6, 2016, a copy of which is attached hereto and incorporated herein as Exhibit C (hereinafter referred to as the “Cooperative Agreement”), and Hassayampa River Preserve Site Master Plan as approved by The Nature Conservancy and the Maricopa County Parks and Recreation Department’s Park Commission dated November 15, 2016, as may be amended from time to time (hereinafter referred to as the “Master Plan”) to achieve integrated management of HRP that emphasizes its natural, cultural, 1 historic, and wildlife resources and the sustainability of traditional uses, while embracing compatible recreational, educational, and commercial visitor services; and WHEREAS, the Donor desires to donate the following lands, along with any and all improvements situated thereon, collectively referred to as the “Property” or individually as set forth below, to Donee: (1) that certain 65.3 acre parcel of land described in Exhibit B-1 which is attached hereto and made a part hereof (the “Fee Property”) (2) that certain 646 acre parcel of land described in Exhibit B-2 which is also attached hereto and made a part hereof (the “Interim Leased Property”); and WHEREAS, the Donor will donate the Fee Property to Donee subject to reservations, restrictions and agreements of record, for open space, recreation, education, park conservation and a portion that may be used for a public library and/or nature center, as restricted in the Gift Deed with Reservation of Conservation Easement and Access Easement (“Gift Deed”) being executed simultaneous to this Agreement; and WHEREAS, the Parties acknowledge that there may be property boundary discrepancies associated with the Interim Leased Property. The Interim Leased Property will initially be leased to Donee, upon terms and conditions agreed upon between the Parties under a separate lease agreement, until such time as the boundary discrepancies are resolved to the satisfaction of Donee; and WHEREAS, the Donee desires to accept the donations of the Fee and Interim Leased Property from Donor for open space and parks in favor of the general public, subject to the Master Plan. NOW THEREFORE, in consideration of the mutual covenants set forth below, the Parties herein agree to the following: AGREEMENT: 1. The Recitals set forth above are fully incorporated herein by this reference and made part of this Agreement. 2. Donor will donate the Fee Property, including all water rights and wells described in Exhibit D-1 attached to this Agreement, to Donee, subject to the following conditions precedent, reservations and restrictions: A. Execution of a mutually agreed upon Master Plan for the ongoing use for open space, recreation, education, park conservation and a portion that may be used for a public library and/or nature center and preservation of the Property’s conservation purpose, as defined in, and restricted by, the Gift Deed. B. Reservation of an easement through the Fee Property for ingress and egress to serve adjacent Donor-owned property(ies). 2 3. Donor will execute the Gift Deed, a form of which is attached hereto as Exhibit E and made a part hereof in form and substance acceptable to both Donor and Donee conveying the Fee Property, specified water rights and well(s) described in Exhibit D-1 and improvements to Donee. 4. In the event that Donee can no longer maintain ownership of the Fee Property for the intended purposes as stated above in Section 1.A. then Donee shall have the right to transfer the Property back to the Donor or to a third party in accordance with the provisions set forth in Exhibit C to the Gift Deed. Donee will ensure that a reference to the restrictions stated in the Gift Deed and all its attachments will be inserted in any subsequent deed or other legal instrument by which Donee divests either the fee simple title or possessory interest in the Fee Property, including without limitation a leasehold or mortgage interest. 5. Donor shall bear the risk of loss for damage to the Fee Property prior to the Maricopa County Board of Supervisors execution of the Gift Deed (“Closing”). After Closing, the risk of loss or damage to that portion of the Property described and depicted on Exhibit B-1 shall rest with Donee, unless such loss or damage results from an activity that occurred before Closing. 6. Donor, at its sole cost and expense, and with good faith cooperation from Donee, will resolve all boundary discrepancies associated with the Interim Leased Property to the satisfaction of Donee. Upon resolution of the boundary discrepancies to Donee’s satisfaction, Donor will execute a separate Gift Deed, the form of which will be mutually agreed upon by Donor and Donee prior to execution, that conveys in fee the Interim Leased Property to Donee. A termination of the interim lease shall also occur simultaneous to Closing on the Interim Leased Property. 7. Donor will cooperate with Donee in conducting reasonable due diligence research regarding the Fee and Interim Leased Properties, to include verification of water rights. Donor will formally abandon that certain well on the Fee Property that is registered as Well Number 55-65140 with the Arizona Department of Water Resources (ADWR) and file the appropriate abandonment paperwork with ADWR. Donor will also formally assign to Donee all water rights associated with the respective portions of the Fee and Interim Leased Properties within thirty (30) days of each Closing. 8. Donor has been fully informed of the right to have an appraisal performed to establish the value of the Fee and Interim Leased Properties and to receive just compensation for such Property based upon the appraisal and agrees that the decision to donate said Fee and Interim Leased Properties was made without any undue influence or coercive action of any nature and that the right to an appraisal and to just compensation is hereby waived. 9. Donor covenants, represents, and warrants that to the best of its knowledge: 3 A. Donor and the Fee Property are in compliance with, and shall remain in compliance with, all applicable Environmental Laws (as defined below) until Closing. Donor has no actual knowledge of any use or release of hazardous materials, toxic substances, or petroleum products on the Fee or Interim Leased Properties that is in violation of any Environmental Law. Donor has received no notices from any governmental authority of any violation or alleged violation of, noncompliance or alleged noncompliance with, or any liability under any Environmental Law relating to the operations or conditions on the Property. B. Environmental Laws means any and all federal, state, local, or administrative agency statutes, regulations, rules, codes, ordinances or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) regarding air, water, solid waste, hazardous materials, petroleum products, worker and community right-to-know, hazard communication, radioactive material, resource protection, wetlands and watercourses, health protection and similar environmental health, safety, building and land use laws and regulations that are in effect as of the date of this Agreement. C. There are not now any underground storage tanks subject to Environmental Laws located on the Fee or Interim Leased Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks subject to Environmental Laws have been removed from the Property in a manner not in compliance with applicable federal, state, and local laws, regulations, and requirements. D. Donor releases and shall indemnify, defend and hold Donee and its Board of Supervisors, officers and employees, harmless from any liability related to Donor’s representations and warranties in this Agreement or related to the use, deposit or release of any substances regulated by Environmental Laws on the Fee Property prior to the date of Closing. 10. The Parties agree that all fixtures (fixed items (example exhibits, displays) and improvements shall stay at the Property. Personal property may be removed from the Property. Prior to the respective Closings, the Property shall not be materially degraded by Donor or otherwise materially changed in any material aspect by Donor. 11. All provisions herein shall be binding upon the heirs, successors and assigns of the Parties hereto. 12. Donee shall be solely responsible for payment of all closing costs and escrow fees, including title insurance premium, if any, in connection with the Closing of this transaction. These costs shall not exceed ten thousand dollars ($10,000.00) without the prior written acknowledgement of Donee. 13. This contract is subject to A.R.S. 38-511 and may be canceled pursuant thereto. 4 IN WITNESS HEREOF, the Parties have executed this Agreement as of the dates set forth below: DONOR: THE NATURE CONSERVANCY, a District of Columbia Non-Profit Corporation By: ___________________________________ _____________________ Date Its: ___________________________________ STATE OF ____________ ) ) COUNTY OF ____________) The foregoing instrument was acknowledged before me this ____ Day of ____________, 2017 by ___________________________ as ____________________ and attesting officer of THE NATURE CONSERVANCY, a District of Columbia non-profit corporation. NOTARY PUBLIC NOTARIAL SEAL/EXPIRATION: 5 DONEE: MARICOPA COUNTY, a political subdivision of the State of Arizona: BOARD OF SUPERVISORS BY: ________________________________ Denny Barney Date Its: Chairman ATTEST: Clerk of Board of Supervisors Date APPROVED AS TO FORM: ________________________ Deputy County Attorney Date RECOMMENDED: ________________________________________________ _______________________ RJ Cardin, Director Date Maricopa County Director, Parks and Recreation Department 6 Exhibit A Depiction of HRP Donated and Retained Property 7 Exhibit B-1 Legal Description of 65.3 Acre Fee Property 8 Exhibit B-1 Map of 65.3 Acre Fee Property 9 Exhibit B-2 Depiction of 646 Acre Leased Property 10 Exhibit C Cooperative Agreement 11 12 13 14 15 16 17 18 19 20 21 22 Exhibit D-1 Fee Property - Water Rights and Well Wells: Registration # File # Drill Date Depth to Use Location Water 55-535404 B(7-4)20caa 6/4/1992 100 Domestic NE4 SW4 Sec 20 T7N R4W Surface Claims: 36-67941 Claims 200 afa from Hassayampa for stockwater, recreation, domestic and commercial use. Point of Diversion is within the NW SE Section 20, T7N R4W. Place of Use is within the NW SE Section 20, T7N R4W. Priority date is approximately1850. It was assigned to The Nature Conservancy in 1987. Adjudication Claims: 39-38039 Associated filing 36-67941. A claim for 200 acre feet per annum used for stockwater and recreation. The source of water is groundwater which is conveyed by ditch. Some water is also pumped using well 55-650140. The priority date is approximately 1850 and the Statement of Claim was filed by The Nature Conservancy in 1987. Instream Flow Certificate (partial assignment for the portion of those rights within the land conveyed to Maricopa County): 39-36904 Associated with filing 33-92304 for Instream Flow in the Hassayampa River. It is a claimed right for 5-10 cfs to maintain base flows. The priority date is 1986, upon The Nature Conservancy’s acquisition of the property. 33-92304 Certificated instream flow water right for the Hassayampa River stretch, applies to two locations, an Upper and Lower reach of the Hassayampa River. 23 Exhibit D-2 Interim Leased Property - Water Rights and Well Instream Flow Certificate (partial assignment for the portion of those rights within the land leased to Maricopa County): 39-36904 Associated with filing 33-92304 for Instream Flow in the Hassayampa River. It is a claimed right for 5-10 cfs to maintain base flows. The priority date is 1986, upon The Nature Conservancy’s acquisition of the property. 33-92304 Certificated instream flow water right for the Hassayampa River stretch, applies to two locations, an Upper and Lower reach of the Hassayampa River. 24 Exhibit E Form of Gift Deed with Reservation of Conservation Easement and Access Easement When Recorded Mail To: Maricopa County Attn Michelle Colby, Real Estate 2801 W. Durango Street Phoenix, AZ 85009 *Exempt from Affidavit pursuant to ARS Section 11-1134A.7. GIFT DEED WITH RESERVATION OF CONSERVATION EASEMENT AND ACCESS EASEMENT C-30-17-012-M-00 IN CONSIDERATION of the terms, conditions and restrictions contained herein, THE NATURE CONSERVANCY, a District of Columbia non-profit corporation, (GRANTOR) does hereby convey and quit claim to MARICOPA COUNTY, a political subdivision of the State of Arizona, (GRANTEE) all right, title or interest in and to the following real property situated in Maricopa County, Arizona, and the following described water rights and well used and diverted in Maricopa County, Arizona: to-wit: See Exhibit A-Real Property and Exhibit B-Water Rights and Well attached hereto and incorporated herein by this reference, (hereinafter the real property described in Exhibit A, and all improvements located thereon, as well as the water rights and well described in Exhibit B are referred to as the “Property”). GRANTOR expressly reserves for itself, its successors and assigns, a perpetual conservation easement over the Property upon the terms set out in the Reservation of Conservation Easement attached hereto and made a part hereof as Exhibit C of this Deed. The Reservation of Conservation Easement shall run with the land and shall be binding upon the GRANTEE and GRANTEE’S successors and assigns and all future owners of the Property in perpetuity. 25 The Property is hereby granted to GRANTEE for open space, recreation, education, park conservation, limited buildings for public use, and a portion that may be used for a public library and/or nature center consistent with preservation of the Property’s Conservation Purpose, as defined in Exhibit C. In the event the Property is not used in a manner that is consistent with the Conservation Purpose, GRANTOR or its successors or assigns shall have the right to enforce the terms of the Conservation Easement by proceedings at law or in equity. GRANTOR further reserves for itself, its successors and assigns, a nonexclusive access easement in gross for ingress and egress on, over and across the Property using the existing road from U.S. Highway 60/Phoenix-Wickenburg Highway that crosses the Property to access properties owned by GRANTOR (the “Retained Properties”) more particularly described in Exhibit D and depicted in Exhibit E, for as long as the Retained Properties are retained by GRANTOR. SUBJECT TO: any lien for taxes that shall become due and any exceptions, encumbrances, liens, easements, rights of way, reservations or restrictions of record. In witness whereof, GRANTOR and GRANTEE have executed this Deed in full acceptance of the terms set out in this Deed, including the terms of the Reservation of Conservation Easement. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOLLOWS 26 DATED this ____ Day of ______________, 2017. GRANTOR: THE NATURE CONSERVANCY, a District of Columbia non-profit corporation By: Its: STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ Day of ____________, 2017 by ___________________________ as ___________________ _ and attesting officer of THE NATURE CONSERVANCY, a District of Columbia non-profit corporation. ______________________________ NOTARY PUBLIC NOTARIAL SEAL/EXPIRATION: 27 GRANTEE: MARICOPA COUNTY, a Political subdivision of the State of Arizona BOARD OF SUPERVISORS By: _______________________________________ Denny Barney Its: Chairman ATTEST: Clerk of the Board Date APPROVED AS TO FORM: Deputy County Attorney Date 28 Exhibit A Real Property (Legal Description and Map) 29 Exhibit A Real Property (Legal Description and Map) – Continued 30 Exhibit B Water Rights and Well Wells: Registration # File # Drill Date Depth to Use Location Water 55-535404 B(7-4)20caa 6/4/1992 100 Domestic NE4 SW4 Sec 20 T7N R4W Surface Claims: 36-67941 Claims 200 afa from Hassayampa for stockwater, recreation, domestic and commercial use. Point of Diversion is within the NW SE Section 20, T7N R4W. Place of Use is within the NW SE Section 20, T7N R4W. Priority date is approximately1850. It was assigned to The Nature Conservancy in 1987. Adjudication Claims: 39-38039 Associated filing 36-67941. A claim for 200 acre feet per annum used for stockwater and recreation. The source of water is groundwater which is conveyed by ditch. Some water is also pumped using well 55-650140. The priority date is approximately 1850 and the Statement of Claim was filed by The Nature Conservancy in 1987. Instream Flow Certificate (partial assignment for the portion of those rights within the land conveyed to Maricopa County): 39-36904 Associated with filing 33-92304 for Instream Flow in the Hassayampa River. It is a claimed right for 5-10 cfs to maintain base flows. The priority date is 1986, upon The Nature Conservancy’s acquisition of the property. 33-92304 Certificated instream flow water right for the Hassayampa River stretch, applies to two locations, an Upper and Lower reach of the Hassayampa River. 31 Exhibit C Reservation of Conservation Easement and Access Easement This Reservation of Conservation Easement (Conservation Easement or Easement) is being executed by and between The Nature Conservancy, a District of Columbia non-profit corporation (Holder) and its successors in interest and assigns, and Maricopa County, a political subdivision of the State of Arizona (County) and its successors in interest and assigns (collectively referred to as “Parties” or individual as “Party”). This Conservation Easement constitutes an integral part of the Gift Deed with Reservation of Conservation Easement (Deed), of which this Reservation of Conservation Easement has been made a part by incorporation, via which Holder is conveying that certain 65.3 acre property legally described and depicted in Exhibits A and B to the Deed (the Property), located in Maricopa County, Arizona, to County. RECITALS WHEREAS, the mission of The Nature Conservancy is to conserve the lands and waters on which all life depends; and WHEREAS, Holder is a “qualified organization” as that term is defined in 26 U.S.C. § 170(h)(3) and applicable regulations; and WHEREAS, the State of Arizona has authorized the creation of conservation easements pursuant to A.R.S. Sections 33-271 to 33-276, and County and Holder wish to avail themselves of the provisions of that law without intending that the existence of this Conservation Easement be dependent on the continuing existence of such law; and WHEREAS, the Parties have established a cooperative relationship and mutual objectives as defined in that certain Cooperative Agreement effective April 6, 2016 (hereinafter referred to as the Cooperative Agreement), and the Hassayampa River Preserve (HRP) Site Master Plan as approved by The Nature Conservancy and the Maricopa County Parks and Recreation Department’s Park Commission dated November 15, 2016, as may be amended from time to time (hereinafter referred to as the Master Plan), incorporated herein by reference, to achieve integrated management of HRP that emphasizes and preserves its natural, cultural, historic, and wildlife resources and the sustainability of traditional uses, while embracing compatible recreational, educational, and commercial visitor services; and WHEREAS, the parties desire that the Property be managed and preserved in perpetuity for open space, recreation, education, park conservation, and a portion that may be used for a public library and/or nature center; and WHEREAS, it is understood and acknowledged that the terms and conditions contained in this Reservation of Conservation Easement shall apply to any successor in interest to the County and all such references to the County’s obligations herein, except as noted, shall be binding on any subsequent owner of the Property. NOW, THEREFORE, The Parties hereby agree that this Conservation Easement, which consists of the rights and restrictions enumerated below, over and across the Property, is reserved by the Holder for the benefit of Holder, its successors and assigns. County is accepting the Property, for itself and for any and all heirs, successors, and assigns subject to the terms and conditions of this Conservation Easement. 32 RESERVATION OF CONSERVATION EASEMENT 1. PROPERTY. The Property subject to this Conservation Easement is described and depicted on Exhibits A and B of the Deed. 2. PURPOSE. The purpose of this Conservation Easement (the Conservation Purpose) is to preserve and protect in perpetuity the attributes of the Property as described in the Master Plan and in the Easement Documentation Report referenced below (hereinafter collectively referred to as the Conservation Values). 3. EASEMENT DOCUMENTATION REPORT. The Property’s current condition has been documented by Holder and County in an Easement Documentation Report (the Report) dated ____________________, 20___, incorporated herein by reference. In case of any conflict or inconsistency between the terms of the Conservation Easement and the Report, the terms of this Conservation Easement shall prevail. 4. PROPERTY USES. The Property shall be managed and preserved in perpetuity consistent with the Conservation Purpose, the Master Plan, as may be amended from time to time in cooperation with Holder, and this Conservation Easement. In case of any conflict or inconsistency between the terms of the Conservation Easement and the Master Plan, or if the Master Plan terminates for any reason, this Conservation Easement shall prevail. 5. AVAILABILTY OF FUNDS. So long as the County is the landowner of the Property, the County hereby pledges any revenues derived from the operation of the Property to be used solely for: (a) Property operations and maintenance expenses; (b) establishing a reserve fund for necessary repairs on the Property; and (c) implementing approved capital improvements on, or on behalf of, the Property. All obligations of the County under this Conservation Easement shall be subject to the availability of funds, either from the Property revenues or other funds approved by County’s Board of Supervisors within a given fiscal year (collectively the Available Funds). County shall have no obligation to provide funds from any source except Available Funds. In the event there are not sufficient Available Funds to enable the County to operate and maintain the Property, the County may, after providing Holder with thirty (30) days written notice, limit the operations on the Property, postpone the construction of proposed improvements, or otherwise elect to take actions, or fail to take actions, as may be necessary to operate, maintain, or repair the Property until Available Funds are sufficient to enable the County to resume operations on the Property. Acceptance of such notice by Holder shall not be deemed to be a waiver of its rights to enforce the terms of this Conservation Easement. If the County conveys the Property to another party, this paragraph shall not apply to such subsequent landowner. 6. CONSTRUCTION OF BUILDINGS AND STRUCTURES. 6.1 The term “Building(s)” shall mean an enclosed space with walls and a roof that provides shelter or housing or provides working, office, parking, display or sales space and which includes, but is not limited to houses, barns, sheds, cabins, garages, temporary living quarters of any sort, and mobile homes. Structure. 6.2 The term “Structure(s)” shall mean a man-made improvement such as a dock, picnic pavilion, wildlife viewing blinds, well house, sign, billboard or other advertising material, utility tower, etc., that is not a Building, fence, or road. 33 6.3 Construction or placement of any Buildings or Structures on the Property is subject to the following: a. The maintenance, repair, remodel, relocation or, in the event of its destruction, reconstruction or replacement of existing Buildings and Structures as documented in the Easement Documentation Report (Report) dated ____ , 2017, is permitted provided that all replacement or relocated Buildings and Structures must be built within the building area described and depicted in Exhibit A-1, which description may consist of either a surveyed legal description or GPS points as shown in the Report (the Building Envelope). b. Any construction of new Buildings or Structures to support the recreational use of the Property must be agreed to, described and included in the Master Plan, as amended. Such construction, maintenance, repair, remodel, relocation or in the event of its destruction, reconstruction or replacement of new Buildings or Structures in the Building Envelope, or new Structures outside of the Building Envelope that support the recreational use of the Property and are reasonably necessary to the use of the Property as a public park, are permitted with the prior written approval of Holder, which approval shall not be unreasonably withheld. If not agreed to in the Master Plan, or if the Master Plan terminates for any reason, proposed new Buildings and Structures that fall into the use categories described immediately above are also permitted with the prior written approval of Holder, which approval shall not be unreasonably withheld. 7. SUBDIVISION. The legal or de facto division, subdivision, lot splitting, or partitioning of the Property is prohibited and the Property shall not be sold, transferred, or otherwise conveyed except as a whole and intact, single piece of real estate. 8. MOTORIZED VEHICLES. Off road vehicle courses for all-terrain vehicles, motorcycles, or other motorized vehicles are prohibited. Notwithstanding the foregoing, regular use of motorized vehicles for property maintenance and monitoring purposes is permitted, provided that such use is conducted only as minimally necessary. 9. WATER COURSES, WETLANDS AND GROUNDWATER. Any new manipulation, diversion, or other alteration of natural water courses, wetlands, or other natural bodies of water, any new practice that degrades or destabilizes their natural banks or shorelines, any new pumping of groundwater or subflow, or any other new development of water resources for diversion or use on the Property is prohibited except as follows: 9.1 The development, construction, use and maintenance of new exempt well(s) to provide domestic supply to Buildings permitted herein, provided all new and existing wells are fit with a flowmeter to monitor annual water use for park operations. 9.2 The maintenance, repair, and if destroyed, reconstruction of any existing water rights facilities as documented in the Report unless the proposed reconstruction is inconsistent with the Conservation Easement and/or Master Plan. 9.3 County may engage in activities that prevent the degradation of, restore, and/or enhance and improve the quality of the watershed, including but not limited to filing and creation of new water rights and/or the alteration or change of existing water rights in furtherance thereof. 34 9.4 County may take reasonable efforts to protect the Building Envelope from movement of the watercourse. 10. WATER RIGHTS. The water rights on the Property may never (a) be changed to or used for municipal, industrial, commercial uses, or other new uses, (b) be changed for use other than on the Property, and (c) be sold, leased, encumbered separately from the Property or otherwise legally separated from the Property. 11. HOLDER’S RIGHTS. To accomplish the Conservation Purpose, the following rights are granted to Holder (and Holder’s agents, representatives and invitees) by this Conservation Easement: 11.1 Right to Enforce. The right to preserve and protect the Conservation Values of the Property and enforce the terms of this Conservation Easement. 11.2 Right of Entry. The right to enter the Property at reasonable times for the purposes of: (a) inspecting the Property to monitor compliance with the terms of this Conservation Easement; and (b) implementing activities (such as monitoring and research, signage, boundary marking, fencing, etc.) as agreed to in the Master Plan; provided, however, that the foregoing rights of Holder shall not relieve County from any obligations to comply with the terms of this Conservation Easement. Holder agrees that entry will be done in a manner that will not interfere unreasonably with County’s permitted uses of the Property. Holder also agrees to provide thirty (30) days advance notice to County, or a shorter period if mutually agreed to by the Parties, prior to entering the Property, except that prior advance notice is not required (i) in any case where immediate entry is necessary or desirable to prevent, terminate, or mitigate damage to, or the destruction of, the Conservation Values, (ii) to prevent, terminate or mitigate a violation of the terms of this Conservation Easement; or (iii) accessing adjacent property owned by the Holder. This right of entry shall include the right to access the Property, and adjacent property owned by the Holder, over roads owned by County and any rights-of-way or other access ways now or hereafter available to County for access to the Property. 12. VIOLATION AND REMEDIES. 12.1 Notice of Violation; Corrective Action. If Holder determines that a violation of the terms of this Conservation Easement has occurred or is threatened, Holder shall give written notice to County of such violation and demand corrective action sufficient to (a) cure the violation, and (b) where the violation involves injury to the Property resulting from any use or activity inconsistent with the Conservation Purpose, restore the portion of the Property so injured to its condition before the violation occurred, or to a condition otherwise acceptable to Holder, in accordance with a plan approved by the Holder. 12.2 Injunctive Relief. If County fails to cure a violation within forty-five (45) days after receipt of notice thereof from Holder, or under the circumstances where the violation cannot reasonably be cured within a forty-five (45) day period, fails to begin curing such a violation within the forty-five (45) day period, Holder may bring an action in equity, in a court of competent jurisdiction to enforce the terms of this Conservation Easement, to enjoin the violation, by temporary or permanent injunction, and to require the restoration of 35 the Property to the condition that existed prior to any such injury or to a condition otherwise acceptable to Holder. 12.3 Emergency Enforcement. If Holder, in its sole discretion, reasonably determines that circumstances require immediate action to prevent, terminate or mitigate significant damage to the Conservation Values of the Property, or to prevent, terminate or mitigate a violation of this Conservation Easement, the Holder may pursue its remedies under this section without prior notice to County and/or without waiting for the period provided for cure to expire. 12.4 Scope of Relief. Holder’s rights under this section apply equally in the event of either an actual or threatened violation of the terms of this Conservation Easement or where the Holder shall be entitled to the injunctive relief described above, both prohibitive and mandatory, including specific performance of the terms of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Holder’s remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. 12.5 Forbearance. Forbearance by Holder or County to exercise its rights under this Conservation Easement in the event of any violation of any term of this Conservation Easement by the other party shall not be deemed or construed to be a waiver by Holder or County of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of Holder’s or County’s rights under this Conservation Easement. No delay or omission by Holder or County in the exercise of any right or remedy upon any breach by the other party shall impair such right or remedy or be construed as a waiver. 13. DISPUTE RESOLUTION. Any dispute arising out of or relating to this Conservation Easement may be submitted to arbitration prior to filing an action in the courts; provided, however, that nothing in this provision shall prohibit Holder from seeking judicial relief for emergency enforcement of this Conservation Easement. Notice of a dispute must be in writing and provide a summary of the issue that is the subject of the dispute. 13.1 The parties shall confer within thirty (30) days of a party’s receipt of a notice of dispute and decide, within ten (10) days after conferring, on a mutually acceptable arbiter. If a mutually acceptable arbiter cannot be agreed upon within thirty (30) days after conferring, the parties agree that each party shall name one (1) arbiter and those two (2) arbiters shall select a third arbiter. Any decisions made shall be made by a majority of the panel of three (3) arbiters. 13.2 Arbitration shall be binding. The cost of any arbitration shall be shared equally by the parties. 13.3 Maricopa County, Arizona shall be the venue for any action filed in the courts to resolve a dispute arising out of or relating to this Conservation Easement. 14. ACTS BEYOND COUNTY’S CONTROL. Nothing contained in this Conservation Easement shall be construed to entitle Holder to bring any action against County for any injury to or change in the Property resulting from causes beyond County’s control, including, without limitation, fire, flood, storm, infestations, natural deterioration, earth movement, acts of third parties legally authorized to act by recorded instrument or other legally established rights, the wrongful acts of third parties other than County’s agents, employees, invitees or contractors (provided the County 36 has taken reasonable steps to prevent such third parties from trespassing and from causing harm to the Property and has not consented to or participated in the acts of such third parties), or from any prudent action taken by County under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. County shall notify Holder of any occurrence that would adversely affect or interfere with the Conservation Purpose, whether caused by the County’s acts or omissions or by a third party or parties. In the event of violations of this Conservation Easement caused by the wrongful acts of a third party, County shall cooperate fully with Holder in enforcement of this Conservation Easement, including but not limited to: gathering facts and information relevant to the violation; in some cases assigning its right of action to the Holder; and/or joining in any claim or legal action, all at the election of the Holder. 15. ENFORCEMENT RIGHTS OF OTHERS. Nothing in this Conservation Easement is intended to create any right to enforce this Conservation Easement in any third party where no such right otherwise exists under this Conservation Easement or under law. Nothing contained herein shall affect any rights that the State where the Property is located may have to protect the public’s interest in any matter pertaining to this Conservation Easement. 16. PUBLIC RIGHTS. Nothing contained in this Conservation Easement shall be deemed to create any rights in the general public of any kind other than those provided in the Master Plan. 17. TRANSFER OF EASEMENT. Holder shall have the right, subject to the consent of the County, which consent shall not be unreasonably withheld, to transfer or assign their rights under this Conservation Easement to an entity that: (a) satisfies the requirements of §170(h)(3) of the U.S. Internal Revenue Code (or successor provisions thereof) and is qualified to hold the Conservation Easement under applicable state law, and (b) as a condition of transfer, agrees to uphold the Conservation Purpose of this Conservation Easement, as required in Treasury Regulations §1.170A-14, as amended. If Holder ever ceases to exist or no longer qualifies under §170(h) or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility. In the event Holder transfers or assigns their rights under this Conservation Easement, in whole or in part, Holder is hereby granted the right to reserve a third-party right of enforcement if Holder so elects at the time of the transfer. 18. TRANSFER OF PROPERTY. This Conservation Easement shall run with the land in perpetuity and be irrevocable. County agrees that a reference to this Conservation Easement will be inserted by County in any subsequent deed or other legal instrument by which County divests either the fee simple title or possessory interest in the Property, including without limitation a leasehold or mortgage interest. County further agrees to notify Holder of any pending transfer at least thirty (30) days in advance of transfer and to provide Holder with a copy of any legal instrument affecting such transfer within thirty (30) days following its execution. The failure of County to comply with this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way. Any successor in interest of County, by acceptance of a deed or other document purporting to convey an interest in the Property, shall be deemed to have consented to, reaffirmed and agreed to be bound by all of the terms, covenants, restrictions and conditions of this Conservation Easement. 19. PRESUMPTION AGAINST AMENDMENT. It is the parties’ intention that this Conservation Easement will not be amended or modified. In the event of unforeseen circumstances or exceptional situations the Holder may in its sole discretion consider an amendment or modification to this Conservation Easement, but in no event shall such amendment be made without compliance with Holder’s internal procedures and standards for such modification, and federal, state and local 37 laws regarding the creation and amendment of conservation easements. No amendment shall be allowed that would adversely affect the qualifications of this Conservation Easement as a charitable gift (if applicable) or the status of Holder under any applicable laws, including §170 (h) of the Internal Revenue Code or the laws of the State where the Property is located, or that would weaken the Conservation Easement in terms of protection of the Conservation Values or its perpetual duration. Any such amendment shall be signed by both parties, and shall be recorded in the official records of the county in which the Property is located. 20. EXTINGUISHMENT, TERMINATION, EMINENT DOMAIN. This Conservation Easement may be released, terminated or otherwise extinguished, whether in whole or in part, only if (1) a court with jurisdiction determines a subsequent unexpected change in conditions surrounding the Property makes impossible or impractical the continued use of the Property for the Conservation Purpose of this Conservation Easement; (2) all or part of the Property is taken by an entity with the authority to exercise eminent domain so as to terminate or extinguish the restrictions imposed by or so as to make it impossible to fulfill the Conservation Purpose of this Conservation Easement; and (3) any conditions or limitations imposed by federal and state law are also complied with. No loss of any or all of the water rights through injury or abandonment shall be considered a termination or extinguishment of all or any part of this Conservation Easement. 21. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be served by any of the following means: (i) by delivery in person, in which case notice shall be deemed given upon delivery (or refusal of delivery), (ii) by certified U.S. mail, return receipt requested, postage prepaid, in which case notice shall be deemed given upon the earlier of the date of first attempted delivery or the third day after deposit in the mail, (iii) by reputable commercial courier service, charges prepaid, in which case notice shall be deemed given upon the earlier of the date of first attempted delivery or the third day after deposit with the courier service, or (iv) by confirmed facsimile if sent during normal business hours of the recipient, and if not, then on the next business day. Notices sent by facsimile transmission shall be effective on the date of successful transmission, and the original of such notice shall be deposited in the U.S. mail postage prepaid. All notices shall be sent to the following addresses, or such other address as either party may hereafter specify by written notice to the other: For TNC: Director, Land Protection The Nature Conservancy 1510 E. Fort Lowell Road Tucson, AZ 85719 Phone: (520) 622-3861 Fax: (520) 620-1799 For County: Operations Manager Maricopa County Parks and Recreation Department 41835 N. Castle Hot Springs Road Morristown, AZ 85342 Phone: (928) 501-9202 Fax: (602) 372-8596 22. COMPLIANCE WITH APPLICABLE LAWS. County shall comply with all statutes, laws, ordinances, rules, regulations, codes, orders, guidelines, or other restrictions, or requirements applicable to the Property. Nothing herein shall be construed to allow County to engage in any 38 activity which is restricted or prohibited by law, restrictions or other requirements applicable to the Property. 23. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 24. PARTIES. Every provision of this Conservation Easement that applies to County or Holder shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. A person’s or entity’s obligation hereunder as County, or successor owner of the Property, shall be joint and several, and will cease, if and when such person or entity ceases to have any present, partial, contingent, collateral, or future interest in the Property (or pertinent portion thereof), but only to the extent that the Property (or relevant portion thereof) is then in compliance herewith. Responsibility of owners for breaches of this Conservation Easement that occur prior to transfer of title will survive such transfer. 25. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, Holder is authorized to re-record this instrument or any other appropriate notice or instrument; for such purpose. 26. SUBSEQUENT LIENS ON PROPERTY. No provision of this Conservation Easement should be construed as impairing the ability of County to use this Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is subordinate to this Conservation Easement and does not violate the restrictions on subdivision of the Property. 27. COUNTERPARTS. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all parties; each counterpart shall be deemed an original instrument as against any party who has signed it. 28. ENTIRE AGREEMENT. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with the terms of this Conservation Easement. 29. CAPTIONS, RECITALS AND EXHIBITS. The captions herein have been inserted solely for convenience of reference, are not a part of this Conservation Easement, and shall have no effect upon its construction or interpretation. The Recitals set forth above, and all Exhibits referred to in this Conservation Easement and the Easement Documentation Report, are an integral part of this Conservation Easement and are incorporated herein by reference. 30. GOVERNING LAW. This Conservation Easement will be interpreted in accordance with the laws of the state or commonwealth in which the Property is located. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOLLOWS 39 IN WITNESS WHEREOF, County and Holder have executed this document the day and year first below written. COUNTY: HOLDER: Maricopa County, a The Nature Conservancy, a Political subdivision of the State of Arizona District of Columbia nonprofit corporation BOARD OF SUPERVISORS By: __________________________ By: ______________________________ Denny Barney Its: Chairman Its: ______________________________ ATTEST: Clerk of the Board Date APPROVED AS TO FORM: Deputy County Attorney Date NOTARY BLOCK FOR HOLDER: STATE OF ) )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ________ day of ________ , 20__, by ______________________________ [name], _____________________[title] of The Nature Conservancy, a District of Columbia non-profit corporation, on behalf of the corporation. [SEAL] ______________________________________ (Notary’s official signature) ______________________________________ 40 (Commission expiration date) Exhibit A-1 Building Envelope Description and Map 41 42 Exhibit A-1 Building Envelope Description and Map (Continued) 43 Exhibit A-1 Building Envelope Description and Map (Continued) 44 Exhibit D Retained Properties Lykes 3 Tract Maricopa County Assessor Parcel Number (APN) 503-05-002A & 503-05-001 Legal Description PLEASE NOTE: The Nature Conservancy also owns Retained Properties known generally as APN Parcel Numbers 505-53-026, 505-52-025, 505-26-003F, 505-26-003E, and 505-52- 026A, which contain approximately 33.74 acres combined. These tracts are located north of, and are disjunct and separate from, the Hassayampa River Preserve land to be transferred to GRANTEE in fee title, and the lands to be leased to COUNTY (and subsequently donated) as shown on the Map in Exhibit E. 45 Exhibit E Map of Properties 46