LR80959 - CONSENT TO USE 8-24-2021.PDF
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Return to Contracts Branch
Flood Control District of Maricopa County
2801 W. Durango Street, Phoenix, AZ 85009
AGREEMENT
FCD 2021A012
between the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY,
And
SALT RIVER PROJECT (SRP)
for the
CONSENT TO USE OF SRP EASEMENT AGREEMENT FOR THE
BUCKEYE FRS NO. 1 REHABILITATION PROJECT PHASE 2B
Approved by the
BOARD OF DIRECTORS
of the
Flood Control District of Maricopa County
Agenda Item No. C-69-22
Date
DO NOT REMOVE
THIS COVER IS PART OF THE OFFICIAL DOCUMENT
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CONSENT TO USE OF EASEMENT AGREEMENT
BUCKEYE FRS NO. 1 REHABILITATION PROJECT – PHASE 2B
PCN 207-01-31
FCD Contract No. 2018C001
LJ76596
This Consent to Use of Easement Agreement (“Agreement”) is made and entered into
as of the day of ________________, 2021, by and between SALT RIVER PROJECT
AGRICULTURAL
IMPROVEMENT
AND
POWER
DISTRICT,
an
agricultural
improvement district organized and existing under the laws of the State of Arizona (“SRP”), and
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, a political subdivision of the
State of Arizona (“Owner”).
RECITALS
1. SRP has an existing easement (“Easement”) for (in part) existing and future electrical
facilities over a portion of Owner’s Parcel as recorded in Instrument No. 1985-0411065,
BLM Right of Way Grant A-10213, Instrument No. 2004-1513793, Instrument No. 1985-
241970, Instrument No. 2009-1172434, Instrument No. 2002-0541493, Instrument No. 2004-
0995378, all in records of Maricopa County, Arizona. The portion of Owner’s Parcel
encumbered by the Easement shall be referred to as the “Easement Property”.
3. Owner wishes to occupy and use certain areas of the Easement Property in a manner
potentially inconsistent with or explicitly prohibited by the terms of the Easement.
4. SRP is willing to consent to Owner’s proposed occupancy and use of certain areas within the
Easement Property upon the terms and conditions set forth in this Agreement.
5. It is the intent of Owner and SRP to record this Agreement and to bind future owners of the
Easement Property to its terms and conditions.
6. This Agreement may be cancelled in accordance with A.R.S. 38-511.
AGREEMENT
In consideration of the mutual promises, undertakings, agreements, and other terms and conditions
herein, the adequacy of which is hereby acknowledged by each party, the parties agree as follows:
1. SRP CONSENT TO USE OF EASEMENT PROPERTY.
1.1
SRP consents to the occupancy and use of the Easement Property for the Buckeye
FRS No. 1 Rehabilitation Project – Phase 2B as such were presented and described in
final plans stated below:
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Prepared by TETRA TECH, INC, sealed and dated 2-5-2021 by Douglas G. Lantz,
Registered Professional Engineer #28850 and approved by SRP Transmission Line
Asset Management on 8-18-2021 (the “Plans”).
• Cover Sheet
• Index Sheets Drawing No. G2
• General Notes & Utility Contracts Drawing No. G3
• Site Plan with Key Map & Additional Untreated Base Drawing No. C01
• Site Plan with Key Map & Additional Untreated Base Drawing No. C02
• EE Closure Plan & Profile Drawing No. C12
• EE Closure Foundation Plan Drawing No. C13
• EE Closure Plan & Profile Drawing No. C14
• EE Closure Plan & Profile Drawing No. C15
• EE Dam Raise Plan & Profile Drawing No. C16
• EE Closure O&M Roads Plan & Profile Drawing No. C17
• EE Closure Fencing & Mulch Drawing No. C18
• Perimeter Fence Layout Drawing No. C19
• Wire Fence Drawing No. D12
• Restoration Plan Drawing No. LC01
• Landscape Notes Drawing No. LN01
• Restoration Plan Drawing No. LS01-LS08
• Site Specific Restoration Plan Drawing No. LE01
1.2
SRP shall retain all rights granted to it by the terms of the Easement, and this
Agreement shall in no way diminish any of those rights. SRP’s rights include, in part,
the right to install, access, maintain, reconstruct, replace, remove, operate and use: a
line or lines of poles, towers, or other supporting structures; conductors, cables,
communication and signal lines; guys, anchorages, braces, transformers, vaults,
manholes, and pad-mounted equipment; underground conduits, conductors, pipes, and
cables; and other appliances, appurtenances, and fixtures associated with the
transmission and distribution of electricity and communication signals and other
related purposes at such locations and elevations over, across, under, and upon the
Easement Property or any part thereof as SRP may now or hereafter deem convenient
or necessary.
2. CONDITIONS OF OWNER’S USE.
2.1
Other than Owner’s Improvements specifically consented to herein, Owner shall
make no additional installations or improvements (or change the location of its
installations or improvements) within or upon the Easement Property without first
having received written approval from SRP’s Land Department of drawings and
narrative showing the details and location of any and all such installations or
improvements, which approval shall not be unreasonably withheld. Owner shall bear
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all costs of maintaining or replacing any trees, bushes or other landscaping located
within, or encroaching in any way upon or above, the Easement Property, whether or
not such trees, bushes or other landscaping are included within the Owner’s
Improvements approved by SRP.
2.2
Any and all of Owner’s Improvements shall be located and constructed so as not to
interfere with SRP’s use of or access to the SRP facilities located within the Easement
Property. Furthermore, any and all of Owner’s below-ground facilities located within
the Easement Property shall be designed and constructed to allow SRP’s heavy
equipment to be driven and set up over any and all of the Easement Property without
damage to Owner’s below-ground facilities. SRP requires that Owner’s below-
ground facilities be designed to withstand a minimum loading of 320 pounds per
square inch (PSI) applied to the ground surface under a crane outrigger pad
measuring 27 inches in diameter.
2.3
Owner, at its sole cost, shall at all times maintain proper clearances between SRP’s
energized electrical facilities and Owner’s Improvements, personnel and equipment
as required by the National Electrical Safety Code (NESC), Arizona law, Federal law
(OSHA), and all other applicable rules, codes or regulations.
2.4
Owner acknowledges that it is aware of and understands the potential problems
associated with the installation, use, and maintenance of Owner’s Improvements near
SRP’s electric facilities, including, but not limited to, potential problems related to
induced and/or transferred voltages and/or currents. Owner agrees and represents that
it (and not SRP) shall be fully responsible for the effective mitigation of all such
problems. Additionally, SRP reserves its rights under the Easement to modify
existing, or construct future, electrical facilities, and SRP shall not be responsible for
the effectiveness of Owner’s mitigation system or for its continued effectiveness if
and when SRP exercises such rights.
2.5
Any and all above-ground metal installed by Owner that is accessible to the public
shall be properly grounded and coated with an effective insulating material. Owner
shall periodically inspect and maintain said grounding and insulation.
3. RELOCATION OF OWNER'S IMPROVEMENTS.
3.1
Owner, at its cost, agrees to relocate, modify, or remove any of Owner’s
Improvements that, in SRP’s sole discretion, unreasonably interfere with SRP’s
ability to use the Easement Property for the purposes described in the Easement. In
such event, SRP shall provide written notification to Owner, and Owner shall respond
promptly and exercise due diligence to complete such relocation, modification, or
removal work within the time specified by SRP in its written notification. SRP will
not arbitrarily or capriciously require relocation, modification, or removal by Owner.
3.2
In the event of an emergency or other situation in which the above written notification
is not practical, SRP may relocate, modify, or remove any of Owner’s Improvements
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that, in SRP’s sole discretion, unreasonably interfere with SRP’s ability to use the
Easement Property for the purposes described in the Easement. SRP will not
arbitrarily or capriciously relocate, modify, or remove Owner’s Improvements.
3.3
SRP shall retain the right, but not the obligation, to trim, cut, and clear away any
trees, bushes, cacti, or other landscaping located within or encroaching in any way
upon or above the Easement Property, without prior written notification, whenever
necessary (in SRP’s reasonable discretion) for the convenient and safe exercise of its
rights granted by the Easement.
4. INDEMNIFICATION AND RELEASE.
4.1
To the fullest extent not prohibited by law, Owner shall indemnify, defend, release, and
hold harmless SRP, members of its governing bodies, and its employees (“SRP
Indemnified Parties”) for, from and against any claim, demand, lawsuit, or action of any
kind for damages or loss (whether such damage or loss is to person or property) or any
losses, damages, expenses, and liabilities for damages to property or injury or death
of any person, including but not limited to property or personnel of SRP and Owner,
arising in whole or in part out of: (a) negligent, grossly negligent, or intentional acts or
omissions of Owner, its agents, contractors, officers, directors, members, or employees
(“Owner Indemnifying Parties”); (b) the Owner Indemnifying Parties’ use or occupancy
of the Easement Property as contemplated by this Agreement, including but not limited
to claims by third parties who are invited or permitted onto the Easement Property,
either expressly or impliedly, by Owner or by the nature of the Owner’s Improvements;
or (c) Owner’s failure to comply with or fulfill its obligations established by this
Agreement or by law. The obligation to indemnify shall extend to and encompass all
costs incurred by the SRP Indemnified Parties in defending against claims, demands,
lawsuits or actions, including but not limited to attorneys' and expert fees. Owner’s
obligation under this Section 4.1 shall not extend to claims, demands, lawsuits, or
actions for liability caused by the sole exclusive negligence of the SRP Indemnified
Parties.
4.2
Owner expressly agrees that SRP shall not be responsible for (and Owner shall and
hereby does release SRP from) any loss or damage to Owner’s Improvements that
SRP may cause while exercising its rights granted by the Easement. SRP shall use
reasonable care to avoid or minimize such damage.
4.3
The provisions of Sections 4.1 and 4.2 shall survive termination of this Agreement.
5. GENERAL TERMS AND CONDITIONS
5.1
SRP may revoke this Agreement upon Owner’s failure to comply with its obligations
hereunder. Prior to revocation, SRP shall provide Owner with prior written notice of
default and a reasonable opportunity to cure.
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5.2
The covenants and agreements in this Agreement shall run with and burden the land and
shall extend and inure in favor and to the benefit of, and shall be binding on, Owner and
SRP and their respective successors (including successors in ownership and estate),
assigns, and lessees.
5.3
This Agreement (including exhibits and Owner’s final plans referred to in Section
1.1) constitutes the entire agreement between the parties about Owner’s
Improvements and Owner’s use of the Easement Property, and no understandings or
obligations not expressly stated or referenced in this Agreement shall be binding. No
verbal agreements or conversations with any officer, agent, or employee of either
party shall affect or modify any of the terms or obligations in this Agreement.
5.4
This Agreement may not be modified or any provision waived except by written
agreement executed by both SRP and Owner. The waiver by either party of any breach
or failure to provide full performance under any of the terms and conditions of this
Agreement, or the failure of a party to exercise, or any delay in exercising, any rights or
remedies provided herein or by law, or the failure of a party to notify the other properly
in the event of a breach hereunder shall not be construed as a waiver of any other term or
condition herein, or of any subsequent or continuing breach of the same or any other
term or condition.
5.5
Nothing in this Agreement is intended or shall be construed to confer upon or give
any person or entity other than SRP and Owner (and their respective successors,
assigns, and lessees) any right, remedy or claim under or by reason of this
Agreement. All the terms, covenants and conditions of this Agreement shall be for
the sole and exclusive benefit of SRP and Owner (and their respective successors,
assigns, and lessees).
5.6
This Agreement shall be interpreted, governed by, and construed in accordance with
the substantive and procedural laws of the State of Arizona, without regard to
conflicts of law principles. SRP and Owner agree that any action, suit, or proceeding
arising out of or relating to this Agreement shall be initiated and prosecuted in a state or
federal court of competent jurisdiction located in Maricopa County, Arizona, and the
parties irrevocably submit to the jurisdiction and venue of such court. To the fullest
extent permitted by law, each party hereby irrevocably waives any and all rights to a
trial by jury and covenants and agrees that it will not request a trial by jury with respect
to any legal proceeding arising out of or relating to this Agreement.
THE BALANCE OF THIS PAGE LEFT BLANK INTENTIONALLY.
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IN WITNESS HEREOF the parties hereto have set their hands the day and year first
above written.
SRP:
SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT
By________________________________
Kaye Bockmann, Senior Land Agent
STATE OF ARIZONA )
)ss.
County of Maricopa )
On the ________ day of _________________________, 20______, before me personally
appeared ___________________________, the ________________________________ for the
SALT
RIVER
PROJECT
AGRICULTURAL
IMPROVEMENT
AND
POWER
DISTRICT, and acknowledged that (s)he executed the foregoing instrument on its behalf for the
purposes therein contained.
__________________________________
Notary Public
My Commission Expires:
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RECOMMENDED FOR APPROVAL:
APPROVED AND ACCEPTED:
FLOOD CONTROL DISTRICT
BOARD OF DIRECTORS OF
OF MARICOPA COUNTY
FLOOD CONTROL DISTRICT
OF MARICOPA COUNTY
Michael A. Fulton
Date Chairman of the Board
Director
ATTEST:
Date
Director, Real Estate Department
Clerk of the Board
Date:
STATE OF ARIZONA
)
)ss
COUNTY OF MARICOPA )
Before me,
, Notary Public in and for said County, State of
Arizona, on this day personally appeared ________________, known to me to be the person
whose name is subscribed to the forgoing instrument as Chairman of the Board of the Political
Subdivision in the foregoing instrument.
Given under my hand and seal of the office this
day of
, 20______.
__________________________
Notary Public (signature)
APPROVED AS TO FORM and within the
powers and authority granted under the laws
Of the State of Arizona and Maricopa County
Flood Control District General Counsel Date
CONSENT TO USE OF EASEMENT | August 2019
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9/22/2021
9/23/2021
9/23/2021