IGA FCD 2006A002.PDF

OFFICIAL RECORDS OF
MARICOPA COUNTY RECORDER
HELEN PURCELL
20070999995 09/07/2007 04:45
ELECTRONIC RECORDING

COB28-16-1-1--
Hoyp

When Recorded Return to:
Contracts Branch
Flood Control District of Maricopa County
2801 West Durango Street
Phoenix, AZ 85009-6399
INTERGOVERNMENTAL AGREEMENT

for

Recreational Use of District Property
By the Maricopa County Parks and Recreation Department

between the
Flood Control District of Maricopa County

and the

County of Maricopa
through the
Parks and Recreation Department

IGA FCD 2006A002
Agenda Item _C-69-08-001-2-00
This Agreement is entered into by and between the Flood Control District of Maricopa County, a
municipal corporation and political subdivision of the State of Arizona, acting by and through its
Board of Directors, hereinafter called the DISTRICT and the County of Maricopa, a body politic
and political subdivision of the State of Arizona, acting by and through its Board of Supervisors,
hereinafter called the COUNTY.

This Agreement shall become effective as of the date it has been executed by all patties.

DATE FILED WITH MARICOPA COUNTY RECORDER

IGA FCD 20064002 PCN 900.02.95 PAGE 1 OF 16

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STATUTORY AUTHORIZATION

1. The DISTRICT is empowered by Arizona Revised Statutes (A.R.S.) Section 48-3603, as
revised, to enter into this Agreement and has authorized the undersigned to execute this
Agreement on behalf of the DISTRICT.

2. The COUNTY is empowered by Arizona Revised Statutes 11-251, 11-933, and 11-952, et
seq., to enter into this Agreement, and has authorized the undersigned to execute this
Agreement on behalf of the COUNTY.

BACKGROUND

3. The COUNTY is developing pedestrian, bicycle, and equestrian trails along with recreation
features as part of a regional trail system throughout Maricopa County. The Maricopa
County Regional Trail System will link many Maricopa County parks and city parks together
and complement existing trails within these parks. The COUNTY wishes to integrate
DISTRICT property into the Maricopa County Regional Trail System and additional
recreation sites. The DISTRICT has frequently made its property available for public
recreational use in areas where DISTRICT property can be made available without
diminishing the flood control operation and maintenance capabilities of the facilities and
structures involved.

4. The DISTRICT’s Policy for the Aesthetic Treatment and Landscaping of Flood Control
Projects, herein referred to as the POLICY, provides general guidance for incorporating
aesthetic and multi-use features into the design and construction of new facilities and
alterations to existing structures. The POLICY encourages multi-purpose uses of flood
control projects to the extent that such uses do not interfere with the function and operation of
the flood control facility and do not significantly increase DISTRICT maintenance
requirements of the facility. The COUNTY will be required to include aesthetic treatments as
an integral part of the designs for all proposed recreation features in accordance with the
POLICY. The DISTRICT may, at the discretion of the Chief Engineer and General Manager,
on a case-by-case basis, cost-share with the COUNTY to the extent provided in the POLICY
sections 4.7, 4.9 and 4.10.

5. The Maricopa County 2020, Eye To The Future, Comprehensive Plan (adopted by the
Maricopa County Board of Supervisors (BOS) October 20, 1997, updated 2002) identifies
DISTRICT property and flood control projects as resources for establishing regional open
space connectivity and trail linkages for recreation and wildlife purposes. The Maricopa
County Regional Trail System will help Maricopa County to meet goals identified in all four
elements of the Comprehensive Plan: Land Use, Transportation, Environmental, and
Economic Development.

6. The Maricopa County Board of Supervisors formed the Maricopa County Trail Commission
in February 2000 to develop a Regional Trail System. Commission members were included
from the Maricopa County Departments of Transportation, Parks and Recreation, Planning
and Development, and the Flood Control District of Maricopa County. Phase One of the
Maricopa County Trail System Plan was adopted by the Maricopa County BOS in September

IGA FCD 20064002 PCN 900.02.95 PAGE 2 OF 16

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2002. Phase Two was adopted by the BOS in October 2003. Phase Three resulted in a
comprehensive trail plan that includes the Maricopa County Regional Trail System Plan
Phases One and Two, and the Hiking and Riding Trails Plan adopted by the BOS in June
1964. The Maricopa County Regional Trail System Plan was adopted by the BOS on August
16, 2004.

The DISTRICT may periodically require a current Trail Master Plan and/or a Recreation Site
Master Plan for portions of the PROJECT to assess the placement of PROJECT features or
the regional impact of the PROJECT.

The DISTRICT operates and maintains greater than ninety flood control facilities including
flood control basins, channels, levees and dams. First and foremost, the safety and function
of the facilities must be maintained throughout the life of each project. It is very important
therefore that multi-use facilities and activities supplemental to the flood control facilities as
described in this Agreement be compatible with the function, operation and maintenance
activities, and safety of the structures. In addition, when the flood control facilities are put to
use during flow events, such multi-use facilities and activities must not interfere with flood
control operations or adversely impact the safety of the structures and must also not create a
public safety flood hazard to the users of the multi-use facilities. It is therefore the full
intention of both parties to this Agreement that public safety and the function and structural
integrity of all flood control facilities must and shall take precedent over all multi-use
facilities and activities under this Agreement and that public safety issues will be evaluated,
addressed, and mitigated, as needed for the safe use by the public of multi-use facilities
located at flood control facilities.

The existing flood control facilities operated and maintained by the DISTRICT in some cases
require overall rehabilitation or replacement. For example the DISTRICT has currently
identified thirteen of the twenty two flood control dams it operates and maintains to be
rehabilitated, replaced or modified for dam safety and flood protection purposes, estimated to
be a 25-year program to complete. Other existing flood control facilities may eventually
require such rehabilitation, replacement or modification work as well. It is essential
therefore, that planning for future multi-use facilities and activities consider the need or
potential need for such future changes to existing flood control facilities.

This Agreement, IGA FCD 2006A002, once formally executed will supersede FCD-IGA
91005 between the DISTRICT and the COUNTY, which authorized recreational use of
DISTRICT Rights-of-Way (ROW) for the implementation of the Sun Circle Hiking and
Riding Trail

PURPOSE

11.

The purpose of this Agreement is to identify and define the roles, rights, responsibilities and
Uabilities of the DISTRICT and the COUNTY regarding the conveyance of easements and
the recreational use and maintenance of DISTRICT property by the Maricopa County Parks
and Recreation Department for the Maricopa County Regional Trail System and additional
recreation sites, herein referred to as the PROJECT.

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TERMS OF AGREEMENT

The DISTRICT shall grant and convey unto the COUNTY a Non-Exclusive Recreational Use

Easement over a proposed PROJECT area, upon COUNTY submittal and subsequent

DISTRICT approval of a PROJECT Easement request and required plans for that area

through the DISTRICT’S Right-of-Way (ROW) Permit Process. Only DISTRICT property

held in fee shall be eligible for an Easement under this Agreement. The following uses are
authorized for Easements conveyed under this Agreement:

12.1. Construction, operation and maintenance of: parks, trails, landscaping, fencing,
signage, lighting, and other related appurtenant structures or improvements including
but not limited to educational and interpretive facilities, rest stations, and facilities for
vehicular parking and parking access.

12.2. Entry upon Easements for vehicular parking and parking access, walking, hiking,
equestrian use, and other related non-motorized trail uses for the use and enjoyment
of the general public.

DISTRICT review shall begin early in the planning phase.

13.1. All proposed trails and associated features shall be reviewed in the conceptual design
phase, and no Easement shall be conveyed over property to be used for trail purposes
without prior DISTRICT approval of conceptual design plans.

13.2. The DISTRICT may require a current Trail Master Plan for portions of the PROJECT
to assess the regional impact of the PROJECT.

13.3. Proposed parks and associated features shall require submittal of conceptual design
plans for a Recreation Site Master Plan for DISTRICT review, and no Easement shall
be conveyed over property to be used for park purposes without prior DISTRICT
approval of a Recreation Site Master Plan.

13.4. The DISTRICT shall determine if a proposed PROJECT area requires a Trail Master
Plan or a Recreation Site Master Plan.

All designs, calculations and required plans for the PROJECT in each Easement area must be

submitted through the DISTRICT ROW Permit Process and approved in writing by the

DISTRICT before the COUNTY or its contractor(s) may begin construction or any work not

included in the maintenance plan for that Easement area.

14.1. DISTRICT ROW Permit shall require final sealed engineer’s plans.

14.2. A DISTRICT ROW Permit shall be required prior to the commencement of any
construction in any Easement area.

All PROJECT Easements shall be conveyed unto the COUNTY and no rights under this

Agreement may be assigned to any other entity without prior written approval from the

DISTRICT.

15.1. The COUNTY may enter into sub-agreements with other agencies, organizations,
and private entrepreneurs for use of PROJECT Easement areas for recreational
purposes, subject to review and written approval of the DISTRICT.

Any commercial or revenue generating activities within PROJECT Easement areas are
subject to prior written approval from the DISTRICT. All revenues received by the

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COUNTY from third parties related to the use of any Easement area under this Agreement

shall be shared equally (50/50) between the DISTRICT and the COUNTY.

16.1. Revenue generated by trail and/or park uses such as entry fees and parking fees shall
be used specifically for trail and/or park improvements and maintenance on
PROJECT Easement areas and will not be subject to revenue sharing.

16.2. Requests for special uses or events, including but not limited to those that are held
specifically in the interest of fundraising for COUNTY trail improvements, may be
negotiated on a case-by-case basis and approved separately in future agreements. _

16.3. All revenue due to the DISTRICT shall be paid in arrears by the COUNTY annually
on the anniversary of the effective date of this Agreement. The COUNTY shall
provide the DISTRICT with any and all records regarding revenue production related
to the use of any Easement granted under this Agreement upon demand by the
DISTRICT.

The DISTRICT may, from time to time, authorize and approve other uses in conjunction with
any Easement conveyed under this Agreement. These uses may be commercial uses,
revenue-generating uses, or any other uses as approved by the DISTRICT; however, the
DISTRICT shall assess the effect that any of these uses may have that will impair the
COUNTY’s use of the Easement area as a public recreational amenity; if the use is found to
create significant negative impact, the DISTRICT will notify the COUNTY thirty (30) days
in advance to allow the County to reasonably mitigate those impacts.

Approval of this Agreement shall not reduce, diminish, amend or otherwise impair any

existing or future property rights owned by or granted to the DISTRICT by virtue of any land

transfer document whether recorded or unrecorded.

18.1. Prior rights, responsibilities, and easements conveyed by the DISTRICT to other
parties in previous Agreements shall supersede the terms of this Agreement, unless
otherwise agreed to in writing.

The term of this Agreement is for fifty (50) years from the effective date and shall be
renewable for successive fifty (50) year terms unless otherwise terminated by the parties.
Easements shall run perpetually with the land, subject to the terms and renewal of this
Agreement. Not withstanding any other terms of this Agreement, the DISTRICT may amend
or cancel any Easement issued under this Agreement for cause deemed to be in the best
interest of the DISTRICT. All Easements issued will be voidable and may be terminated at
the sole discretion of the DISTRICT. If an Easement termination is found to cause
significant negative impact, the DISTRICT will notify the COUNTY thirty (30) days in
advance to allow the COUNTY to reasonably mitigate those impacts. Any termination and
associated costs are subject to the terms stipulated under paragraph 22.10.

This formally executed Agreement, IGA FCD 2006A002, shall supersede FCD-IGA 91005
between the DISTRICT and the COUNTY, recorded in the official records of Maricopa
County, Arizona, Recorder No. 91 588432.

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21. The DISTRICT shall:

21.1. Review all proposed PROJECT areas, conceptual design plans, and Recreation Site
Master Plans submitted by the COUNTY in request for PROJECT Easements and
have the right to approve, disapprove, or request changes.

21.1.1. The DISTRICT shall provide maps and property legal descriptions, to the
extent that information is available, for all property that is owned by the
DISTRICT and being made available for PROJECT Easements under this
Agreement.

21.2. Review all PROJECT designs, calculations, and required plans, for each phase of
improvements within each Easement area and have the right to approve, disapprove,
or request changes.

21.2.1. The DISTRICT shall require the COUNTY to submit final sealed engineer’s
plans in order to issue a ROW Permit.

21.2.2. The DISTRICT shall waive fees for permits and reviews for COUNTY
construction of the PROJECT in Easement areas.

21.2.3. The DISTRICT’s After-the-Fact Permit Fee shall apply if work begins on
DISTRICT ROW prior to the COUNTY obtaining the appropriate ROW
Permit.

21.3. Authorize the COUNTY to enforce state laws and laws of jurisdiction on all
Easements conveyed to the COUNTY by the DISTRICT under the provisions of this
Agreement, including but not limited to the supervision and regulation of recreational
activities and any other public use.

21.4. Participate with the COUNTY in final inspections of each PROJECT phase as
completed in each Easement area, to be scheduled by the COUNTY.

21.5. Jointly with the COUNTY, inspect PROJECT Easement areas periodically to ensure
that the area’s flood control, operation and maintenance capabilities have not been
reduced by the COUNTY’s facilities and/or activities, and that the COUNTY
maintains all Easement areas in a safe condition.

21.5.1. The DISTRICT and the COUNTY shall determine and agree upon in writing
an inspection schedule for each PROJECT Easement area following the final
construction inspection for each PROJECT Easement area.

21.6. Have full access to all PROJECT Easement areas to conduct all flood control facility
management activities and construct any flood control instrumentation, as deemed
necessary by the DISTRICT.

21.7. Be responsible for normal DISTRICT operation and maintenance activities for flood
control purposes in PROJECT Easement areas, which may include the removal of
debris or sediment due to a major flood event.

21.7.1. The DISTRICT shall not be liable for any damages done to amenities as a
result of operation and maintenance activities except for damage done due to

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21.8.

21.9.

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negligence by the DISTRICT, its agents, officers, employees, successors or
assigns.

Provide sixty (60) days written notice to the COUNTY for any deficiencies identified
within a PROJECT Easement area during inspection and request corrective action. If
the COUNTY fails to perform the requested maintenance activity, the DISTRICT has
the right to perform the maintenance activity at the COUNTY’s expense. Such
modifications and associated costs are subject to the terms stipulated under paragraph
22.10.

Indemnify, defend, and hold harmless the COUNTY, its agents, officers, employees,
successors or assigns against any and all claims, actions, costs, expenses or
reasonable attorneys’ fees for property damages or personal injuries or illness,
including death of any persons, caused by any dangerous condition existing on a
PROJECT Easement area prior to the conveyance of that PROJECT Easement to the
COUNTY and the COUNTY’S use of the area, that could not be discovered by
reasonable due diligence by the COUNTY.

22. The COUNTY shall:

22.1.

Submit to the DISTRICT for review, a proposed PROJECT area with conceptual
design plans in request for each PROJECT Easement through the DISTRICT’s ROW
Permit Process. The COUNTY shall incorporate DISTRICT review comments as
necessary.

22.1.1. All information as required by the DISTRICT ROW Permit Process shall be

provided. A DISTRICT Right Of Way Permit will be required for all facilities
and activities in each Easement area.

22.1.2. The COUNTY shall submit a Recreation Site and/or Trail Master Plan for

proposed recreation sites and associated features as deemed necessary by the
DISTRICT.

Submit through the DISTRICT ROW Permit Process all required PROJECT designs,
calculations, and plans, for each phase of improvements within each Easement to the
DISTRICT for review and approval prior to construction of the PROJECT, including
but not limited to conceptual design plans, Recreation Site Master Plans,
construction, signage, fencing, landscaping and aesthetics, irrigation, operation and
maintenance, and use of PROJECT facilities. The same information is to be provided
for any alterations made to areas where plans have already been approved. All plans
shall meet all local safety and design codes. The COUNTY shall incorporate
DISTRICT review comments as necessary.

22.2.1. The COUNTY shall include aesthetic treatment for all proposed recreation

sites and features in accordance with the POLICY and subject to DISTRICT
approval.

22.2.2. The COUNTY shall be required to submit final sealed engineer’s plans in order

to obtain a DISTRICT ROW Permit.

22.2.3. The COUNTY shall obtain a DISTRICT Right of Way Permit prior to the

commencement of any construction in any Easement area.

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22.2.4. The COUNTY shall be responsible to pay the DISTRICT’s After-the-Fact

22.3.

22.4.

Permit Fee for any work that begins on DISTRICT ROW prior to the
COUNTY obtaining the appropriate ROW Permit.

Be responsible for the enforcement of state laws and laws of jurisdiction on all
Easements conveyed unto the COUNTY by the DISTRICT under the provisions of
this Agreement, including but not limited to the supervision and regulation of
recreational activities and any other public use.

Be responsible for design, acquisition of additional rights-of-way beyond Easements,
all permits and inspections, utility relocations, construction, construction
management, operation and maintenance, and all associated costs for the PROJECT.

22.4.1. The COUNTY shall be responsible (@) for the placement of signage in

PROJECT Easement areas used as trails or for other recreational purposes; (ii)
for any modifications to gates, fencing, and maintenance roads desired by the
DISTRICT and/or the COUNTY in order to accommodate pedestrians,
bicycles, horses, and other non-motorized trail uses to facilitate or restrict
access as deemed necessary by the DISTRICT; and (iii) to adequately maintain
access for DISTRICT operations and maintenance.

22.4.2, The COUNTY shall be responsible for (i) removal of graffiti, trash, and debris

22.5.

22.6.

22.8.

from ail Easement areas; (ii) maintaining, repairing and replacing PROJECT
facilities within all Easement areas; (iii) correcting any damage to the flood
control features caused by the agreed-upon recreational facilities and uses of
the PROJECT; and (iv) maintaining the aesthetic and landscaping features in
all Easement areas in a condition deemed appropriate by the DISTRICT. All
DISTRICT requests for corrective action and associated costs are subject to the
terms stipulated under paragraph 22.10.

Obtain all required permits from the DISTRICT and other entities, and COUNTY’s
agent shall post a performance bond for cost of construction of the proposed
PROJECT features, which the DISTRICT shall release upon acceptance of
construction. The DISTRICT agrees to waive fees for permits and reviews for
COUNTY construction of the PROJECT.

Ensure all transportation, recreational, landscaping, and ancillary features comply
with local and state building codes and are in accordance with the DISTRICT’s 221
Agreement with the U.S. Army Corps of Engineers, dated July 21, 1977.

Schedule and participate in final inspections with the DISTRICT for each PROJECT
phase as completed within each Easement area and address or correct any
discrepancies.

Jointly with the DISTRICT, inspect PROJECT Easement areas periodically to ensure
that the area’s flood control, operation and maintenance capabilities have not been
reduced by the COUNTY’s facilities and/or activities, and that the COUNTY
maintains all Easement areas in a safe condition.

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22.8.1. The DISTRICT and the COUNTY shall determine and agree upon in writing
an inspection schedule for each PROJECT Easement area following the final
construction inspection for each PROJECT Easement area.

N
N
oO

Not inhibit the DISTRICT’s unrestricted access to all PROJECT Easements to
conduct flood control O&M activities, inspections, or the construction of flood
control facilities as deemed necessary by the DISTRICT.

22.10. Make modifications to PROJECT facilities if notified in writing by the DISTRICT
that the facilities conflict with the flood control capabilities of the Easement area or
that the Easement area is in an unsafe condition.

22.10.1. If the COUNTY fails to perform any required modifications as requested by
the DISTRICT under the provisions of this Agreement within sixty (60) days
of written notification from the DISTRICT, the DISTRICT reserves the right to
make the modifications at the COUNTY’s expense. The COUNTY shall
reimburse the DISTRICT for any such incurred costs within sixty (60) days of
receipt of an invoice from the DISTRICT.

22.10.2. If the COUNTY fails to reimburse the DISTRICT as provided for in this
Agreement, then the Easement over the modified area may be terminated by
the DISTRICT and improvements shall be removed by the COUNTY and the
property returned to its original condition.

22.10.3. Ifthe COUNTY does not remove said improvements and return the property to
its original condition within sixty (60) days after receipt of notice from the
DISTRICT, the DISTRICT may remove said improvements and modify the
property as deemed necessary by the DISTRICT for flood control operation at
the COUNTY’s expense.

22.10.4. The COUNTY shall reimburse the DISTRICT for any costs incurred under the
provisions of this Agreement (including but not limited to attorney’s fees)
within sixty (60) days after receipt of an invoice from the DISTRICT.

22.11. Indemnify, defend, and hold harmless the DISTRICT, its agents, officers, employees,
successors or assigns against any and all claims, actions, costs, expenses or
reasonable attorneys’ fees for property damages or personal injuries or illness,
including death of any persons, caused by and/or related to the rights and
responsibilities herein granted, including all public recreational and other uses;
provided, however, that the COUNTY shall not indemnify, defend and hold harmless
the DISTRICT, its agents, officers, employees, successors or assigns against any and
all claims, actions, costs, expenses or reasonable attorneys’ fees for property damages
or personal injuries or illness, including death of any persons, caused by and/or
related to rights herein granted, including all public recreational and other uses to the
extent that such damages or injuries are caused by the negligence of the DISTRICT.

22.12. Maintain, at its expense and in full force during the term of this Agreement, public
liability and property damage insurance covering all Easement areas conveyed under
this Agreement and the COUNTY’s occupancy and use thereof against claims for
personal injury and death in the following amounts: $1,000,000/$5,000,000 General
Liability coverage; and $5,000,000 Property Damage coverage.

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22.13. Obtain any additional insurance, adjusting for inflation, or other factors that may be
required by the DISTRICT after a review by the DISTRICT and the COUNTY,
especially if additional uses are added. The DISTRICT understands that the
COUNTY is self-insured and will provide a Certificate of Self-Insurance to the
DISTRICT.

. The COUNTY acknowledges and agrees that the primary purpose of maintenance roads in all

Easement areas is for flood control purposes, and all other uses as allowed in accordance with

this Agreement are secondary uses. The COUNTY shall ensure that (i) the allowed shared

use of any maintenance road within an Easement area by the public shall not interfere with
the DISTRICT’s use of the maintenance road; and (ii) the maintenance road is not damaged
in any way by the PROJECT.

23.1. Maintenance access ramps shall be limited to use only by maintenance crews and
shall not be used for the general public’s recreational use or access to any Easement
area by motorized vehicles, unless approved by the DISTRICT in writing.

23.2. Requests by the COUNTY for any public use of maintenance access ramps will be
considered on a site-by-site basis with PROJECT plan submittals to the DISTRICT,
and will be subject to the review and written approval of the DISTRICT.

23.3. | Maintenance gates, where provided, shall be double locked and provide access to the
DISTRICT for operation, maintenance and inspection as required.

The DISTRICT and the COUNTY acknowledge and agree that it is the intent of this
Agreement to facilitate the conveyance of easements, permitting, and associated
responsibilities for projects in which the COUNTY wishes to use DISTRICT property for
recreational use. The COUNTY may choose to request easements under this IGA for the
Maricopa County Regional Trail System and for other projects. This Agreement will
not prohibit the DISTRICT and the COUNTY from negotiating future projects in separate
agreements. The COUNTY will have the option to negotiate easements with the DISTRICT
separately in future IGAs, and any such agreements may define the responsibilities for the
conveyance of easements outside of this Agreement.

The COUNTY acknowledges that use of any Easement area for public recreational purposes
is not an exclusive right. In the event that other entities express an interest in utilizing
DISTRICT property that overlies any portion of an Easement that has been conveyed to the
COUNTY by the DISTRICT under this Agreement for compatible recreational purposes, the
COUNTY agrees to accommodate these additional uses to the degree practical with the
understanding that allowance of such shared use is at the sole discretion of the Chief Engineer
and General Manager of the DISTRICT.

. The COUNTY acknowledges and agrees that the primary purpose of all Easement areas is to

convey flows and storm water, and further acknowledges the necessity of the DISTRICT’s
review and approval of plans for the facilities, landscaping, irrigation, and maintenance of the
PROJECT to ensure that the structural integrity and function of the flood control facilities in
each Easement area are not compromised by the activities of the COUNTY.

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It is specifically understood that the DISTRICT shall have the sole, absolute, and unrestricted
discretion and authority, without liability to the COUNTY, or any third parties for damages
of any kind, to flood any Easement area and any recreational facilities. Easement areas and
improvements may be flooded with no advance warning.

. The COUNTY agrees that the DISTRICT is not responsible for any damage to any

improvements in any Easement area caused by the impoundment or movement of water and
water-borne materials, including damage due to erosion and/or deposition of sediment and
debris. The COUNTY also agrees that the DISTRICT may need to remove, or require the
COUNTY to remove, specific improvements in order for the DISTRICT to make structural
repairs. The DISTRICT will not be responsible for damage caused by removal of or for
replacing these improvements to make structural repairs to flood control facilities unless
damaged by gross negligence on the DISTRICT’s part. The DISTRICT shall not be
responsible for loss of access and use of any Easement area during periods of time when an
Easement area may be functioning and holding and/or conveying flows and storm water.

. It is specifically understood and agreed that should repair, modification, or maintenance of

the DISTRICT’s flood control facilities within any Easement area be necessary and require
temporary closure of the COUNTY’s recreational facilities, as solely determined by the
DISTRICT, the COUNTY shall, upon receiving such notice from the DISTRICT, cause the
recreational facilities to be temporarily closed. The COUNTY shall be responsible for
testricting public access to the Easement area during this period. The DISTRICT shall give
the COUNTY thirty (30) days written notice for non-emergency closures. The COUNTY, or
its contractors, agents or assigns, will not hold the DISTRICT responsible for any lost profits
or other losses resulting from such temporary closures.

If the DISTRICT determines that the flood control capabilities of any Easement are being
adversely impacted by the COUNTY’s facilities or as a result of improper maintenance (an
“Adverse Impact”), the COUNTY shall have a period of sixty (60) days after written notice is
given by the DISTRICT to correct the Adverse Impact. If the COUNTY does not correct
such Adverse Impact within sixty (60) days after written notice is given, the DISTRICT
reserves the right to correct such condition. All costs and expenses (including but not limited
to attomey’s fees) incurred by the DISTRICT in connection therewith, shall be paid by the
COUNTY to the DISTRICT within sixty (60) days of receipt of written notice, subject to the
terms stipulated under paragraph 22.10.

In the event of a material default by the COUNTY under this Agreement, the DISTRICT will
notify the COUNTY in writing of said default. The DISTRICT shall allow the COUNTY
sixty (60) days from receipt of the notice to correct any deficiencies. If, within sixty (60)
days all noted deficiencies are not corrected to the DISTRICT’s satisfaction, the DISTRICT
may at its sole discretion, unilaterally terminate any Easement conveyed under this
Agreement upon written notice to the COUNTY, subject to the terms stipulated under
paragraph 22.10.

If, in connection with any materials supplied to, or any work done or claimed to have been
done by or on behalf of, the COUNTY or any contractor or subcontractor of the COUNTY in
connection with the COUNTY’s operation and maintenance obligation hereunder, any

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mechanic’s, laborer’s, or materialman’s lien shall be filed against any Easement area or any
part thereof, the COUNTY shall promptly (and in any event within thirty (30) days following
notice from the DISTRICT demanding such discharge) cause the same to be discharged of
record, by payment, deposit, bond, order of a court of competent jurisdiction or otherwise, or
insured over to the satisfaction of the DISTRICT. If the COUNTY shall fail to cause such
lien to be discharged within such thirty (30) day notice period, then, in addition to any other
tight or remedy, the DISTRICT may, but shall not be obligated to, discharge the same either
by paying the amount claimed to be due or by procuring the discharge of such lien by deposit
or bonding. Any amount so paid by the DISTRICT, with all costs and expenses (including
but not limited to attomey’s fees) incurred by the DISTRICT in connection therewith,
together with interest thereon at a rate of ten percent (10 %) per annum (the “Default Rate”)
from the dates of the DISTRICT’s making of the payment or incurring of such costs and
expenses, shall be paid by the COUNTY to the DISTRICT on demand. All possessory
interest taxes and assessments, which become due and payable upon the demised premises, or
other personal property thereon, shall be the full responsibility of the COUNTY, and the
COUNTY shall cause said taxes and assessments to be paid promptly.

Title to any authorized improvements constructed by the COUNTY or its concessionaires,
including buildings, shall vest and remain with the COUNTY, subject to the terms of this
Agreement, and the COUNTY shall be responsible for continuous maintenance thereof.

Any existing or future water rights acquired by the DISTRICT for any Easement area shall
remain the sole property of the DISTRICT.

Both parties to this Agreement shall take reasonable and necessary actions within their
authority to ensure that discharge into each Easement area meets all state and federal
standards for storm water, and that such discharges comply with any applicable requirements
of the Clean Water Act, Arizona or National Pollutant Discharge Elimination System
(AZPDES or NPDES), or any other applicable requirements, including any applicable permit
requirements in any municipal, DISTRICT, or COUNTY permits.

As used herein, “Hazardous Substance” shall have the meaning set forth in the Federal
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601
et seq., as amended 1986, or the Arizona Environmental Quality Act, A.R.S. § 49-101 et seq.,
(uly 1, 1987) and “Regulated Substance” shall have the meaning set forth in Subtitle 1 of the
federal Resource Conservation and Recovery Act (Underground Storage Tanks), 42 U.S.C. §
6991 et seq., as amended 1986, or the Arizona Underground Storage Tank Law, A.R.S. § 36-
3301 et seq., (1986).

The COUNTY and the COUNTY’s agents shall not cause any Hazardous Substance or
Regulated Substance (as those terms are herein defined) to be used, stored, generated, or
disposed of on, in or about any Easement area by the COUNTY or the COUNTY’s agents,
without first obtaining the DISTRICT’s written consent thereto, which consent the
DISTRICT may give or withhold in its sole discretion, and then only in compliance with all
applicable state, federal, or local governmental statutes, laws, permits, ordinances, codes, and
regulations.

IGA FCD 2006A002 PCN 900.02.95 PAGE 12 OF 16

38.

39.

40.

41.

42.

20070999995

In the event the presence of Hazardous Substances or Regulated Substances on, in or about
any Easement area results in contamination of the Easement area, then the COUNTY shall
take any and all necessary actions to return the Easement area to the condition existing prior
to the conveyance of that PROJECT Easement to the COUNTY and the COUNTY’S use or
occupancy of the Easement area. The parties expressly acknowledge and agree that the
COUNTY’s obligations hereunder shall not apply to any contamination caused by the
presence of Hazardous Substances or Regulated Substances placed, used, stored, generated,
or disposed of on, in or about any Easement area by the DISTRICT.

In the event that an Easement is abandoned, or ceases to be used for the purposes intended for
a period of six months after the COUNTY first completes improvements to and commences
use of the Easement, the DISTRICT may terminate said Easement and the COUNTY shall
remove all improvements and return the property to its original condition, or a condition
approved by the DISTRICT. Any termination and associated costs are subject to the terms
stipulated under paragraph 22.10

Either party to this Agreement may with mutual written agreement of both parties delegate
responsibilities to another party. Any delegation, however, shall not relieve the delegating
party of its original responsibilities as defined herein.

The COUNTY will be responsible for the cost of a project compliance and cost audit to be
initiated if requested by the DISTRICT. An independent auditing firm agreed to by both
parties and on contract to the DISTRICT or the COUNTY will perform the audit. Any
payments or reimbursements necessary to bring the PROJECT into compliance with the audit
findings shall be made within sixty (60) days of acceptance by both parties of the audit report.

All notices, requests, demands or other communications (Notices) required by this Agreement
or otherwise given in respect of any transactions contemplated hereby, shall be in writing and
served by personal delivery, telephonic facsimile or deposited with the United States Postal
Service, registered or certified mail, return receipt requested, with proper postage affixed,
addressed and directed to the party to receive the same as follows:

Flood Control District of Maricopa County
Chief Engineer and General Manager

2801 West Durango Street

Phoenix, AZ 85009-6399

Maricopa County Parks and Recreation Department
Director

Headquarters Admin. Offices

234 N. Central Ave, Suite 6400

Phoenix, AZ 85004

42.1. Except as otherwise specifically stated in this Agreement, all Notices shall be
effective upon delivery and shall be deemed delivered on the date and time of
delivery if delivered in person, upon the time and date of confirmed transmission if
delivered by telephonic facsimile or if deposited with the U.S. Postal Service, on the

IGA FCD 20064002 PCN 900.02.95 PAGE 13 OF 16

43.

44.

4S.

46.

47.

48.

20070999995

second business day following the date of mailing. Any party may designate a
different person or entity or change the place to which any Notice shall be given as
herein provided, which Notice shall be effective after the same is actually received by
the other party.

42.2. Both parties shall send written notification to the other of any address changes over
the life of the Agreement.

Each party to this Agreement will pay for and not seek reimbursement for its own personnel
and administrative costs associated with this PROJECT, including but not limited to the
following, unless specifically identified otherwise in this Agreement: permitting,
management and administration.

The personnel of the DISTRICT or of the COUNTY will not for any purpose be considered
employees or agents of the other and each party assumes full responsibility for the actions of
its personnel while performing services under this Agreement, and shall be solely responsible
for their supervision, daily direction and control, payment of salary (including withholding
income taxes and social security), worker’s compensation and disability benefits.

In the case of any dispute over any items in this Agreement, the parties agree to use their best
efforts to enter into good faith negotiations to resolve the disputed matters. However, this
shall not limit the rights of the parties to seek any remedies provided by law.

This Agreement is subject to cancellation by either party pursuant to the provisions of
Arizona Revised Statutes § 38-511.

Attached to this Agreement or contained herein, are the written determinations by the
appropriate attorneys for the parties to this Agreement, that these agencies are authorized
under the laws of the State of Arizona to enter into this Agreement and that it is in proper
form.

If legislation is enacted after the effective date of this Agreement, which changes the
relationship, or structure of one or more parties to this Agreement, the parties agree that this
Agreement shall be renegotiated at the written request of either party.

IGA FCD 20064002 PCN 900.02.95 PAGE 14 OF 16

20070999995

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Municipal Corporation

Recommended by:

TASC Al alos

Timothy S. Phillips, P.E. Date
Chief Engineer and General Manager

Approved and Accepted:

By:

CGlabtin. /Spnte—ty 23 2007
Chairman, Board of Directors Date

Attest:

of the Board 080807 Date

The foregoing Intergovernmental Agreement FCD 2006A002 has been reviewed pursuant to

Arizona Revised Statutes 11-952, as amended, by the undersigned General Counsel, who has

determined ey xt is in Up form and within the powers and authority granted to the Flood
g } Ko Mays County under the laws of the State of Arizona.

IGA FCD 20064002 PCN 900.02.95 PAGE 15 OF 16

20070999995

MARICOPA COUNTY PARKS AND RECREATION DEPARTMENT

Recommended by:

ZALL ¢hleT

RJ. Cardin Date
Director

Approved and Accepted:

Cheba (ten 2.3 2007

Chairman, Board of Supervisors Date

Attest:

Zi WwG23 2007

Geer the Board 08607 Date

The foregoing Intergovernmental Agreement FCD 2006A002 has been reviewed pursuant to
Arizona Revised Statutes 11-952, as amended, by the undersigned Deputy County Attorney, who
has determined that it is in proper form and within the power and authority granted to Maricopa
County under the laws of the State of Arizona.

Deputy County Attorney:

ZZ (Le 7

Date

IGA FCD 2006A002 PCN 900.02.95 PAGE 16 OF 16