LEASE - 2016 AMENDMENT C2014-88A.PDF

FIRST AMENDED AND RESTATED
LEASE AND AGREEMENT TO DEVELOP AND OPERATE
AN URBAN AGRICULTURAL-GARDEN FACILITY
BETWEEN THE CITY OF TEMPE AND SINGH ORGANIC SOILS, L.L,C
C2014-88A

THIS FIRST AMENDED AND RESTATED LEASE AND AGREEMENT TO
DEVELOP AND OPERATE AN URBAN AGRICULTURAL-GARDEN FACILITY
(“Amended Agreement”) between the City of Tempe, an Arizona municipal corporation (“City”
or “Tempe”), and Singh Organic Soils, LLC, an Arizona limited liability company (“Singh
Organic”) (collectively, “Parties”), is entered into this_8th_ day of _December » 2016.

Introductory Clause

In 2014, the Parties entered into an agreement to develop an Urban Agricultural-Garden
in the City of Tempe, Unanticipated regulatory requirements have required the Parties to delay
the project, and City and the Flood Control District of Maricopa County have offered Singh
Organic opportunities to terminate the project because of the difficulties of moving forward with
the project as originally envisioned. Singh Organic has requested, however, to proceed with a
modified project even though implementing a modified project is also uncertain, It is necessary
to modify the original agreement to allow Singh Organic to proceed with a modified project as
allowed herein. The Parties therefore restate and amend the Lease and Agreement to Develop
and Operate an Urban Agricultural-Garden Facility, originally entered into on July 1, 2014,

Amended Agreement

Introductory Clause: The Introductory Clause of this Amended Agreement is
incorporated by reference as if fully set forth herein.

Objective: The Parties agree that the objective of this Amended Agreement
(“Objective”) is to develop a showcase destination in Tempe consisting of a recreational-themed,
all-natural and sustainable urban farm or garden and provide an educational, recreational, and
community gathering place (“Facility”), The Facility will be 100% natural and operated without
use of chemicals, herbicides, or pesticides, The Facility will offer recreational opportunities and
be used to elevate awareness of, and provide opportunities in, sustainable farming, gardening and
turf-raising practices, food nutrition, and environmental issues; provided, however, that operation
of the Facility will not conflict with the primary function of the Indian Bend Wash Outlet
Channel as a flood control facility. These opportunities will be afforded to residents and visitors
of Tempe and Maricopa County, as well as students, teachers, professors, schools, colleges,
universities, researchers, corporations, community groups, garden groups, restaurants, nurseries
and others,

Specific objectives shall include, but not be limited to the following:

a. Operating the Facility in a manner that is 100% natural, without use of chemicals,
herbicides, and pesticides.

b. The Facility providing uses as described in Subsection 6(c).

om Commencing with the fourth year following the execution of this Amended
Agreement, the Facility will be open to the public at least 20 hours each week during at least
eight months each year.

1. Lease and Location. City, in consideration of the rents and covenants provided in this
Amended Agreement, leases to Singh Organic, and Singh Organic leases from City, real
property, and all fixtures and improvements located on the real property (collectively, the
“Premises”), located in the Indian Bend Wash Outlet area, bounded on the north by McKellips
Road and on the south by ‘Curry/Princess Road, legally described on Exhibit A-1 and generally
depicted on Exhibit A-2, both of which are incorporated and made a part of this Amended
Agreement by this reference,

2. Flood Control. Singh Organic acknowledges and agrees that:

a, The real property of the Premises is owned by the Flood Control District of
Maricopa County (“FCDMC”) and is a part of the Indian Bend Wash Outlet Project, a flood
control project constructed by the U.S. Corps of Engineers and operated and maintained by the
FCDMC,

b, FCDMC has the right to utilize the Premises for storm water conveyance and is
not responsible for any damage to any improvement or emblements that may be damaged ‘as a
result of storm water flows.

c. City has authority to enter into this Amended Agreement only in accordance with
Intergovernmental Agreement for the Commercial Recreational Development of Indian Bend
Wash Outlet between the City of Tempe and the Flood Control District of Maricopa County, as
that Intergovernmental Agreement has been amended by Amendment No. 1 (collectively,

"IGA").

d, The IGA is attached to this Amended Agreement as Exhibit B and is incorporated
and made a part of this Amended Agreement by this reference. Any conflicts between this
Amended Agreement and the IGA shall be controlled by the IGA.

€. In accordance with the IGA, any new construction, substantial improvements,
alterations, additions, or major repairs to existing improvements on the Premises shall be subject
to review and approval by FCDMC, as further specified in Subsection 6()(ii) of this Amended
Agreement,

f, Most of the Premises are within a United States Army Corps of Engineers channel
and an existing FEMA-delineated floodplain/floodway. Singh Organic acknowledges that any
improvements such as crops, gardens, etc., could be destroyed and/or negatively impacted by a
flooding event. Neither FCDMC nor City is responsible for any such losses.

g. Nothing shall be done on or to the Premises that interferes with, reduces or
diminishes in any way the existing flood control capacity and/or function of the Premises, as
determined solely by the FCDMC, and FCDMC and City shall have no responsibility or liability
for Singh Organio’s inability to undertake any development, plan, or activity due to the need to
maintain that flood control capacity.

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h. If FCDMC shall determine, in its sole and exclusive discretion, that any
development, operation, or use located on the Premises is causing interference with or otherwise
compromising the flood control ability or capacity of the Indian Bend Wash Outlet, then and in
such event, the offending operations and activities on the Premises shall immediately cease and
shall not be resumed unless and until Singh Organic, is advised, in writing, that operations, or
some of them, may resume. If the offending operations and activities are not stopped, or cannot
be stopped with the continued operation by Singh Organic on the Premises, within a reasonable
period of time after notice of such offending operations or activities, then and in such event, this
Amended Agreement may be terminated, FCDMC and City shall have no responsibility or
liability for Singh Organic’s inability to undertake any operations or activities pursuant to this
subsection; further, FCDMC and City shall have no responsibility or liability if this Amended
Agreement is terminated pursuant to this Subsection,

3. No Warranties by the City,

City leases the Premises to Singh Organic in their current condition, “as is,” with no
representation or warranty by City, as to the quality, condition, or suitability of use, and without
any liability or obligation on the part of City of making any alterations, improvements, or repairs
of any kind on or about the Premises; provided, however, notwithstanding the above provisions,
the City agrees, at City's cost, to construct curb cuts off both Curry Road and McKellips Road.

4, Lease Term. This Amended Agreement shall begin on the date first written above. The
term of the Amended Agreement shall be ten years, with four ten-year renewal options up to a
total maximum of fifty years. So long as the Parties agree that the Amended Agreement’s
Objective is being achieved and the flood control function of the Premises is maintained, Singh
Organic may exercise the renewal option at its discretion subject to the final approval of
FCDMC, which shall not withhold approval if the flood control function of the Premises is
maintained, Written notice of the exercise of the option to renew must be delivered to City at
least six (6) months before the expiration of the Amended Agreement.

5. Rent,

a, During the first three (3) years of the term of this Amended Agreement, there
shall be no rent required to allow for development and start-up of the Facility, For the remaining
years in the term of the Amended Agreement, including during any renewal term, the annual rent
shall be the minimum annual rent amounts specified in Subsection 5(b) or 3% of the annual gross
revenues of the Facility, whichever is greater. Within three (3) months of the end of any year for
which rent is due, Singh Organic shall provide Tempe with records showing its gross annual
revenues for that year. If 3% of that amount is greater than the rent paid for the year, Singh
Organic shall at that time pay the difference to Tempe.

b. Minimum annual rent for the Facility shall be as follows:
Lease Year Minimum Annual Rent
Years 1-3 $0.00
Years 4-5 $15,544.00
Years 6-10 $17,283.00
Years 11-15 $19,440.00

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Years 16-20 $21,866.00

Years 21-25 $24,595.00
Years 26-30 $27,665.00
Years 31-35 $31,123.00
Years 36-40 $35,013.00
Years 41-45 $39,390.00
Years 46-50 $44,314.00
om The minimum annual rent may be paid monthly, in twelve (12) equal payments,

on or before the first day of every month of the year, or, at Singh Organic’s option, may be paid
in full annually on or before the first day of every year, For the purposes of this Section 5, a
“year” shall begin on the first day of the first full month following the execution date of this
Amended Agreement, as specified in the first paragraph, above.

6. Use of the Premises,

a, Singh Organic shall develop the Premises into a showcase destination in Tempe
consisting of a recreational-themed, all-natural and sustainable urban farm and/or garden
(“Facility”) as described in the Objective and may charge fees for admission, participation in
activities, and other uses of the Facility.

b. . By the fourth year following execution of this Amended Agreement, Singh
Organic shall use at least one half acre of the Facility for a community garden and will provide
an opportunity for members of the public to participate to ensure community benefit, Thereafter,
and at such point as the Premises may be legally irrigated and so long as it is legal to do so, as
discussed in Section 7, at least 2 acres of the Facility shall be used for community gardens
available to members of the public, Singh Organic may charge a reasonable fee for such

gardens.

c. In addition, the Facility shall provide all or some of the following uses, so long as
such uses are consistent with the Objective and do not interfere with the flood control function of

the Premises:

t

i. The production of edible organic produce and maierials.

i. Farmers market.

iii, Gardens and/or arboretums.

iv, Demonstration gardens.

v, Seed bank.

vi. Recreational facilities compatible with an urban agricultural-garden

facility, including but not limited to golf, camping, overnight accommodations in
movable units, and obstacle courses.

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vii. Naturalized open-space or other community gathering and event spaces
available for public and private events, including but not limited to lectures, corporate
events, weddings, and other outside entertainment events.

vili. | Vendors compatible with a recreational-themed, urban agricultural-garden
facility, including but not limited to food trucks, food trailers, merchandise vendors and
restaurants,

ix. Facilities and activities that provide education, teaching, and research
activities in the field of organic agriculture and sustainable agriculture.

x, Tours,
xi. Other uses consistent with the Objective and otherwise in compliance with
this Amended Agreement,

d, After the third year of this Amended Agreement, the Facility shall be substantially
operational and operating in compliance with the Objective. If at any point thereafter, City
determines that the Facility is not in compliance with the Objective, the City shall provide
written notice of the deficiencies to Singh Organic. If Singh Organic provides City with written
notice that it disputes City’s determination, the Parties shall enter into Dispute Resolution as
specified in Section 12 of the Standard Terms and Conditions (Exhibit C of this Amended
Agreement). If Singh Organic does not dispute City’s notice of deficiency, it shall, if feasible,
cure the deficiencies within 90 days of receipt of City’s written notice, If it is not feasible to cure
the deficiencies within that time, Singh Organics shall begin to take action to address the
deficiencies within 90 days and then proceed to cure the deficiencies as expeditiously as
possible. Failure to cure shall constitute a material breach and default of this Amended
Agreement, and City may pursue all rights and remedies in accordance with Section 16 of the
Standard Terms and Conditions.

e, The following shall apply to the development of the Facility:

i. Except as otherwise provided by Section 3, and in addition to the permit
described in Item ii, below, Singh Organic acknowledges and agrees that all
development, plans, and activities on the Premises are subject to the normal planning and
zoning processes at the City of Tempe, that Singh Organic must obtain any necessary
approval and variance, together with any applicable use permit, plumbing permit,
building permit, floodplain use permit, and any other applicable governmental permit
necessaty to legally conduct the development, plan or activity on the Premises, and that
Singh Organic is responsible for all normal fees and charges.

ii. In addition to the requirement specified in Item (i) of this Subsection 6(e),
no new construction or substantial improvements, alterations, additions, or major repairs
to existing improvements shall be undertaken on the Premises without Singh Organic first
applying for and obtaining a permit from FCDMC via its Right of Way Use Permit
process, As part of the Right of Way Use Permit process, the FCDMC shall submit the
improvements to the U.S. Corps of Engineers for approval as required. To apply for a
Right of Way Use Permit, Singh Organic shall submit the required documentation and
analysis to the City, including, but not limited to, two complete sets of plans and

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specifications. The City shall transmit the required documentation, analysis, plans and
specifications to FCDMC for review.

f, Singh Organic covenants and agrees that it shall not use the Premises or permit
the Premises to be used contrary to any applicable law, statute, ordinance, or regulation,
including but not limited to all water and environmental laws. Singh Organic covenants that it
will not permit, create, or tolerate any public or private nuisance upon the Premises. Singh
Organic shall to the extent permissible by law, indemnify, defend and hold harmless the City and
FCDMC, including their agents, officers, directors, governors and employees thereof, from and
against any and all loss or expense incurred as a result of any claim or suit of any nature
whatsoever, which arises out of any act or omission of Singh Organic pursuant to this Amended
Agreement, including but not limited to, reasonable attorneys’ fees, court costs, and other
expenses telating to the defense against such claims or litigation, incurred by the City or
FCDMC.

g. Singh Organic shall, at its sole cost and expense, procure any and all necessary
permits, certificates, licenses, and other authorizations required for any and all operations
permitted under this Amended Agreement.

h. Singh Organic shall be solely responsible for arranging for any utility services
needed for its purposes at the Premises and for paying for those utility services.

i. Singh Organic shall not use or permit others to use the Premises for any purposes
other than as expressly stated in this Amended Agreement. Any subordinate use agreements
shall expressly provide that the parties to any subordinate use agreement acknowledge and agree
to the terms of Section 2 of this Amended Agreement. Any subordinate use agreement shall be
consistent with the IGA and this Amended Agreement, and in any dispute between the Parties,
the terms of the IGA and this Amended Agreement shall control. Singh Organic shall provide
copies of any subordinate use agreements to City and FCDMC within thirty (30) days of the
execution of the subordinate use agreement, but the provision of these copies shall not affect
Singh Organic’s responsibility to ensure the consistency of the subordinate use agreements with
the terms of the IGA and this Amended Agreement, which responsibility is solely Singh
Organic’s.

j. Singh Organic and all others who may use the Premises pursuant to this Amended
Agreement shall not, in the use of the Premises, discriminate because of race, color, gender,
gender identity, sexual orientation, religion, national origin, familial status, age, disability, or
United States military veteran status,

k. In the use of the Premises, Singh Organic shall not, nor cause to be, nor allow any
other person to deposit, store, dispose of, place, or otherwise locate or allow to be located on or
within the Premises, any hazardous substances, as that term is defined and/or regulated under any
federal, state, or local statute, ordinance, code, or regulation. In the event any environmental
hazard as defined by any regulatory agency should be found to be present on the Premises at
levels equal to or in excess of the remedial standard, or in the event during the term of this
Amended Agreement any environmental pollution and/or contamination occurs on the Premises
in the form of gradual or sudden pollution or contamination, the same shall be the sole
responsibility of Singh Organic to clean up in a manner approved by the appropriate

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governmental agencies, Singh Organic shall remedy same and obtain all necessary approvals,
except if such contamination were caused by City or FCDMC or as a result of flooding from
adjoining parcels in the Indian Bend Wash Outlet Channels.

L Singh Organic shall provide recognition of City’s and FCDMC’s cooperation in
development of the Facility by including “in cooperation with the City of Tempe and the Flood
Control District of Maricopa County” on signage and on promotional material, so long as such
material provides adequate space for such recognition.

7, Water and Water Use.

a. Singh Organic acknowledges and agrees that the Premises do not have an
irrigation history, as “irrigate” is defined by A.R.S, § 45-402, between the years 1975-1980, do
not qualify for an irrigation grandfathered right under the Arizona Groundwater Code, A.R.S. §§
45-401 ef seq, and currently may not lawfully be irrigated. Singh Organic agrees to comply with
all applicable laws, codes, management plans, and regulations governing irrigation and water
use, including but not limited to the Arizona Groundwater Code. The Parties shall work
cooperatively to achieve the Objective in compliance with the Arizona Groundwater Code,

b. City acknowledges that the Arizona Groundwater Code, A.R.S. § 45-452(E),
allows a state university engaged in the teaching and study of and experimentation in the science
of agriculture to irrigate and to withdraw groundwater for such purposes and agrees that Singh
Organic may enter into such arrangements and agreements with a state university as may
facilitate irrigation on the Premises under this provision of the Arizona Groundwater Code;
provided, however, that Tempe makes no representation or warranty that any such arrangement
is lawful under the Arizona Groundwater Code.

c A well, Arizona Department of Water Resources Well Registration No, 55-
527102; Legal Description A(1-4)11dba, is located on and is a fixture of the Premises and is
included as part of the Premises. Singh Organic may utilize this well for its purposes; provided,
however, that Singh Organic has or obtains a lawful right to, or may otherwise lawfully,
withdraw water from underground in the Phoenix Active Management Area, While the Parties
shall work cooperatively to achieve the Objective in compliance with the Arizona Groundwater
Code as specified in Subsection 7(a), above, Singh Organic expressly acknowledges and agrees
that City is under no duty or obligation to provide such a right or means to lawfully withdraw
water from underground using the well. Ensuring the lawfulness of any underground water
withdrawal is solely Singh Organic’s responsibility and shall be at its sole expense. City makes
no warranty or representation as to the quality, availability, condition, or suitability of use, of the
well or the water produced by the well, and there shall be no liability or obligation on the part of
City of making any alterations, improvements, treatment, or repairs of any kind on or about or
with regard to the well or the water produced by the well.

d. The City Water and Wastewater Utility provides potable water and wastewater
services to the existing “clubhouse” and other parts of the Premises, will continue to do so, and
will provide these services, as requested, to any similar domestic or commercial purposes on the
Premises under the rates set forth on Appendix A of the Tempe City Code, as those rates may be
amended from time to time. Payment for such services shall solely be the responsibility of Singh

Organic.

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8. Maintenance and Repair, During the Amended Agreement Term, Singh Organic, at its
sole cost and expense, shall do and perform the following:

a. Keep the Premises in a neat, clean, pest-free, and debris-free condition, including
but not limited to keeping the Premises free of weeds, pests, dead vegetative materials, garbage,
and offensive odors,

b, Keep the Premises clear of all obstructions or refuse of any kind,

c. Keep and maintain the Premises, including all buildings, fixtures, and
improvements, in good and substantial repair so that the Premises fully comply with all
applicable laws, statutes, ordinances, and regulations, and if deemed necessary by Singh
Organic, provide security for the Premises, including quarters for security or caretakers on the
Premises, provided that the construction of any quarters shall be subject to all other requirements
of this Amended Agreement.

d. In the event the Premises, including all buildings, fixtures, and improvements,
shall be in a condition, need or state of disrepair that Singh Organic cannot continue to occupy
and use the Premises as permitted by this Amended Agreement, neither City nor FCDMC shall
have any obligation to make, or liability for not undertaking to make, any alterations,
improvements, or repairs of any kind to the Premises, buildings, fixtures, or improvements
necessary to continue Singh Organic’s use and occupancy of the Premises, Singh Organic shall
make all alterations, improvements, or necessary repairs necessary to continue to achieve the
Objective, all at Singh Organic’s sole cost and expense in accordance with this Amended
Agreement,

8, An event of force majeure, as set forth in Section 18 of the Standard Terms &
Conditions, shall not affect the maintenance requirements of this Amended Agreement, and
within a reasonable period of time following such an event, the Premises shall be brought into
compliance with the maintenance and repair standards of this Amended Agreement, at the sole
expense of Singh Organic.

f. If City determines at any point that Singh Organic is not in compliance with this
Section 8, City shall provide written notice of the noncompliance to Singh Organic, and Singh
Organic shall cure the noncompliance within 30 days of receipt of City’s written notice or, if it is
not feasible to cure the deficiency within thirty (30) days, shall begin to take action to address the
deficiencies within 30 days and then proceed to cure the deficiencies as expeditiously as
possible. Failure to cure shall constitute a material breach of this Amended Agreement.

9. Alterations and Modifications.

a. All alterations and modifications of the Premises shall be (i) performed and
completed in a good, workman like manner at the sole cost and expense of Singh Organic; (i)
completed in compliance with all applicable laws, ordinances, codes, rules, regulations, and
orders; (iii) done in compliance with Subsection 6(e) of this Amended Agreement, and (iv) shall
become a part of the Premises, and any title shall vest in and be retained by City, except as
otherwise provided by Subsection 12(b).

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b. In addition to complying with all other applicable environmental laws, Singh
Organic shall obtain any required Maricopa County Earth Moving Permit as may be required
under Rule 200 of the Maricopa County Division of Air Pollution Control Requirements, as
amended from time to time. If a Control Plan is required for approval of the Earth Moving
Permit, Singh Organic agrees to submit the Control Plan to the City for review prior to County
submittal, to ensure that all elements of the planned operation are covered.

10. Right of Inspection, Singh Organic agrees to permit City and its agents, contractors, or
employees to enter the Premises at all reasonable times upon reasonable notice for the purposes
of viewing or inspecting the Premises. FCDMC may enter the premises at any time and in any
manner to inspect or to operate and maintain the flood contro! structures or appurtenant works, or
to repair or reconstruct any of its structures or works, or to raise or lower any floodwaters on the
Premises without liability to Singh Organic, the City, or any other party.

11. ‘Taxes. Singh Organic shall be responsible for the payment of all applicable taxes
(personal, privilege, or real estate) or ad valorem and assessments which may be assessed, levied,
ot imposed upon Singh Organic or the Premises during the Amended Agreement Term including
any taxes resulting from Singh Organic’s occupancy and/or-use of the Premises. Singh Organic
shall have the right to lawfully contest the amount of any such taxes or assessments.

12, Termination.

a Prior to or upon termination of this Amended Agreement, City shall inspect the
property and conduct a site inspection. Singh Organic, at the termination of this Amended
Agreement, will give up and surrender the Premises, The Premises shall be surrendered in a
neat, clean, pest-free, and debris-free condition and all fixtures and improvements shall be in
good and substantial repair, all in accordance with the maintenance and repair requirements of
this Amended Agreement. Singh Organic shall be solely responsible for any repair or
maintenance found necessary to bring the Premises, fixtures, and improvements up to the
standards specified by this Amended Agreement,

b. Those fixtures and improvements that are located on the Premises on the
execution date of this Amended Agreement, as specified in the first paragraph, above, shall be
the sole property of City. Those fixtures and improvements installed on the Premises by Singh
Organic during the term of this Amended Agreement may be removed by Singh Organic, at its
sole expense, within 30 days of the termination of the Amended Agreement, provided, however,
that after removal, Singh Organic shall return the Premises to a clean, orderly, and functional
condition, at its sole expense. No fixture or improvement shall be removed if, after such
removal, the Premises are not capable of being restored by Singh Organic to a clean, orderly, and
functional condition, Any fixture or improvement remaining after those 30 days shall be the sole

property of City.

13. FCDMC Concurrence. No future alterations to this Amended Agreement shall be valid
without first getting the written concurrence of the Flood Control District of Maricopa County,
as the landowner of the property,

14. Tempe City Code, Chapter 2, Article VIII, Singh Organic agrees that it will comply
with section 2-603(5) of the Tempe City Code (“TCC”), and will not refuse to hire or employ or

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bar or discharge from employment any person or discriminate against such person in
compensation, conditions, or privileges of employment because of race, color, gender, gender
identity, sexual orientation, religion, national origin, familial status, age, disability, or United
States military veteran status. Singh Organic further agrees to provide a copy of its
antidiscrimination policy to the City's Procurement Officer to demonstrate compliance with TCC
section 2-603(5); if however, Singh Organic has fourteen or less employees, it may attest in
writing to its compliance in accordance with the City’s Affidavit of Compliance.

15. Terms & Conditions.

a. Standatd Terms & Conditions, except for Sections 4(B), 8, 15, 17, 45, 46, and 47,
are attached as Exhibit C and incorporated into and made a part of this Amended Agreement by
this reference, Sections 4(B), 8, 15, 17, 45, 46, and 47 of the Standard Terms & Conditions are

deleted in their entirety.

b. Special Terms and Conditions, except for Sections 4 and 5, are attached as
Exhibit D and incorporated into and made a part of this Amended Agreement by this reference.
Sections 4 and 5 of the Special Terms and Conditions are deleted in their entirety.

c, As provided by Section 25 of the Standard Terms & Conditions, the address of
Singh Organic to receive all notices is:

Singh Organic Soils, L.L.C.
ATTN: Ken Singh

6929 N Hayden Rd Ste C-4 #263
Scottsdale, Arizona 85250

16. Release. By entering into this Amended Agreement, Singh Organic, for itself and its
owners, officers, directors, members, managers, agents, and employees, releases and forever
discharges City, its officers, agents, and employees, and FCDMC, its officers, agents, and
employees, from any claims, causes of action, damages or liabilities, whether asserted or
uhasserted, accrued or not yet accrued, that are based upon, relate to or arise out of the Lease and
Agreement to Develop and Operate an Urban Agricultural-Garden Facility, originally entered
into on July 1, 2014.

IN WITNESS WHEREOF, the parties hereto have executed this Amended Agreement,
this the 8th day ofbecember, 2016.

CITY OF TEMPE

By. Wal br). Ahk

Mark W. Mitchell, Mayor

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C2014-88A

C2014~-88A

ATTEST:

Fie ted vee

Brigitt® M. Kuiper, City Clerk

APPROVED AS TO FORM;

iba —_)

Judith R. Baumann, City Attorney

SINGH ORGANIC SOILS, LLC

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EXHIBIT “A-4”

PARCEL NO. 1:

All that part of the East half of the Northwest quarter of the Northeast quarter of Section 11, Township
1 North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, described
as follows:

BEGINNING at the Northeast corner of said Section 11; thence North 89 degrees 57 minutes 47
seconds West 1319.76 feet along the North line of said Section 11 to the East line of said East
half of the Northwest quarter of the Northeast quarter and the True Point of Beginning; thence
South 0 degrees 53 minutes 36 seconds West 1318.89 feet along the said East line to the
Southeast corner of said East half of the Northwest quarter of the Northeast quarter; thence
North 89 degrees 54 minutes 32 seconds West 653.64 feet along the South line of said East half
of the Northwest quarter of the Northeast quarter to the Southwest corner thereof, thence
North 24 degrees 37 minutes 00 seconds East 1101.27 feet to a point; thence North 9 degrees
00 minutes 00 seconds East 229.47 feet to a point; thence North 88 degrees 17 minutes 57
seconds West 241.24 feet to -a point; thence South 0 degrees 37 minutes 33 seconds West
80.00 feet to a point; thence North 89 degrees 57 minutes 47 seconds West 65.00 feet toa
point on the East line of the West 175 feet of the North 500 feet of said East half of the
Northwest quarter of the Northeast quarter; thence North 0 degrees 37 minutes 33 seconds
East 163.00 feet to a point on the North line of said Section 11; thence South 89 degrees 57
minutes 47 seconds East 484.80 feet along said North line to the True Point of Beginning;

EXCEPT the South 130 feet of the North 163 feet of the East 80 feet of the West 240 feet of the East half
of the Northwest quarter of the Northeast quarter of Section 11, Township 1 North, Range 4 East of the
Gila and Salt River Base and Meridian, Maricopa County, Arizona.

PARCEL NO, 2:

All that part of the south 200 feet of the west 1045.4 feet of the East 1085.4 feet of the Northeast
quarter of the Northeast quarter of section 11, Township 1 North, Range 4 East of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona, described as follows:

BEGINNING at the Northeast corner of sald Section 11; thence North 89 at degrees 57 minutes
47 seconds West 1319.76 feet along the North line of said Section 11 to the Northwest corner
of said Northeast quarter of the Northeast quarter; thence South 0 degrees 53 minutes 36
seconds West 1318.89 feet to the Southwest corner of said Northeast quarter of the Northeast
quarter; thence South 89 degrees 54 minutes 32 seconds East 221.16 along the South line of
said Northeast quarter of the Northeast quarter to the Southwest corner of the subject
property; thence North 1 degree 27 minutes 53 seconds East 170.60 feet along the West line of
said subject property to the True Point of Beginning; thence continuing North 1 degree 27

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minutes 53 seconds East 29.40 feet to the Northwest corner of the subject property; thence
South 89 degrees 54 minutes 32 seconds East 12.83 feet along the North line of said subject
property to a point; thence South 24 degrees 48 minutes 17 seconds West 32.35 feet to the
True Point of Beginning.

PARCEL NO, 3:

The West half of the East half of the West half of the North half of the Southeast quarter of Section 11,
Township 1 North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona;

EXCEPT the North 33 thereof, as conveyed to the United States of America, by Quit Claim Deed
recorded at Book 334 of Deeds, Page 68; and

EXCEPT the undivided one-half interest in and to all oil, gas and mineral rights as reserved by ROBERT
JAMES HIGHT, also known as R.J. HIGHT and HOLLIE HIGHT, his wife, in Deed recorded in Docket 324,

Page 137.

PARCEL NO. 4:

‘The East half of the of East half of the Northwest quarter of the Southeast quarter of Section 14,
Township 1 North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona,
being a part of FARM UNIT “B”;

EXCEPT that part thereof that lies within the North 33 feet of the West 1050 feet of the Northwest
quarter of the Southeast quarter of said Section 11, as conveyed to The United States of America, by
Quit Claim Deed recorded in Book 334 of Deeds, Page 68; and

EXCEPT the South 30 feet; and

EXCEPT the undivided one-half interest in and to all oil, gas and mineral rights as reserved by ROBERT
JAMES HIGHT, also known as R.J, HIGHT and HOLLIE HIGHT, his wife, In Deed recorded in Docket 324,
Page 137; and

EXCEPT commencing at the Southeast corner of the East half of the Northwest quarter of the Southeast
quarter of the said Section 11; thence North (assumed bearing) along the Easterly line of the said East
half of the Northwest quarter of the Southeast quarter of Section 11, 40.00 feet; thence South 89
degrees 07 minutes 08 seconds West, parallel to the Southerly line of the sald East half of the Northwest
quarter of the Southeast quarter of the said Section 11, 30.00 feet to the True Point of Beginning;
thence North parallel to the said Easterly line, 147,50 feet; thence South 89 degrees 07 minutes 07
seconds West, 230.46 feet; thence South 147. 50 feet to a point 40,00 feet North of the said Southerly
line; thence North 89 degrees 07 minutes 07 seconds East, parallel to the said Southerly line, 230.46 feet
to the True Point of Beginning; and

Page 2 of 5

EXCEPT any portion of APACHE INDUSTRIAL PARK UNIT THREE, as recorded in Book 280 of Maps, Page
28, described as follows:

Beginning at the South quarter of said Section 11; thence North 0 degrees 19 minutes 04
seconds East 1326.20 feet along the West line of the Southeast quarter of said Section 11 to the
Southwest corner of the Northwest quarter of the Southeast quarter; thence South 89 degrees
58 minutes 06 seconds East 1280.67 feet to the Southeast corner of said Northwest quarter of
the Southeast quarter; thence North 0 degrees 51 minutes 38 seconds East 187.50 feet along
the East line of said East half of the East half of the Northwest quarter of the Southeast quarter
to the True Point of Beginning; thence continuing North 0 degrees 51 minutes 38 seconds East
450,00 feet to a point; thence North 89 degrees 58 minutes 06 seconds West 167. 93 feet to a
point; thence South 4 degree 59 minutes 24 seconds West 451.65 feet to a point; thence South
89 degrees 58 minutes 06 seconds East 200.46 feet along the North line of the South 187.50 feet
of said East half of the East half of the Northwest quarter of the Southeast quarter to: the True
Point of Beginning; and

EXCEPT any portion lying within APACHE INDUSTRIAL PARK TWO, as recorded in Book 262 of Maps, Page .
12,

PARCEL NO. 5:

All that part of the Northeast quarter of the Northeast quarter of Section 11, Township 1 North, Range 4
East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, described as follows:

BEGINNING at the Northeast corner of said Section 11; thence North 89 degrees 57 minutes 47
seconds West 370.25 feet along the North line of said Section 11 to the TRUE POINT OF
BEGINNING; thence South 0 degrees 02 minutes 13 seconds West 93.0 feet to a point; thence
North 89 degrees 57 minutes 47 seconds West, 320 feet to a point; thence south 15 degrees 40
minutes 18 seconds West, 361.27 feet to a point; thence South 24 degrees 48 minutes 17
seconds West, 746,33 feet to a point on the North line of the South 200 feet of the West 1045.5
feet of the East 1085.4 feet of said Northeast quarter of the Northeast quarter; thence North 89
degrees 54 minutes 32 seconds West, 12.83 feet to the Northwest corner of said parcel; thence
South 1 degree 27 minutes 53 seconds West, 200.00 feet along the West line of sald Parcel to a
point on the South line of said Northeast quarter of the Northeast quarter; thence North 89
degrees 54 minutes 32 seconds West, 221.16 feet to the Southwest corner thereof; thence
North 0 degrees 53 minutes 36 seconds East, 1318,89 feet along the West line of said Northeast
quarter of the Northeast quarter to the Northwest corner thereof; thence South 89 degrees 57
minutes 47 seconds East 950,00 feet along the North line of sald Section 14 to the TRUE POINT
OF BEGINNING;

EXCEPT the South 200 feet of the West 1045.5 feet of the East 1085.4 feet of the said Northeast quarter
of the Northeast quarter.

Page 3 of 5

PARCEL NO. 6:

All that part of the Southwest quarter of the Northeast quarter of Section 11, Township 1 North, Range 4
East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, described as follows:

BEGINNING at the East quarter corner of said Section 11; thence North 89 degrees 48 minutes
15 seconds West 1293.37 feet to the Southeast corner of said Southwest quarter of the
Northeast quarter of sald Section 11 and the TRUE POINT OF BEGINNING; thence North 89
degrees 49 minutes 21 seconds West 865,93 feet along the South line of said Southwest quarter
of the Northeast quarter to a point, thence North 4 degrees 59 minutes 24 seconds East 1001.82
feet to a point; thence North 24 degrees 37 minutes 00 seconds East 349,75 feet: to a point on
the North line of said Southwest quarter of the Northeast quarter; thence South 89 degrees 54
minutes 32 seconds East 653.64 feet along said North line of said Southwest quarter of the
Northeast quarter to the Northeast corner thereof; thence South 0 degrees 53 minutes 36
seconds West 1317.79 feet along the East line of said Southwest quarter of the Northeast
quarter to the TRUE POINT OF BEGINNING,

PARCEL NO. 7:

All that part of the North half of the North half of the Southeast quarter of the Northeast quarter of
Section 11, Township 1 North, Range 4 East of the Gila and Salt River Base and Meridian, Maricopa
County, Arizona, described as follows:

BEGINNING at the East quarter corner of said section 11; thence North 89 degrees 49 minutes
15 seconds West 1293.37 feet along the East-West midsection line to the Southwest corner of
the Southeast quarter of the Northeast quarter of said Section 11; thence North 0 degrees 53
minutes 36 seconds East 988.86 feet along the West line of said Southeast quarter of the
Northeast quarter to the Southwest corner of said North half of the North half of the Southeast
quarter of the Northeast quarter and the TRUE POINT OF BEGINNING; thence continuing North
0 degree, 53 minutes 36 seconds East 328,93 feet to the Northwest corner of said Southeast
quarter of the Northeast quarter, thence South 89 degrees 54 minutes 32 seconds East 146.75
feet along the North line of sald Southeast quarter of the Northeast quarter to a point; thence
South 24 degrees 48 minutes 17 seconds West 362.06 feet to the TRUE POINT OF BEGINNING.

PARCEL NO. 8:

The South 130 feet of the North 163 feet of the East 80 feet of the West 240 feet of the East half of the
Northwest quarter of the Northeast quarter of Section 11, Township 1 North, Range 4 East of the Gila
and Salt River Base and Meridian, Maricopa County, Arizona,

Page 4 of 5

PARCEL NO. 9:

The East half of the West half of the West half of the North half of the Southeast quarter of Section 11,
Township 1 North, Range 4 East of the Gila and Salt River Base and Meridian Maricopa County, Arizona;

EXCEPT the North 33 feet thereof; and

EXCEPT an area described as follows:

BEGINNING at the center of said Section 11; thence South 89 degrees 49 minutes 21 seconds
East 427.26 feet along the North line of said Southeast quarter of said Section 11; thence South
4 degrees 59 minutes 24 seconds West 33.12 feet to the TRUE POINT OF BEGINNING and on the
South line of the North 33 feet of said Southeast quarter; thence South 4 degrees 56 minutes 46
seconds West 715.82 feet to a point; thence North 89 degrees 58 minutes 06 seconds West
45.48 feet to a point on the West line of said West half of the East half of the West half of the
West half of the North half of the Southeast quarter of said Section 11 and is the Northeast
corner of the North 125 feet of the South 580 feet of the East half of the West half of the West
half of the West half of the North half of the Southeast quarter of said Section 11; thence North
O degrees 27 minutes 14 seconds East 713.44 feet along the West line of said West half of the
East halt of the West half of the West half of the North half of the Southeast quarter of said
Section 11 to a point on the South line of the North 33 feet of said Southeast quarter; thence
South 89 degrees 49 minutes 21 seconds East 101,55 feet along said South line to the TRUE

POINT OF BEGINNING; and

EXCEPT those certain parcels of land described in Documents 1987-0745820, 1987-0745821, 1987-
0745822 and 1987-0745823, Records of the Recorder of said Maricopa County.

PARCEL NO. 10:

An Easement Estate created by Contract and Grant of Easement dated December 15, 1975, recorded
December 31, 1975 in Docket 11480, Page 780 for flood control works and channel improvements
purposes lying within the East 620 feet of the West 1050 feet of the North 33 feet of the Northwest
quarter of the Southeast quarter of Section 11, Township 1 North, Range 4 East of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona.

Page 5 of 5

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Flood Control District
EXHIBIT A-2 TO ACCOMPANY LEGAL DESCRIPTION

veRTCIAL RECORDS ox
MARICOPA COUNTY RECORDER
; HELEN PURCELL
20110038055 01/13/2011 04:28

When recorded xeturn to: ELECTRONIC RECORDING
Flood Control Distzict of °
Maricopa County COBAIS-R-1 a]
ohagellas
AMENDMENT NO. |
TO

INTERGOVERNMENTAL AGREBMENT FOR THE COMMERGIAL
RECREATIONAL DEVBLOPMENT OF INDIAN BEND WASH OUTLET
IGA FCD-87030A,
CB7-O5A ,
Cr bee ip OID BED Dw
This Amendment to IGA FCD-87030, City of Tempe No. C8 7-85 (“Amendment”) is
entered this date November 3 | , 2010, between the City of Tampe,
an Arizona mmuloipal corporatton (“Temps”) and the Flood Contyol Disirtot of Marjonpa
_ County, amunieipal corporation and poliloal subdivision of the Stato of Arizona
(‘District’),

This Agrooment is effeolive the date it is fled with the Maricopa County Recorder.

WHEREAS, Tempe and the Distrlot are parties to the intergovernmental Agreement for
the Commerclal Reoreational Development of Indian Bend Wash Outlet, dated Anguat
26, 1987 (“Agrapment”); and

WHEREAS, Tempe and te District desixe to araend the Agreement to clarity the
Distriot’y role tn approving subagreements that Tempe enters into as authorized by the
Agreement,

WHEREAS, Tempe and the Disiviot desire to amend the Agreement to veflect the new
distribution of gross revenue derived from all subagreements that Terape enters into ay
authorized by the Agreement, .

THEREFORE, the parties agree as follows,

1, The foregoing recitals are inoorporatad hereta by this reference,

2, As of the effective date of this Amendment, Seotion 9 states:

“Tempe shall be responsible for entering Into and menaglng sybagraements with private
ontrepreneura for ye of the subject property for commercial reorentlonat development.
Howover, prior to any subagreement becoming valid, or fan pxisting subagroement Js to
be modified In any way, it will first be gubmitted io {he District for review and approval,

‘Tempe und the District will worl collaboratively to engnre the appropriate use of the
subject property, The District will participate with Tempe in loase negotiations to the

_ EXHUBIT B —

extent the Disirict determines necessary to protect Its interests as the fee owner of the
land, This Agreement is the controlling document that governs the nse of the subject
property, notwithstanding any representation to the contrary Ina subagreement or lease
executed under the authority of this Agreement.”

3. Aas of the effective date of this Aniéndment) Section 10 states:

“All gtoss revenues, inoluding base tents, percentages and other Income derived from any
subagteéments related to the development of the subjeot lands shall be shared with the
District as the fee owner of the land, For the period from January 1, 2009, through
December 31, 2013, the District will receive 100% of the ross reventios derived from the
subagreenient(s), Beglaning on January 1, 2014, gross revennes derived from the
subapreement(s) will be divided in the ratio of 20% to Tempe and 80% to the District,
Tempe shall pay to thé District all monies due the District within 60 days of the payment
due date of the lessee(s).”

4, As of the effective date of this Amendment, Section 20 states:

“This Agreement and the obligations of tho parties as herein stated shall terminate upon,
the written agreement of both parties, Thiy Afgreenient siay be amended upon the written
agresment of both parties, By December 31, 2015, the parties will enter into discusslons
soncerning the amendment or termination of this Agrertment.”

3. This Amendment governs where terms conflict with the original Agreement,
However, the original Agreement is applicable wilesg specifically chariged by this
Amendment, The paragraph numbering in this Amendment Is coincidental and is not

intended to indicate that these same nutnbered paragraphs in the Agreement are being
replaced in thelr entirety,

6. The Agreement as modified by this Amendment remains in, full force and effect and
is hereby ratified by Tempe and the District,

Authorized representatives of'the parties have executed this Amendment ag follows,
CITY OF TEMPE

ATTEST:

City Clerk

Reviewed and approved as to forrn and within the powers and authority of the City of
Tempe: -

(ou wd % Clan

City Attorney

BLOOD CONTROL DISTRICT OF MARICOPA COUNTY
RECOMMENDED BY: -

Ae a nf [eate

Timothy 8, Phillips, PE, Chief Engineer and General Manager Date

‘Arto déaebon— Lebo

Michael D, Wilson, Public Works Real Estate Division Manager Date

APPROVED BY:

Cast’ Ag Board

Reviewed and approved as ta form and within the powers and authority of the Flood
Contra) Distret of Marloopa County:

General Counsel