HomeMy WebLinkAboutEasements - 7/29/2010, Resolution 10-49 approving a Water Utility Easement agreement between TOV and Judy & Lan F. ANN RODR I GUE Z, RECORDER DOCKET: 13861
RECORDED BY: LLW PAGE: 680
DEPUTY RECORDER
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1956 PE-2 w O� SEQUENCE: 20101450150
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TOWN OF ORO VALLEY `�' '�' RES
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11000 NLA CANADA 111IZOtit'
ORO VALLEY AZ 85737 MAIL
AMOUNT PAID $ 15.50
10_ 4 9
RESOLDTION NO. (R)
A
RESOLUTION OF THE MAYOR AND COUNCIL OF THE
TOWN OF ORO VALLEY, ARIZONA, AUTHORIZING AND
APPROVING A WATER UTILITY EASEMENT AGREEMENT
BETWEEN THE TOWN OF ORO VALLEY AND JUDY AND LAN
LESTER FOR CONSTRUCTION OF A NEW WATER MAIN AND
TO
CONSTRUCT A WATER RESERVOIR ON ADJACENT
TOWN PROPERTY
Town of Oro Valleyis a political subdivision of the State of Arizona
WHEREAS, the privileges b
with all associated rights, and benefits and is entitled to the immunities
vested
and exemptions granted municipalities and political subdivisions under the Constitution
and laws of the State of Arizona and the United States; and
WHEREAS, pursuant to A.R.S. § 9-511, et seq., the Town has the requisite statutory
landowners
authority to acquire, own and maintain a water utility for the benefit of the
aut y q �
within and without the Town's corporate boundaries; and
Town owns property located at 13000 N. King Air Drive ("Property")
WHEREAS, the p p y
and desires to construct a water reservoir on the Property; and
Judy Lester ("Lesters")WHEREAS, Lan and Jud own property located at 12801 N. King
Air Drive; and
AS the Town desires to construct a water main beneath the Lesters' property
WHERE permanent access for repair and maintenance of the water main; and
and have
In u'
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WHEREAS, the Town desires to construct a new water reservoir on the Town Property
and to have p
ermanent access across the Lesters' property for repair and maintenance of
the water reservoir; and
the Town requires a Water Utility Easement Agreement ("Agreement"),
WHEREAS, q
attached hereto as Exhibit "A", to allow the Town to construct and maintain the water
beneath the Lesters property and giving the Town permanent access to the Town
main p P Y
Property ert for construction and maintenance of a new water reservoir; and
WHEREAS,
it is in the best interest of the Town to enter into the Water Utility
Easement Agreement with the Lesters' in order to construct a water main on a portion of
the Lesters' property and for permanent access to the Town Property.
NOW, THEREFORE BE IT RESOLVED by the Mayor and Council of the Town of
Oro Valley
that the Water UtilityEasement Agreement, attached hereto as Exhibit "A"
and incorporated
herein bythis reference, between the Town of Oro Valley and Judy and
., Lan Lester for the construction of a water main on a portion of the Lesters' property and
for permanent access to the Town's Property is hereby authorized and approved.
PASSED AND ADOPTED by the Mayor and Council of the Town of Oro Valley,
Arizona this 21day of July , 2010.
TOWN OF ORO VALLEY
Sate -
ish I. Hiremath, Mayor
ATTEST: APPROVED AS TO FORM:
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Ka ryn E. Cuvelier, Town Clerk Tobin Rosen, ., n Attorney
Date. 7 'IDDate: -4(1-111°
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C Documents and Settings druiz Local Settings Temporary Internet Files OLDS Resolution.doe Town of Oro Valley attorney's Office ca 071910
EXHIBIT "A"
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WATER UTILITY EASEMENT AGREEMENT
This Water Utility Easement Agreement is entered into this otx da of��1 2010
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between the Town of Oro Valley (the "Grantee") and Lan A. Lester and Judy D. Lester
(the "Grantors"), collectively referred to as the "Parties".
RECITALS
WHEREAS,the Grantors are the owners of that certain real property located at 12801 N.
King Air Drive, Oro Valley, Arizona (the "Grantors" Property) as described in Docket
9441, Page 1977, and recorded in the Office of the Pima County Recorder.
WHEREAS, the Grantee owns property located at 13000 N. King Air Drive
("Property"), as described in Exhibit"A"and attached hereto by this reference.
WHEREAS the Parties desire to enter into this Water Utility Easement Agreement to
facilitate the location of a waterline, as described and depicted in Exhibit "B", attached
hereto and incorporated herein by this reference, for construction of a water main under a
portion of the Grantors Property along N. King Air Drive to the Grantee's property, and
for ingress and egress on, over and through same to Grantee's property.
WHEREAS, King Air Drive is a private road in La Cholla Airpark, the use of which is
not totally controlled by Grantors, and such road is also used as a taxiway by aircraft
which have the right-of-way over vehicles at all times, except as provided for below.
NOW, THEREFORE, in consideration of the following and the mutual conditions set
forth in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree to the following:
1. Grantors hereby grant to Grantee a perpetual non-exclusive water main utility and
access easement, subject to the terms and conditions contained herein, as legally
described and depicted in Exhibit "B", for the purposes of construction and
maintenance of an underground water main line in accordance with the applicable
laws, ordinance, rules and regulations of governmental authorities, and for ingress
and egress to the Grantee's property by Grantee, Grantee's agents, employees and
public officials only.
ant
6
2. The Grantee may use the attached easement (Exhibit "B") for any purposes not
''inconsistent with actual use of this access utility easement for the purposes herein
granted, so long as Grantee's use and access to the easement is not obstructed.
6
3. Hours for construction and noise procedures for construction of the water main
and for construction at the Grantee'sroperty shall be followed in accordance
p
with Oro Valley Town Code, Section 10-1-4.
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4. Once the new pavement is installed after construction of the water main line,
ownership and maintenance of said pavement shall not be the responsibility of the
Grantee.
5. The Grantee's responsibility shall be limited to damage caused by the Grantee's
agents, employees or assigns and only for damage resulting from the actions or
negligence of the same.
6. For any scheduled construction on the easement, Grantee will provide a minimum
of thirty (30) days notice to the Grantors. Emergency repairs shall not require
notice of any kind.
7. In the event future construction is necessary within the easement for Grantee's
needs, Grantee will repair any portion within the easement that is damaged and
return the paved surface to as close to original condition as possible in accordance
with the Town of Oro Valley's Residential Street Standards in place at the time
any repair is made.
8. Upon completion of the water main line, the Grantee's responsibility for any
damage to N. King Air Drive shall be limited to damage caused by its agents,
employees or assigns and only for damage resulting directly from the actions or
negligence of the same and not the result of normal use.
9. The water main construction shall be completed within one hundred and eighty
(180) days of such time that construction begins unless: notwithstanding any other
term, condition, or provision hereof to the contrary, in the event any party hereto
is precluded from satisfying or fulfilling any duty or obligation imposed upon
such party by the terms hereof due to labor strikes, material shortages, war, civil
disturbances, weather conditions, natural disasters, acts of God, or other events
beyond the control of such party, the time period provided herein for the
performance by such party of such duty or obligation shall be extended for a
period equal to the delay occasioned by such events. Any other scheduled or non-
scheduled repairs or maintenance of the water main shall be completed within
thirty(30) days from the time such work begins.
10. The Grantee shall have ingress and egress to the Grantee's Property 24 hours, 7
days per week.
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8
11. The Grantee and/or its contractors shall have use of N. King Air Drive to make
emergency repairs 24 hours a day, 7 days per week.
12. The Grantee shall construct the water main line in accordance with applicable
federal, state and local laws, Town code and regulations and obtain any permits as 4
may be required. All permits obtained shall be at Grantee's expense and any
Town of Oro Valley Property Taxes shall not apply to Grantors land contained
ata 1 tili,I'r,eLts I ('hall;.\irpark keserwar Water I I.a<enxnt.\ieenxnt I e,fer final 2
within the easement as described in Exhibit "B" as long as the Agreement is in
effect
13. The Grantee, at Grantee's expense, will follow Oro Valley Town Code for traffic
control during the construction of the water main line.
14. During the initial water main construction, Grantors agree that aircraft shall not
have the right-of-way on the easement along N. King Air Drive, a private street.
After construction of the water main line and repavement of the road, aircraft will
have the right-of-way on N. King Air Drive.
15. Upon completion of the water main line, the Grantee, at its expense, will lay new
asphalt along N. King Air Drive from Moore Road to the Grantee's property
pursuant to Exhibits "C" and "D", attached hereto and incorporated herein by this
reference. Grantee shall also reestablish the existing drainage swale and properly
tie new paving into Grantors existing driveway apron. After completion of the
new asphalt, the Grantee shall not be responsible for the pavement maintenance.
16. After completion of the construction of the water main line, the Grantee shall
install a seven foot (7') high masonry stucco screen wall (Exhibit "D"). If a
second water tank is built in the future, the seven (7') foot screen wall shall be
moved to screen both tanks and equipment. The Grantee shall maintain the wall
and landscape surrounding the wall.
17. The Grantee, at Grantee's sole expense, will landscape the screen wall (No. 16)
pursuant to Grantee's drawings and Town Code.
18. The Grantors reserve the right to obstruct access to the Grantee's Property along
King Air Drive one (1) day per year at the Grantors expense using barricades at
the entrance of Moore Road and King Air Drive. The Grantee shall be allowed to
move and replace barricades to gain access to N. King Air Drive for repair or
maintenance on the Grantee's Property and/or the water main line.
19. The Grantors, at their sole expense, reserve the right to install or have others
install a private gated entry system across N. King Air Drive on their property at a
location determined by Grantors. The Grantee shall be provided with appropriate
access code/key to the gated entry system.
20. To the extent permitted by law, each party to this Agreement shall indemnify,
defend and hold the other Party, their current and future officers, members,
shareholders, departments, employees and agents, and their respective successors
and assigns ("Indemnitees") harmless from and against any and all suits, actions,
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legal or administrative proceedings, claims, demands or damages of any kind or
nature which result from any act or omission of the indemnifying party, its agents,
employees or anyone acting under its direction or control, whether intentional or
negligent from the start until the finish of the construction of the water main line
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and while performing repair or maintenance of the water main line. The amount
and type of insurance coverage requirements set forth in No. 21 will in no way be
construed as limiting the scope of indemnity in this paragraph. Grantors do not
control the traffic or other use of N. King Air Drive by other easement holders
who are not Grantors agents nor considered Indemnitees, and Grantors shall in no
way have any liability whatsoever for the actions of such others in their use of N.
King Air Drive.
21. The Grantee shall maintain its normal insurance coverage for the construction of
the water main line. Grantee shall require all Contactors performing work on the
easement to provide Grantors with an endorsement to all their insurance policies,
naming Grantors as an additional insured and provide Grantors with Certificates
of Liability Insurance evidencing insurance coverage and providing Grantors with
fifteen (15) days notice of cancellation, modification or non-renewal of policies.
22. The Grantors warrant that they hold good title to the burdened land, and thereby
have the authority and right sign this Agreement.
23. All easements and rights described in this Agreement are easements and rights
running with the land, perpetually in force and effect, and at all times shall inure
to the benefit of, and are binding on, the Grantee and the Grantors, their
successors and assigns,respectively.
24. Reference in subsequent deeds of conveyance, or in any mortgage or deed of trust
or other evidence of obligation, to the easements and rights described in this
Agreement within any subsequent conveyance of the burdened land or assignment
of easement and or easement rights shall be sufficient to create and reserve such
easements and rights to the Grantee, mortgagees, and trustees of such unit of
ownership as fully and completely as though such easements and rights were
recited fully and set forth in their entirety in such documents.
25. In the event either Party fails to cure any breach under this Agreement, the
alleging Party may proceed to seek any remedy available to them in law or equity.
If either Party fails to comply with the requirements of this Agreement, such party
may be deemed to be in breach by the other Party serving notice that they are in
breach of the provisions of this Agreement. Such served party shall have thirty
(30) days from the receipt of written notice of the alleged breach to cure the 1,
breach, unless the default cannot be reasonably cured within the thirty (30) day ,
period, in which case the party in breach shall initiate such cure within thirty (30)
'da s of such notice, and diligently pursue such cure to completion as soon
as
possible, but in no event shall such cure period be extended more than one
hundred and twenty (120) additional days. In the event either party fails to cure
any breach under this Agreement, the alleging party may proceed to seek any
remedy available to them in law or equity. Additionally, in the event Grantee
fails to perform any of their obligations under Sections 15, 16 or 17 according to
the terms contained therein and before the expiration of the cure period, Grantors
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may either: 1) proceed to perform such obligations of Grantee, at Grantee's
expenses and Grantee will pay the costs and charges of such work within thirty
(30 days of demand; or 2) Grantors may proceed to seek any remedy available to
them in law or equity. In the event that any action is filed by either Party or either
Party is required to retain counsel to enforce the terms of this Agreement or seek
any remedy for breach, the prevailing party shall be entitled to receive from the
losing party, in addition to all sums either party may be called upon to pay, all
costs incurred and reasonable attorneys fees. Attorney's fees shall be measured at
the prevailing rate for private attorneys for the specialty of law involved in
litigating this Agreement.
26. Any notice required or permitted to be given pursuant to this Agreement shall be
in writing and shall be served by certified mail upon the other party. When served
by certified mail service shall be conclusively deemed made five (5) days after
posting thereof in the United States mail, postage prepaid, addressed to the party
to whom such notice is to be given as hereinafter provided.
IF TO THE GRANTORS:
Lan A. and Judy D. Lester
P.O. Box 91707
Tucson, Arizona 85752
IF TO THE GRANTEE:
Town Manager
Town of Oro Valley
11000 N. La Canada Drive
Oro Valley, Arizona 85737
Town Attorney
Town of Oro Valley
11000 N. La Canada Drive
Oro Valley, Arizona 85737
Or to such other respective addresses as either party may from time to time
designate in writing.
27. This Agreement is subject to the provisions of A.R.S. § 38-511.
,
28. If any provision of this Agreement or the application thereof to any person or
circumstance shall be held bya court to be unenforceable to anyextent, the
remainder of this Agreement and the application thereof shall not be affected and
shall be enforceable to the fullest extentermitted bylaw.
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29. This Agreement shall not be amended except by written instrument mutually
agreed upon and executed by the Parties.
30. Jurisdiction for any legal dispute stemming from the performance of the terms of
this Agreement shall be limited to courts of competent jurisdiction within Pima
County, Arizona. This clause in no way limits the option of the parties' to resolve
potential disputes through alternative dispute resolution methods.
31. This Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and assigns of the parties.
32. This is the entire Agreement between the Parties. If any portion(s) of this
Agreement is (are) later found to be invalid or unenforceable, such portion(s)
shall be null and void and without any effect on the rest of the Agreement which
shall continue in full force and effect.
33. Time is of the essence in the performance of this Agreement.
34. Upon execution by the Parties, Grantee shall have the Agreement recorded in the
Office of the Pima County Recorder.
IN WITNESS WHEREOF, the Parties have executed or has caused this instrument to
be executed by its proper officers hereunto duly authorized, and the Grantee has caused
this instrument to be executed by its proper officers thereunto duly authorized, all as of
this day and year first above written.
GRANT►. ':
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STA • OF ARIZONA )
) ss.
COUNTY OF PIMA )
On this icl day of _ 1 , 20 (D , Lan A. Lester, known to me I;
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to be the person whose name is ubscribed to the within instrument, personally appeared ;-3,
before me and acknowledged that he executed the same for the purposes contained. 1
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Given under my hand and seal on .0\ 1cl , 20 IQ
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' Mec- &' __: ,''1•
Notary
My Commission Expires: 3 - 1 t---a„CA,r '
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Pima fa County i
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Judy D. Lester
STATE OF ARIZONA )
) ss.
COUNTY OF PIMA )
On this dayofj-t)' 20 ) JudyD. Lester,
, , known to
me to be the person whose narhe is subscribed to the within instrument, personally
appeared before me and acknowledged that she executed the same for the purposes
contained.
Given under myhand and seal on } 20 0.
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Notary
My Commission Expires: 3 -i •
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TOWN OF ORO VALLEY ���•�!!!►�•� T.�• ransie cc�
GRANTEE
/(//, o ounty
Satish I. Hiremath, Mayor
ATTEST: APPROVED AS TO FORM:
Kat n E. Cuvelier, Town Clerk ` —Tobin Rosen, Town Atto y
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Date: Date: 1/14/1b
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EXHIBIT 4
LEGAL DESOF:pT'Or.
2'77.1:.JE...CPFC-CD 20
_.-20 t��?'�=� :3= ,JL1
That portion of the Sc:lth.es t q te= of Sect; n
'6, Township 71
South, Rznge 13 East, Gila a.71d Salt River Mer i d a.n Fi m `sumer
Arizona, descri±ed as follows :
COI NCING at the Southwest corner of said Secticn 26;
Thence North 00 degrees 01 minutes 00 seconds West along the West
line of said Southwest quarter, 1030.00 feet to the POINT OF
BEGINNING;
Thence continue North 00 degrees 01 minutes 00 seconds West, 439.04
. feet;
Thence South 89 degrees 58 minutes 50 seconds East, 509.43 feet;
Thence South 00 degrees 01 minutes 10 seconds West, 135.00 feet;
Thence South 55 degrees 01 minutes 10 seconds West, 530. 00 feet;
Thence South 89 degrees 59 minutes 00 seconds West, 75. 00 meet to the
POINT OF BEGINNING.
Containing 157590 . square feet, or 3. 618 acres, more or less. •
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31029 • y:1\1r STEVEN S.
•' ' O W ENS ,
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EXHIBIT 4
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MOORE ROAD
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SOVIST CORNER
SECTION 26
Jcb 02-84
JAN 04. 2005
L11IOI1 SkETCH FGR E-20FIC WATER RESERVGfR, SECTION 25, Cardinal 425 S. Plume,. 5102
1.11 S., R.13 C. G.& S.R.u., MIA COUNTY, ARIZONA ,- so An3lor�a 1;5719
till.w, a n c u ry e ,n Tel. 520 ;293:9, 336 3603
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EXHIBIT "B"
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DOCKET 11204
PAGE 515
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50 INGRESS, EGRESS, AND UTIUTY EASEMENT
s
DOCKET 12544, PAGE 4219
•
EAST LINE SECTION 27
DOCKET 9441
PAGE 1977 CC
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CC S
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2 31029
i\çWEN5y/PROPOSED WATERLINE EASEMENT1S%9ned01t"
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EXP. 03/31/12
75' INGRESS, EGRESS, AND PRIVATE ROADWAY EASEMENT
DOCKET 5990, PAGE 199
I , POINT OF BEGINNING
_ _ _ _ _ _ _ - _ _ e1 MOORE _ROAD- _ _ _ _
SOUTHEAST CORNER SECTION 27
EXHIBIT SKETCH FOR PROPOSED WATERLINE EASEMENT ON, Cardinal425 S. Plumer, #102
PART OF THE SOUTHEAST 1/4 SECTION 27, T.11 S., R.13 E., 4dy! Tucson, Arizona 85719
G.& S.R.M., PIMA COUNTY, ARIZONA Land SurveyingTel. (520) 798-3603
_FAX (520) 798 3832
EXHIBIT "B"
WATERLINE EASEMENT
An easement for waterline purposes in Section 27, Township 11 South, Range 13
East, Gila and Salt River Meridian, Pima County, Arizona, more particularly
described as follows:
BEGINNING at the Southeast corner of that parcel recorded in Docket 9441, Page
1977, in the Office of the County Recorder of Pima County, Arizona;
Thence South 89 degrees 58 minutes 26 seconds West along the South line of said
parcel, 40.71 feet;
Thence North 00 degrees 01 minutes 00 seconds West, parallel with the East line
of said parcel, 950.27 feet to a point on the North line of said parcel;
Thence South 89 degrees 38 minutes 26 seconds East along said North line, 40.71
feet to the Northeast corner of said parcel;
Thence South 00 degrees 01 minutes 00 seconds East, along the East line of said
parcel, 75.00 feet;
Thence North 89 degrees 38 minutes 26 seconds West, 10.71 feet;
Thence South 00 degrees 01 minutes 00 seconds East, parallel with said East line,
814.00 feet;
Thence South 44 degrees 58 minutes 24 seconds East, 15.16
feet to a point on said East line;
Thence South 00 degrees 01 minutes 00 seconds East, along said East line, 50.34
feet to the POINT OF BEGINNING;
Containing 29905. square feet, or 0.687 acres, more or less.
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EXP. 03/31/12
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EXHIBIT "C"
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