CONSERVATION EASEMENT
(Grantee is State of Arizona)
THIS DEED OF CONSERVATION EASEMENT is made this day of
, , by , having
an address at (“Grantor”), in favor
of , having an address at
(“Grantee”).
RECITALS:
WHEREAS, Grantor is the sole owner in fee simple of certain real property in
County, Arizona, more particularly described on Exhibits
A and B attached hereto and incorporated herein by this reference (the “Property”); and
WHEREAS, Grantor and Grantee acknowledge that the Property currently remains in a
substantially undisturbed, natural state, has ecological, open space and historic values, and
provides natural habitat for native plants and wildlife (the unique characteristic of the
Property are defined in Paragraph 2 (c) herein and are referred to collectively as, the
“Conservation Values”);
WHEREAS, the Property has historically been operated primarily as a livestock ranching
operation and Grantor is committed to management of that operation as a sustainable
ranching operation which fosters abundant and diverse native flora and fauna, clean air,
clean water and stable soils, providing for stable economic returns (the "Sustainable
Grazing Practices");
WHEREAS, Grantor and Grantee agree that the healthy ecological condition of the
Property is attributable to the historic use of the Property;
WHEREAS, Grantor and Grantee share the mutual goal of cooperation in an effort to
foster private economic land uses that are compatible with the conservation of significant
ecological values;
WHEREAS, Grantee recognizes the ecological benefits that a sustainable ranching
operation provides to the native flora and fauna, clean air, clean water and sustainable
soils;
WHEREAS, the Conservation Values and the Sustainable Grazing Practices of the
Property are further documented in an inventory of relevant features of the Property, titled
THE EASEMENT DOCUMENTATION REPORT, as amended, dated
and incorporated by this reference (the "Report”), which consists
of reports, maps, photographs, and other evidence that the parties provide, or will provide,
and presents an accurate representation of the condition of the Property currently;
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WHEREAS, the Report is intended to serve as an objective, though nonexclusive,
information baseline for monitoring compliance with the terms of this Conservation
Easement;
WHEREAS, both Grantor and Grantee acknowledge that the Report must be revised
within the next eighteen (18) months to give an accurate inventory of the Conservation
Values of the Property after the most recent growing season cycle;
WHEREAS, Grantor and Grantee believe that protection of the Property, the Conservation
Values and the Sustainable Grazing Practices will preserve the ecological integrity of the
grassland and riparian ecosystems of the San Rafael Valley;
WHEREAS, all of the Conservation Values are of great importance to Grantor and
Grantee;
WHEREAS, Grantor, as the fee simple owner of the Property, owns the affirmative rights
to identify, preserve and protect, in perpetuity, the Property’s open space character, its
significant natural and cultural features and the Conservation Values;
WHEREAS, Grantor desires and intends to transfer such rights to identify, preserve and
protect, in perpetuity, the Property’s open space character, its significant natural and
cultural features and the Conservation Values, to Grantee;
WHEREAS, Grantee has recognized the importance of the preservation of natural areas
using conservation easements by the enactment of A.R.S. Title 33, Chapter 2, Article 4;
WHEREAS, Grantee has enacted A.R.S. § 41-501, et. seq., to acquire interests in real
property to protect natural areas;
WHEREAS, Grantor intends that the Conservation Values and the Sustainable Grazing
Practices of the Property be preserved, enhanced and maintained by allowing only those
land uses on the Property that do not significantly impair or interfere with the
Conservation Values and the Sustainable Grazing Practices, including, those existing land
uses described in the Report;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in exchange of the mutual covenants, terms, conditions and
restrictions contained herein, and pursuant to the law of the State of Arizona, and in
particular A.R.S. § 33- 271, et. seq., the parties hereto agree as follows:
1. RECITALS. The parties hereto acknowledge and agree that the Recitals stated above
are true and correct as of the date hereof.
2. DEFINITIONS. For the purposes of this Conservation Easement, the following terms
shall have the following defined meanings:
(a) "Agricultural Uses" shall be defined as breeding,
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raising, pasturing and grazing domestic livestock and irrigating.crops in the Historic
Fields;
(b) "Associated Improvements" shall mean such buildings, structures, improvements,
living quarters, swimming pools as are customarily appurtenant to comparable single
family ranch dwelling in the vicinity of the Property, including, but not limited to
living quarters in connection with Agricultural Uses on the Property;
(c) "Commercial Feed Lot" shall mean a permanently constructed confined area or facility
within which the land is not grazed or cropped annually, and which is maintained for the
purposes of engaging in the business of the reception and the feeding of livestock for hire;
(d) "Conservation Values" shall mean the aspects of the Property that remain substantially
undisturbed, undeveloped, natural, open space, natural wildlife habitats, areas of
biological diversity and/or ecological importance, short grass prairie, riparian woodland,
cienega marsh and oak woodland on the Property;
(e) " Development Zones" shall mean ;
(f) "Grantor" shall mean , and its successors and
assigns
permitted hereunder;
(g) "Grantee" shall mean the State of Arizona, by and through the State Parks Board, and
its designated agents as may be authorized to undertake certain responsibilities herein;
(h) "Historic Fields" shall mean those agricultural fields shown on Exhibit
where there has been historic crop growing, cattle grazing and related irrigation;
(i) "Residence" shall mean a single family dwelling used primarily for residential purposes;
(j) "River Management Area" shall mean the portion of the Property, whether fenced or
unfenced, consisting of approximately acres that include the and associated
river habitat, which is more particularly shown on the map attached hereto as Exhibit
and incorporated herein by this reference;
(k) "Declining Ecological Condition" shall mean the documented evidence, using the
Report as a baseline standard for monitoring, during two sequential monitoring periods of
a decrease in ground cover or species diversity of native herbaceous perennial plants in
grassland or a decrease of native river trees seedlings and saplings or decrease in ground
cover of native perennial herbaceous plants in the River Management Area;
(l) "Ranch Management Plan" shall mean a written plan of.planned agricultural uses and
activities on the Property developed in cooperation by Grantor and Grantee, which Ranch
Management Plan shall: (i) be reviewed annually by Grantor and Grantee; (ii) prevent any
use of the Property that will significantly impair or interfere with the Conservation Values
and the Sustainable Grazing Practices of the Property; (iii) provide that, in the event of a
Decline in Ecological Conditions is shown, the Grantor and Grantee shall modify The
Ranch Management Plan, and implement changes in management, to correct the cause of
the Decline of Ecological Condition; (iv) provide that within the River Management Area,
no grazing shall occur between April 1 and October 31 of any year; (v) provide that, if a
Decline in Ecological Condition is shown to occur in the River Management Area, the
Grantee may, at its sole discretion, require immediate removal of livestock from the River
Management Area until the cause of the Decline of Ecological Condition in the River
Management Area has been corrected; (vi) provide that the Grantor may employ a
consultant or consult with a third party to develop or update the Ranch Management Plan;
and (vi) provide that Grantor may use the current Ranch Management Plan.
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3. PURPOSE. The parties agree that it is the purpose of this Conservation Easement to: (i)
assure that the Property will be preserved forever in its predominantly open, scenic,
undeveloped and natural condition; (ii) prevent any use of the Property that will
significantly impair or interfere with the Conservation Values of the Property and the
Property’s natural resources and ecosystem; (iii) conserve habitat for wildlife;
(iv) to protect rare and unique native plants and animals currently known or later
identified; (v) conserve the diverse grassland and River vegetative communities; and (vi)
promote the conservation purposes stated in A.R.S. § 33-271(2)(b).
4. GRANT OF EASEMENT AND DEVELOPMENT RIGHTS. In consideration of the
sum of TEN DOLLARS AND 00/100 CENTS ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the parties,
Grantor hereby voluntarily grants, conveys, transfers and sells to Grantee a conservation
easement, in perpetuity, the terms and conditions of which are stated herein (the
Conservation Easement"), over and across the Property, which Conservation Easement
shall be appurtenant to the Property, shall run with the land and shall bind the Grantor and
Grantee in perpetuity, subject to the terms and conditions contained herein. Further, as a
part of this Conservation Easement, Grantor hereby grants to Grantee all development
rights (except as specifically reserved herein) that are now or hereafter allocated to,
implied, reserved or inherent in the Property, and the parties agree that such rights are
terminated and extinguished, and may not be used on or transferred to any portion of the
Property as it is now or hereafter may be bounded or described, or to any other property
adjacent or other wise, nor used for the purpose of calculating permissible lot yield of the
Property or any other property.
5. RIGHTS OF GRANTEE. Grantor hereby grants and conveys the following rights to
Grantee, which rights shall be in addition to, and not in limitation of, any other rights and
remedies available to Grantee:
5.1 To identify, preserve, protect and monitor, in perpetuity, the Conservation Values of
the Property;
5.2 To prevent Grantor or third persons from conducting any activity on or use of the
Property that is prohibited or inconsistent with the Conservation Easement;
5.3 To enter upon the Property (but not building interiors of the Residences), for four (4)
visits per year during the periods commencing , and ending , for a period of
seven (7) days per visit, for the purpose of routine ecological monitoring, Ranch
Management Plan monitoring, archeological survey, and otherwise enforcing monitoring
the terms of this Conservation Easement, provided that, such entry shall be upon
seven (7) days written notice to Grantor, and Grantee shall not in any case unreasonably
interfere with Grantor’s use and quiet enjoyment of the Residence and the Property;
5.4 Upon thirty (30) days written notice to Grantor, and subject to Grantor’s approval,
which shall be in Grantor’s sole discretion, to enter on the Property to engage in ecological
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and/or archeological studies, research and special projects provided that, Grantee shall not
in any case unreasonably interfere with Grantor’s use and quiet enjoyment of the
Residence and the Property;
5.5 To enter upon the River Management Area, for eight (8) visits per year, each visit for a
maximum of two (2) days, to conduct controlled, guided, pedestrian only tours of the River
Management Area, provided that: (i) such entry shall be upon thirty (30) days written
notice to Grantor; (ii) Grantees shall assume full responsibility and liability for the activity
of its personnel and guests; and (iii) such visits shall not in any case unreasonably interfere
with Grantor’s use and quiet enjoyment of the Residence and the Property;
5.6 To enter upon the Property at any time during the term of this Conservation Easement
under emergency circumstances to prevent an imminent default of the terms of this
Conservation Easement or, in Grantee’s sole discretion, to prevent damage or
destruction of the Conservation Values.
6. PERMITTED USES AND PRACTICES .
Subject to the terms and conditions of this Conservation Easement, Grantor reserves to
itself, and its successors, and assigns, all rights accruing from the ownership of the
property, including the right to engage in or permit or invite others to engage in all uses of
the Property that: (i) are not expressly prohibited by this Conservation.Easement; (ii) are
not inconsistent with the terms, conditions, intent and purpose of this Conservation
Easement; and (iii) do not cause immediate or long terms damage, harm, injury,
destruction or loss to the Property, the Conservation Values, the natural habitat, the
wildlife and/or the natural plant life on the Property. Grantor intends to use the Property in
accordance with the terms and conditions of the Conservation Easement for agricultural,
educational, residential and recreational purposes. Without limiting the generality of the
foregoing, and without infringing on the rights of Grantee to protect the Property, the
Conservation Values and the Conservation Easement, the following rights are expressly
reserved:
6.1 The right to engage in domestic livestock grazing and Agricultural Uses consistent with
the Sustainable Grazing Practices and the Ranch Management Plan;
6.2 The right to continue all reasonable manner of existing residential use and enjoyment
of the buildings and grounds of the Development Zones, including but not limited to: (i)
the maintenance, repair and restoration or replacement of existing fences; (ii) the
maintenance of existing driveways and paths; (iii) the maintenance of existing utility lines;
(iv) immediately around any permitted buildings on the Property, the right to cut,
remove and clear grass or other vegetation and to perform routine maintenance,
landscaping, horticultural activities and upkeep, consistent with the purposes of this
Conservation Easement;
6.3 The right, as mutually agreed upon by the Grantor and Grantee regarding the locations,
to construct the following residential/ranch improvements within the boundaries of the
designated parcels: Parcel A: A ten (10) acre area around the existing ranch house
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within which the Grantor may repair, remodel and rebuild existing residence, sheds and
corrals, and the Grantor may construct additional corrals, sheds and or out buildings as
reasonably necessary to facilitate the operation of the ranch or to utilize this site for
residential purposes; Parcel B: A five (5) acre area around the existing shipping corrals
within which the Grantor may repair, remodel and rebuild existing corrals, loading ramps,
etc. and the Grantor may construct additional corrals, ramps, etc. as reasonably necessary
to facilitate the operation of the ranch;
Parcel C: A five (5) acre area around the existing hay barn within which the Grantor may
repair, remodel and rebuild the existing hay.barn, and the Grantor may construct a
maintenance shop. Parcel D: One single family residence may be constructed within a
twenty (20) acre building zone that may be located anywhere on the Property outside of the
River Management Area and such that it is not visually intrusive on the historic ranch
headquarters. Parcels A-D: No residence or outbuilding may exceed 18 feet in height from
natural ground; no barn may exceed 28 feet in height from natural ground. Non-reflective
material shall be used for roofing all structures. Exterior siding, walls and roof of all
buildings shall be earth tones.
6.4 The right, upon the receipt of written approval of Grantee, to clear new trails, construct
new unpaved roads, utility lines, or culverts within the Property, if necessary, in
connection with uses of the Property and only as specifically permitted by this
Conservation Easement.
6.5 The right, upon the receipt of written approval of Grantee, to drill for water on the
Property and to make available water wells and septic systems for any existing or
permitted structures on the Property, provided such wells and pumping does
not: (i) adversely affect wildlife habitat on the Property; (ii) significantly reduce perennial
stream flow at springs or along the Santa Cruz River; (iii) produce no more than 35
gallons-per-minute; and (iv) breach any terms of the Conservation Easement or impair the
Conservation Values.
6.6 NOTE: THIS HAS NOT BEEN DISCUSSED BY PARKS STAFF
The right to conduct educational and non-profit activities provided that they are consistent
with this Conservation Easement.
6.7 The right, on any part of the Property excluding the River Management Area, to cut
dying, dead and downed trees for firewood for domestic use only, provided such activity is
consistent with the Conservation Easement and does not impair the Conservation Values.
6.8 The right to construct, maintain and repair fences and such other structures as are
necessary in connection with the current or future uses of the Property permitted herein,
provided that, any fences constructed or reconstructed shall allow for the safe passage of
wildlife, including pronghorn antelope.
6.9 Hunting by Grantor or permittee of the Grantor, provided that: (i) any hunting is
consistent with the sport hunting regulations of the State of Arizona; and (ii) any hunting
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does not violate the terms of the Conservation Easement and is consistent with the
Conservation Values.
6.10 The right, at a location selected with the mutual agreement of Grantor and Grantee, to
construct and maintain a traditional ranch dump site for non-hazardous waste generated
on.the ranch provided that any such site operated in accordance with all local State and
Federal Environmental Laws, rules, regulations, ordinances and procedures.
7. PROHIBITED USES AND PRACTICES. Grantor expressly agrees, warrants,
represents, promises, covenants, contracts and states that the following uses and practices,
though not an exhaustive or complete list, are specifically prohibited under the
terms of the Conservation Easement and are, per se, defaults under the terms of the
Conservation Easement:
7.1 Any actual, implied, attempted, de facto, proposed or planned partition, division,
subdivision, lot split or sectioning of any portion of the Property;
7.2 Any actual, implied, attempted, de facto, proposed or planned severance, conveyance,
sale, transfer, or export of any ground water, surface water, river water or any actual or
implied water right, from the Property.
7.3 Any actual, implied, attempted, de facto, proposed or planned exploration for or
extraction of oil, gas, hydrocarbons, sand, gravel, rock, minerals, and geothermal energies
and pressures on or below the surface of the Property, except that sand, gravel and rock
may be extracted for use on the Property that is necessary, reasonable and incidental to the
permitted uses.
7.4 Any actual, implied, attempted, de facto, proposed or planned stocking of non-native
fish or wildlife or transfer of fish, amphibians or other organisms to or from catchments,
tanks, springs or creeks.
7.5 Any actual, implied, attempted, de facto, proposed or planned construction or placing
of any improvement, buildings or structure except as expressly permitted under this
Conservation Easement.
7.6 Any actual, implied, attempted, de facto, proposed or planned commercial logging.
7.7 Any actual, implied, attempted, de facto, proposed or planned collecting of natural
vegetation for commercial purposes, except that Grantor shall be permitted to collect
natural vegetation for commercial purposes upon written notice to Grantee and further
provided that any commercial collection does not result in a Declining Ecological
Condition, as defined herein.
7.8 Any actual, implied, attempted, de facto, proposed or planned activity which requires
excessive use of water, such as irrigated crops or a golf course, except those water uses
permitted under the Ranch Management Plan and the Conservation Easement..
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7.9 Any actual, implied, attempted, de facto, proposed or planned planting of non-native
vegetation, except for such uses that have historically been part of the ranching operation
on the Property.
7.10 Any actual, implied, attempted, de facto, proposed or planned underground storage
tanks for petroleum or other polluting substances.
7.11 Any actual, implied, attempted, de facto, proposed or planned storage or use of
biocides or chemical fertilizers, except for those permitted under the Ranch Management
Plan and the Conservation Easement.
7.12 Any actual, implied, attempted, de facto, proposed or planned: (i) feeder pig
operations, slaughtering, hog finishing operations, cattle feed lot operations, Commercial
Feed Lot; (ii) commercial raising of poultry in confined spaces; (iii) other similar
operations whereby livestock, poultry, or other animals are raised in an unreasonable
continuous confined or controlled environment; and (iv) cattle feeding operation which is
not permissible under the terms of the Ranch Management Plan; provided that, nothing
herein shall prevent Grantor from seasonally containing livestock into an area for feeding
or the leasing of pasture for the grazing of livestock by others, subject to this Conservation
Easement;
7.13 Any actual, implied, attempted, de facto, proposed or planned mobile homes, travel
trailers, tent trailers, self-propelled recreational vehicles and like structures or vehicles
located or used on the Property, except for vehicular campers owned by Grantor or guests
may be parked on the Property to accommodate reasonable visitation;
7.14 Any actual, implied, attempted, de facto, proposed or planned (i) dumping of trash or
other garbage on the Property, excluding the ranch dump permissible under Paragraph
6.10; or (ii) keeping of junked or wrecked vehicles, junked farm equipment, or similar
items on the Property.
7.15 Any actual, implied, attempted, de facto, proposed or planned installation of above
ground utilities (i.e. telephone, electric, cable TV, etc.), provided, however, Grantor shall
be permitted to install reasonably necessary below ground utilities for the Residence and
other Associated Improvements upon the written approval of Grantee, which shall not be
unreasonably withheld.
7.16 Any actual, implied, attempted, de facto, proposed or planned paving of roads using
asphalt or concrete.
7.17 Any actual, implied, attempted, de facto, proposed or planned diversion or pumping
water from any perennial spring.
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7.17 Any actual, implied, attempted, de facto, proposed or planned modification of the
topography of the Property through the placement thereon of soil, land fill, dredging spoils,
or other material.
8. APPROVAL BY GRANTEE. Grantor agrees in this Conservation Easement to obtain
from Grantee prior written approval prior to undertaking certain permitted activities under
the terms of this Conservation Easement more particularly stated in this Conservation
Easement.
8.1 Whenever written approval of the Grantee is required under the terms of this
Conservation Easement, Grantor shall notify Grantee in writing at least 60 days prior to the
date Grantor intends to undertake the proposed activity. The notice shall describe the
nature, scope, design, location and timetable of the proposed activity in sufficient detail to
permit Grantee to make an informed judgment as to its consistency with the purpose
of this Conservation Easement.
8.2 Grantee agrees to timely review the terms of request and in writing to Grantor either:
(i) grant it’s approval to the requested activity; (ii) withhold its approval to the requested
activity; or (iii) request further specific information to make an informed decision.
8.3 In the event Grantee refuses to approve a proposed activity in writing, such writing
shall state with reasonable specificity the reasons for withholding of concurrence, and the
conditions, if any, on which concurrence might otherwise be provided.
8.4 Should Grantee fail to deliver its written response to Grantor’s notice within: (i) sixty
(60) days of receipt of Grantor’s notice; or (ii) sixty (60) days of receipt by Grantee of
Grantor’s additional adequate information to evaluate the proposed activity, whichever is
later, the proposed activity shall be deemed to be approved.
8.5 Grantor and Grantee agree that, in the event either party requests the other’s written
approval for any activity permitted under this Conservation Easement, Grantor and Grantee
shall not unreasonably withhold approval.
9. DEFAULT AND REMEDIES .
9.1 If a dispute arises between the parties with respect to this Conservation Easement,
Grantor and Grantee agree to use non-binding arbitration to attempt to resolve the dispute.
Grantor agrees not to proceed with any proposed use or activity pending resolution of the
dispute. The arbitrator shall be mutually approved. The arbitration shall be conducted in
accordance with the rules of the American Arbitration Association. Nothing herein shall
be interpreted to prevent resort to judicial proceedings for injunctive relief or otherwise to
prevent imminent harm to the Conservation Values, to enjoin a violation pursuant to
paragraph 9.2, or to enforce an arbitration decision, all according to the laws of the State of
Arizona.
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9.2 If Grantee determines that Grantor is in default of the terms of the Conservation
Easement or that a default is threatened, Grantee shall give written notice to Grantor of
such default and demand corrective action sufficient to cure the default and, where the
default involves injury to the Property resulting from any activity inconsistent with the
purpose of this Conservation Easement, to restore the portion of the Property so injured. If
Grantor fails to cure the default within thirty (30) days after receipt of such notice, or under
circumstances where the default cannot reasonably be cured with a thirty (30) day
period, fails to begin curing such default within the thirty (30) day period, or fails to
continue diligently to cure such default until finally cured, then the Grantee may bring an
action at law or in equity in a court of competent jurisdiction to enforce the terms of this
Conservation Easement, to enjoin the default by temporary or permanent injunction, to
recover any damages to which it may be entitled for default of the terms of this
Conservation Easement or injury to any protected uses or Conservation Values,
including damages for any loss thereof, and to require the restoration of the Property to the
condition that existed prior to any such injury. If upon receipt of notice from the Grantee
the Grantor fails to cease the activity which caused the default, the Grantee may bring
immediate action at law to enjoin the default by temporary or permanent injunction.
9.3 Enforcement of the terms of this Conservation Easement shall be at the discretion of
each party, and any forbearance by a party to exercise its rights under this Conservation
Easement in the event of any breach of any term of this Conservation Easement shall not
be construed to be a waiver of such term or of any subsequent breach of the same or any
other term of this Conservation Easement or of any such party’s rights under this
Conservation Easement. No delay or omission by a party in the exercise of any right or
remedy upon any breach shall impair such right or remedy or be construed as a waiver.
9.4 Nothing contained in this Conservation Easement shall be construed to entitle Grantee
to bring any action against Grantor for any injury to or change in the Property resulting
from causes beyond Grantor’s control, including, without limitation, acts of trespassers,
fire, flood, storm, drought, pests, earth movement, and major vegetative disease, or from
any prudent action taken by Grantor under emergency conditions to prevent, abate or
mitigate significant injury to the Property resulting from such causes. Notwithstanding the
foregoing, nothing herein shall preclude Grantor’s and Grantee’s rights to pursue any third
party for damages to the Property from vandalism, trespass or any other violation of the
terms of this Conservation Easement.
9.5 In connection with any action to enforce the terms of this Conservation Easement, the
prevailing party shall be entitled to award of attorneys’ fees in accordance with Arizona
law. All reasonable costs incurred by Grantee in enforcing the terms of this Conservation
Easement against Grantors, including, without limitation, costs and expenses of suit and
reasonable attorneys’ fees, and any costs of restoration necessitated by Grantor’s
violation of the terms of this Easement shall be borne by Grantors.
9.6 The terms of this Conservation Easement shall not be enforced by any person who is
not a party to this agreement. The parties to the agreement do not intend to cause or allow
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any person to claim to be a third party beneficiary who has any right to enforce or interpret
any terms of this agreement.
9.7 To the extent applicable, the parties agree to make use of mandatory arbitration
pursuant to A.R.S. § 12-133.
10. COSTS, INSURANCE, ENVIRONMENTAL, TAXES. Grantors retain all
responsibilities and shall bear all costs and liabilities of any kind related to the ownership,
operation, upkeep, and maintenance of the Property. Grantors remain solely responsible for
obtaining any applicable governmental permits and approvals for any construction or other
activity or use shall be undertaken in accordance with all applicable federal, state, and
local laws, regulations, and requirements.
10.1 Grantors shall pay before delinquency all taxes, assessments, fees, and charges of
whatever description levied on or assessed against the Property by competent authority
(collectively “taxes”), and shall furnish Grantee with satisfactory evidence of payment
upon request.
10.2 Grantors, at its expense, shall, at all times during the term of this Conservation
Easement, maintain in full force a policy or policies of comprehensive general liability
insurance, including property damage, written by one or more responsible insurance
companies licensed to do business in the State of Arizona, each policy to be written on an
occurrence basis, which shall insure Grantor and Grantee against liability for injury to
persons, property and death of any person occurring in, on or about the Property, or arising
out of Grantor’s maintenance, use or occupancy of the Property. All general liability and
personal property damage policies shall contain a provision that Grantor,
shall be named as an additional insured and shall permit recovery for any loss occurred by
reason of the negligence of Grantor or its agents, employees, sublessee or servants. All
policies shall have a combined value of not less than TEN MILLION DOLLARS
($10,000,000). Within ten (10) days of issuance of any new policy, commitment or
renewal, a certificate of such policy, renewal or commitment shall be delivered to Grantee.
Any failure of Grantor to maintain the insurance policies under this Conservation
Easement or failure to deliver to Grantee a copy of the policy, commitment or renewal
shall be deemed a default under this Conservation Easement.
10.3 If, at any time, there occurs, or has occurred, a release in, on, or about the Property of
any substance now or hereafter defined, listed, or otherwise classified pursuant to any
federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or
otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to
human health or the environment, Grantors agree to take all steps necessary to assure its
containment and remediation, including any cleanup that may be required, unless the
releases was caused by the Grantee, in which case Grantee shall be responsible therefor.
10.4 Nothing in this Easement shall be construed as giving rise, in the absence of a judicial
decree, to any right or ability in Grantee to exercise physical or managerial control over the
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day-to-day operations of the Property, or any of Grantors’ activities on the Property, or
otherwise to become an operator with respect to the Property within the meaning of The
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended (“CERCLA”).
10.5 Grantors hereby release and agree to hold harmless, indemnify, and defend Grantee
and its Governor, Representatives, Senators, members, directors, officers, employees,
attorneys, agents, and contractors and the heirs, personal representatives, successors, and
assigns each of them (collectively “Indemnified Parties”) from and against any and all
liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of
action, claims, demands, orders, judgments, or administrative actions, including, without
limitation, reasonable attorneys’ fees, arising from or in any way connected with: (i) injury
to or the death of any person, or physical damage to any property, resulting from any act,
omission, condition, or other matter related to or occurring on or about the Property,
regardless of cause, (excluding any liability directly attributable to the negligence of one or
more of the Indemnified Parties); (ii) the violation or alleged violation of, or other failure
to comply with, any state, federal, or local law, regulation, or requirement, including,
without limitation, CERCLA, by any person other than any of the Indemnified Parties, in
any way affecting, involving, or relating to the Property; and (iii) the presence or
release in, on, from, or about the Property, at any time, of any substance now or hereafter
defined, listed, or otherwise classified pursuant to any federal, state or local law,
regulation, or requirement as hazardous, toxic, polluting, or otherwise threatening to
human health or the environment (excluding any liability directly attributable to one or
more the Indemnified Parties).
11. CONDEMNATION.
If all or any part of the Property taken by exercise of the power of eminent domain or
acquired by purchase in lieu of condemnation, whether by public, corporate, or other
authority, so as to terminate this Conservation Easement, in whole or in part, Grantors and
Grantee shall act jointly to recover the full value of the interests in the Property subject to
the taking or in lieu purchase and all direct or incidental damages resulting therefrom. All
expenses reasonably incurred shall be paid out of the amount recovered.
12. SUBSEQUENT TRANSFERS.
Prior to any transfer, sale, grant, conveyance, gift, deed, divestiture, lease, hypothecation,
quitclaim, mortgage or other assignment of any or all of its interest in the Property
(collectively, "transfer"), Grantor shall provide written notice of the transfer to Grantee at
least thirty (30) days before the transfer. Such notice shall contain such reasonable
information for Grantee to conduct its obligations and activities with the entity that is the
subject of the transfer. Grantor agrees to incorporate the terms of this Conservation
Easement by reference in any deed or other legal instrument by which Grantor conducts a
transfer, including, without limitation, a leasehold interest.
13. NOTICE. Any notice, demand, request, consent, approval, or communication that
either party desires or is required to give to the other shall be in writing and delivered by
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first class mail, postage pre-paid, certified mail, return receipt requested, addressed as
follows:
To Grantors:
To Grantee:
or to such other address as either party from time to time shall designate by written notice
to the other.
14. RECORDATION. Grantee shall record this instrument in timely fashion in the
official records of County, Arizona, and may re-record it at any
time as may be required to preserve its rights in this Conservation Easement.
15. GENERAL PROVISIONS.
15.1 Controlling Law. The interpretation and performance of this Conservation Easement
shall be governed by the laws of the State of Arizona.
15.2 Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Easement shall be liberally construed in favor of the
grant to effect the purpose of this Conservation Easement and the policy
and purpose of A.R.S. § 41-501; 33-271, et. seq., Title 33, Chapter 2, Article 4. If any
provision in this instrument is found to be ambiguous, an interpretation consistent with the
purpose of this Conservation Easement that would render the provision valid shall be
favored over any interpretation that would render it invalid.
15.3 Severability. If any provision of this Conservation Easement, or the application
thereof to any person or circumstance, is found to be invalid, the remainder of the
provisions of this Conservation Easement, or the application of such provision to persons
or circumstances other than those as to which it is found to be invalid, as the case may be,
shall not be affected thereby.
15.4 Entire Agreement. This instrument sets forth the entire agreement of the parties with
respect to the Conservation Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
15.5 Amendment. If circumstances arise under which an amendment to or modification of
this Conservation Easement would be appropriate, Grantor and Grantee may by mutual
written agreement jointly amend this Conservation Easement. Any such amendment shall
be consistent with the purpose of this Conservation Easement, shall not affect its perpetual
duration, and shall not permit any impairment of the significant Conservation Values of the
Property. Any such amendment shall be filed in the Registry of Deeds of
County, Arizona, after all required signatures have been affixed
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thereto. Nothing in this paragraph shall require Grantor or Grantee to agree to any
amendment or to consult or negotiate regarding any amendment.
15.6 Extinguishment. If circumstances arise in the future that render the purpose of this
Conservation Easement impossible to accomplish, this Conservation Easement can only be
terminated or extinguished, whether with respect to all or part of the Property, by judicial
proceedings in a court of competent jurisdiction. Unless otherwise required by applicable
law at the time, in the event of any sale of all or a portion of the Property (or any other
property received in connection with an exchange or involuntary conversion of the
Property) after such termination or extinguishment, and after the satisfaction of prior
claims and net of any costs or expenses associated with such sale, Grantor and Grantee
shall divide the proceeds from such sale (minus any amount attributable to the value of
improvements made by Grantor after the effective date of this Conservation Easement,
which amount is reserved to Grantor) in accordance with their respective percentage
interests in the fair market value of the Property, as such percentage interests are
determined under the provisions of paragraph 8.3, adjusted, if necessary, to reflect a partial
termination or extinguishment of this Easement. All such proceeds received by Grantee
shall be used by Grantee in a manner consistent with Grantee’s conservation purposes
15.7 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor’s title in any respect.
15.8 Successors. The covenants, terms, conditions, and restrictions of this Conservation
Easement shall be binding upon, and inure to the benefit of, the parties, hereto and their
respective personal representatives, heirs, successors, and assigns and shall continue as a
servitude running in perpetuity with the Property. The terms “Grantors” and “Grantee,”
wherever used herein, and any pronouns used in place thereof, shall include, respectively,
the above-named Grantors and their personal representatives, heirs, successors, and
assigns, and the above-named Grantee and its successors and assigns.
15.9 Termination of Rights and Obligations. A party’s rights and obligations under this
Conservation Easement terminate upon transfer of the party’s interest in the Conservation
Easement or Property, except that liability for acts or omissions occurring
prior to transfer shall survive transfer.
15.10 Captions. The captions in this instrument have been inserted solely for convenience
of reference and are not a part of this instrument and shall have no effect upon construction
or interpretation.
15.11 Cancellation. This Conservation Easement is subject to cancellation per A.R.S. §
38-511.
15.12 No Subordination. Upon recordation in the records of the Santa Cruz County
Recorder, this Conservation Easement shall be deemed superior to all after acquired
property interests in the Property. Grantee shall have no obligation to subordinate
its rights and interests in this Conservation Easement to any party.
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TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantors and Grantee have set their hands on the day and year
first above written.
Grantors
Grantee
by
its
{ADD NOTARY BLOCKS}
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