HomeMy WebLinkAboutResolution 2002-103 development agreement with new west materialsMARANA RESOLUTION NO. 2002-103
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA,
ARIZONA, AUTHORIZING THE APPROVAL AND EXECUTION OF A DEVELOPMENT
AGREEMENT BETWEEN THE TOWN OF MARANA, AND NEW WEST MATERIALS, FOR
THE DEVELOPMENT OF PROPERTY LEASED BY NEW WEST MATERIALS.
WHEREAS, New West Materials ("New West") leases approximately 400 acres of real
property, subject to certain mutually agreed binding conditions imposed as a condition of a Significant
Land Use Change; and
WHEREAS, New West desires to operate a sand and gravel facility on said property; and
WHEREAS, the staff of the Town has prepared the Development Agreem, ent attached hereto
as Exhibit "A" and incorporated herein by this reference; and
WHEREAS, the attached Development Agreement provides assurances that the development
of the property owned by New West will conform to the rules and regulations of the Marana
Development Code, the aforementioned mutually agreed binding conditions, and other Town
ordinances, rules, regulations and state laws; and
WHEREAS, pursuant to A.R.S. § 9-500.05, the Town is authorized to enter into development
agreements relating to property in the Town; and
WHEREAS, the Mayor and Council have determined that the terms of the Development
Agreement are unobjectionable and do not conflict with the Town's general plan or with the interests of
the Town or its residents; and
WHEREAS, the Mayor and Council have determined that approval of the Development
Agreement is in the best interests of the Town and its residents.
NOW, THEREFORE, BE IT RESOLVED bythe Mayor and Council of the Town of Marana,
Arizona, that the Development Agreement, attached hereto as Exhibit "A" and incorporated herein by
this reference, is hereby approved.
BE IT FURTHER RESOLVED by the Mayor and Council that the Mayor is hereby authorized
to execute the Development Agreement on behalf of the Town of Marana.
Marana, Arizona Resolution No. 2002-103 Prlige 1 of 2
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
17th day of September, 2002. ~.
Mayor~Y SUTTON, JR.
ATTEST:
~°celyn (~Entz
Town Clerk
Daniel J. Hochuli, Esq.
As Town Attomey
and not personally
Marana, Arizona Resolution No. 2002-103 Piige 2 of 2
F. ANN RODRIGU~ RECORDER
RECORDED BY: Jl
DEPUTY RECORDER
1541 PE4
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
DOC~~: 11923
PAL 3536
NO. OF PAGES: 18
SEQUENCE: 20022170975
11/08/2002
MAFEPA 16:16
MAIL
AMOUNT PAID $ 14.50
DEVELOPMENT AGREEMENT
BETWEEN
THE TOWN OF MARANA
AND
NEW WEST MATERIALS
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TABLE OF CONTENTS
RECITALS
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AGREEMENT
1. Development of Property
1.1. Development in Accordance with the MDC and Zoning
1.2. Zoning Conditions
1.3 Property
2. Business License Fee
2.1. Fee Assessments
2.2. Timing and Method of Payment
2.3. Audit Provisions
2.4. Amendment and Repeal
3. Park, Trail, Recreation and Open Space Requirements
3.1. Trail Dedication
3.2. Completion of Trail Improvements
3.3. Indemnification
4. Cooperation and Alternative Dispute Resolution
4.1. Appointment of Representatives
4.2. Default: Remedies
5. Notices and Filings
6. General Terms and Conditions
6.1. Terms
6.2. Waiver
6.3. Attorneys' Fees
6.4. Counterparts
6.5. Headings and Recitals
6.6. Exhibits
6.7. Further Acts
6.8. Future Effect
6.9. No Partnership and Third Parties
6.10. Other Instruments
6.11. Imposition of Duty By Law
6.12. Entire Agreement
6.13. Amendment
6.14. Good Standing: Authority
6.15. Severability
6.16. Governing Law/Arbitration
6.17. Recordation
6.18. No Representations
6.19. Approval
6.20. Force Majeure
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DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter "Agreement") is made as of the day of
, 2002, by and between the TOWN OF MARANA, an Arizona municipal corporation (the
''Town''), and NEW WEST MATERIALS ("New West").
RECITALS
A. New West is the lessee of approximately 400 acres of real property, partially within the
corporate limits of the Town, and a portion currently in unincorporated Pima County, legally described
and depicted on EXHIBIT "A" attached hereto (the "Property").
B. New West intends to develop the Property in a phased manner to include development of new
aggregate extraction and processing facilities.
C. As part of this process, on April 12, 2002, a significant land use change on the property was
approved and adopted.
D. The future development of the Property shall be subject to (i) the Marana Development Code
(including the written rules, regulations, procedures and other policies relating to development of land,
whether adopted by the Mayor and Councilor by Town staff) (the "MDC"), (ii) the Marana Town Code
(the "Town Code") as adopted by the Town, and (iii) mutually agreed, but not limited to, binding
conditions, as shown in attached Exhibit "C".
E. The parties desire that the Property shall be developed in accordance with the MDC,
Conditions of Significant Land Use Change ("S.L.U.C.") and the Town Code, as amplified and
supplemented by this Agreement. The parties acknowledge that this Agreement is intended to be
consistent with the foregoing, and operates to the benefit of the Town, New West and the public.
F. The parties understand and acknowledge that the development of the Property is a
"Development Agreement" within the meaning of, and entered into pursuant to the terms of,
A.R.S. S 9-500.05, in order to facilitate the development of the Property.
G. The parties acknowledge that the development of the Property pursuant to this Agreement will
result in planning and economic benefits to the Town and its residents by, among other things, requiring
development of the Property consistent with the MDC, the significant land use change, and the terms
and conditions of this Agreement. _
H. Future Tangerine Road dedication, as approved by the Development Services Director, will be
completed within 180 days of approval or this Agreement is null and void.
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I. If after twenty (20) years and one day from execution of this agreement, the Town has not built
Tangerine Road, in the area dedicated, the area dedicated will revert back to the Owner.
J. If Tangerine Road is built in the area dedicated, continuous access, on both sides of Tangerine _
Road, in the form of a driveway, or other suitable form, will be built for agricultural equipment access to
farm fields.
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NOW THEREFORE, in consideration of the foregoing premises and the mutual promises and
agreements set forth herein, the parties hereto state, confirm and agree as follows:
AGREEMENT
1. Development of the Property.
1.1 Development in accordance with the MDC and Zoning. Prior to the approval and
execution of this Agreement, the Town adopted a significant land use change, along with mutually
agreed, but not limited to, binding conditions for the property as shown in attached Exhibit "C". The
Property shall be developed in accordance with these documents, which in conjunction with the MDC,
set forth the basic land uses, densities and intensities of such land uses as presently authorized for the
Property and development regulations related thereto. Upon compliance by New West with the
applicable development review and approval procedures as set forth in the MDC, and other Town
ordinances, rules, regulations and state laws, the Town agrees to approve or issue such permits, plans,
specifications, and/or plats of or for the Property as may be requested by New West and which are
consistent with the MDC and S.L.U.C.
1.2 Zoninq Conditions. New West agrees to fulfill all mutually agreed, but not limited to,
binding conditions as outlined in the S.L.U.C., and shown on attached Exhibit "C".
1.3 Property. This development agreement includes all land shown in attached Exhibit
"A", regardless of jurisdiction.
2. Business License Fee. New West shall pay a $10,000 annual business license renewal fee, or
such amount as set by Town ordinance, effective with New West's business license renewal in April of
2003.
2.1 Recurrinq Revenue Fee. New West shall pay to the Town a fee of $0.05 per ton for all
aggregates mined, processed, sold and removed from the Property, as depicted in attached Exhibit "A"
(the "Recurring Revenue Fee"). The Recurring Revenue Fee shall not apply to materials imported onto
the Property which are not available from the Property or materials such as cement, fly ash, oil or
admixtures that are included in products such as ready mix concrete or asphalt concrete.
2.2 Timinq and Method of Payment. New West shall submit a report within sixty (60) days
of the end of each calendar year detailing the tonnage of aggregate mined, processed, sold and
removed from the Property (the "Report"). The total tonnage of aggregate mined, processed, sold and
removed from the Property shall be the sum of the number of cubic yards of ready mix concrete
produced multiplied by 1.5, plus the number of tons of asphalt produced multiplied by 0.93, plus the total
tonnage of aggregates mined, processed, sold and removed from the Property as aggregates. New West '-"
may deduct the tonnage of imported aggregate that is not available from the Property from the resulting
total tonnage of aggregate. The Report shall be accompanied by a check for the Recurring Revenue Fee _
in an amount equal to the total tonnage of aggregate mined, sold and removed from the Property
multiplied by $0.05.
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2.3 Audit Provisions. The Town of Marana shall be entitled to inspect the records of New
West to verify that the tonnage reported in the Report is accurate.
2.4 Amendment and Repeal. New West's obligation to pay the Recurring Revenue Fee
to the Town shall be amended or terminated upon the following:
2.4.1 In the event that the Recurring Revenue Fee is found to be invalid, illegal or
otherwise unenforceable by final judgment of a court of law, New West's obligation to pay any and all
Recurring Revenue Fees shall terminate as of the date of such final judgment.
2.4.2. In the event that the Town has the opportunity to impose a Recurring
Revenue Fee on any other sand and gravel extraction or processing operations through the imposition of
zoning and development conditions, including but not limited to conditions imposed as part of a rezoning
or plan amendment, development plan approval or plat approval, and does not impose such Recurring
Revenue Fee, New West's obligation to pay any and all Recurring Revenue Fees shall terminate as of
the date of authorization and imposition of such conditions.
2.4.3 In the event that the Town adopts a Recurring Revenue Fee to be assessed
against any sand and gravel extraction or processing operations in an amount less that $0.05 per ton of
aggregate material extracted, New West's obligation to pay the Recurring Revenue Fee shall
automatically be reduced to the lesser amount.
2.4.4. Regardless of the amount of any Recurring Revenue Fee imposed or
adopted by the Town, New West shall in no event be required to pay the Recurring Revenue Fee in an
amount greater that $0.05 per ton of aggregate material extracted. However, the Recurring Revenue Fee
paid by New West shall be reviewed on the tenth (10) anniversary of this Agreement and every tenth (10)
anniversary thereafter for the term of this Agreement, at which time the Recurring Revenue Fee paid by
New West Shall be adjusted to be equal to the lowest Recurring Revenue Fee paid by other sand and
gravel operators (who pay such Recurring Revenue Fee).
- 2.4.5 New West agrees that it will not actively support any litigation filed in
challenge to the Recurring Revenue Fee, although this obligation shall not limit New West's right to
participate or maintain membership in any organization that may file litigation challenging the Recurring
Revenue Fee.
3. Park, Trail, Recreation and Open Space Requirements.
3.1. Trail Dedication. New West shall dedicate to the Town for public use a 50-foot wide
trail on the eastern boundary of the Property, legally described and depicted on Exhibit "B" attached
hereto (the "Trail"). The Trail dedication shall be recorded by separate instrument. The trail alignment
and improvements shall be designed and constructed by New West with the approval of the Parks and
Recreation Director.
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3.1.1. New West shall not be required to dedicate any of its Property to provide
parking for persons using the Trail.
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3.1.2. Upon completion of the Trail Improvements (as defined in this Section 3),
the Town shall accept dedication of the Trail and shall assume full responsibility and liability for the
continued maintenance, repair and improvement of the Trail and the Trail improvements.
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3.1.3. For safety purposes, public access to the Trail shall not be permitted until
the Trail Improvements are completed and the Trail has been accepted by the Town.
3.2. Completion of Trail Improvements. New West shall complete all Trail Improvements
within twelve (12) months after the Effective Date of this Agreement.
3.3. Indemnification. Upon completion of construction of the Trail Improvements by New
West and the Town's acceptance of the Trail Improvements as provided in Section 3.2, the Town shall
indemnify, defend and hold harmless New West, its successors, assigns, representatives, officers,
directors, and agents from and against all allegations, demands, proceedings, suits, actions, claims,
damages, losses, expenses, including but not limited to, reasonable attorneys' fees, costs, fees, and
liabilities and all claim adjusting and handling expenses, related to, arising from or out of or resulting from
the following:
3.3.1. The design, construction, maintenance, repair or replacement of the Trail or
the Trail Improvements, including but not limited to, work performed by any subcontractor or anyone
directly or indirectly employed by New West, its successors, assigns, representatives, officers, directors
or agents.
3.3.2. The Town shall not be required to indemnify, defend or hold harmless New
West, its successors, assigns, representatives, officers, directors or agents for any portion of the above-
described claims that a court of competent jurisdiction shall have determined resulted from the
negligence or willful misconduct of New West, its successors, assigns, representatives, officers, directors
or agents.
4. Cooperation and Alternative Dispute Resolution.
4.1. Appointment of Representatives. To further the commitment of the parties to
cooperate in the development of the Property, the parties each shall designate and appoint a
representative to act as a liaison between the Town and its various departments and New West. The
initial representative for the Town shall be the Development Services Director, and the initial
representative for New West shall be Dan McQuade or a replacement project manager to be selected by
New West. The representatives shall be available at all reasonable times to discuss and review the
performance of the parties to this Agreement and the development of the Property.
4.2. Default: Remedies. If either party hereto defaults (the "Defaulting Party") with respect
to any of such party's obligations hereunder, then the other party hereto (the "Non-Defaulting Party")
shall be entitled to give written notice in the manner prescribed in Section 5 to the Defaulting Party,
which notice shall state the nature of the default claimed and make demand that such default be
corrected. The Defaulting Party shall then have (i) twenty (20) days from the date of such notice within
which to correct such default if it can reasonably be corrected by the payment of money, or (ii) sixty (60)
days from the date of such notice to cure such default if action other than the payment of money is
reasonably required, or if any such non-monetary default cannot reasonably be cured within sixty (60)
days, then such longer period as may be reasonably required, provided and so long as such cure is
promptly commenced within such period and thereafter diligently prosecuted to completion. If any such
default is not cured within the applicable time period(s) set forth above in this section, the Non-Defaulting
Party shall be entitled to commence an action at law or in equity in the Pima County Superior Court. The
parties hereto agree that due to size, nature and scope of the Development, and due to the fact that it
may not be practical or possible to restore the Property to the condition which existed prior to New
West's development and improvement work, once implementation of this Agreement has begun, money
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damages and remedies at law will likely be inadequate and that specific performance will likely be
appropriate for the enforcement of this Agreement. This section shall not limit any other rights, remedies,
or causes of action that either party may have at law or in equity.
5. Notices and Filings.
All notices, filings, consents, approvals and other communications provided for herein or given in
connection herewith shall be validly given, filed, made, transmitted or served if in writing and delivered
personally or sent by registered or certified United States mail, postage prepaid, if to (or to such other
addresses as either party hereto may from time to time designate in writing and deliver in like manner):
The Town:
Town of Marana
Development Services Director
13251 N. Lon Adams Road
Marana, Arizona 85753
With a copy to:
Daniel J. Hochuli, Esq.
Hochuli & Benavidez, P.C.
220 East Wetmore Rd., Suite 110
Tucson, Arizona 85705
New West:
Dan McQuade
2035 W. Mountain View
Phoenix, Arizona 85021
With a copy to:
Steve Basila
2033 W. Mountain View
Phoen~,Arizona85021
6. General Terms and Conditions.
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6.1 Term. This Agreement shall become effective upon its execution by all the parties and _
the taking effect of a duly adopted resolution of the Town's governing body approving the Agreement
(the "Effective Date"). The term of the Agreement shall commence upon the Effective Date and, unless
sooner terminated by the mutual consent of the parties, shall automatically terminate and shall thereafter
be void for all purposes ten (10) years and three (3) five (5) year options, if exercised, from the date of
this Agreement. If the parties determine that a longer period is necessary for any reason, the term of this
Agreement may be extended by written acknowledgement executed by the parties.
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6.2 Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof,
and no waiver by the Town or New West of the breach of any covenant or condition of this Agreement
shall be construed as waiver of any preceding or succeeding breach of the same or any other covenant
or condition of this Agreement.
6.3 Attorney's Fees. In the event any party hereto finds it necessary to bring an action at
law or other proceeding against any other party to enforce any of the terms, covenants or conditions
hereof, or by reason of any breach of default hereunder, the party prevailing in any such action or other
proceeding shall be paid all reasonable costs and reasonable attorneys' fees by the other party, and in
the event any judgment is secured by said prevailing party, all such costs and attorneys' fees shall be
included therein, such fees to be set by the court and not by jury.
6.4. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The signature pages from one or more counterparts may be removed from such counterparts
and such signature pages all attached to a single instrument so that the signatures of all parties may be
physically attached to a single document.
6.5. HeadinQs and Recitals. The descriptive headings of the sections of this Agreement
are inserted for convenience only and shall not control or affect the meaning or construction of any of the
provisions hereof. The Recitals set forth at the beginning of this Agreement are herby acknowledged and
incorporated herein and the parties hereby confirm the accuracy thereof.
6.6. Exhibits. Any exhibit attached hereto shall be deemed to have been incorporated
herein by this reference with the same force and effect as if fully set forth in the body hereof.
6.7. Further Acts. Each of the parties hereto shall execute and deliver all such
documents and perform all such acts as reasonably necessary, from time to time, to carry out the
matters contemplated by this Agreement. Without limiting the generality of the foregoing, the Town shall
cooperate in good faith and process promptly any requests and applications for plat or permit approvals
or revisions, and other necessary approvals relating to the development of the property by New West
Materials and its successors.
6.8. Future Effect. This Agreement shall run with the land. All of the provisions hereof
shall inure to the benefit of and be binding upon the successors, assigns and legal representatives of the
parties hereto. To the extent permitted by law, New West's rights hereunder may be assigned by a
written instrument, recorded in the Official Records of Pima County, Arizona, expressly assigning such
rights. The obligations of New West hereunder shall be binding upon anyone owning any right, title or
interest in the Property as long as such obligation has been specifically assumed in writing or as
otherwise required by law. The Town understands that New West may create one or more entities or i
subsidiaries wholly owned or controlled by New West for purposes of carrying out the development of the ~
Property as contemplated in this Agreement. In the event of a complete assignment by New West of all
rights and obligations of New West hereunder, New West's liability hereunder shall terminate effective
upon the assumption of New West's assignee.
6.9. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing 3
contained in this Agreement shall create, any partnership, joint venture or other arrangement between
New West Materials and the Town. No term or provision of this Agreement is intended to, or shall, be for
the benefit of any person, firm, organization or corporation not a party hereto, and no such other person,
firm, organization or corporation shall have any right or cause of action hereunder.
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6.10. Other Instruments. Each party hereto shall, promptly upon the request of the other,
have acknowledged and delivered to the other any and all further instruments and assurances
reasonably requested or appropriate to evidence or give effect to the provisions of this Agreement.
6.11. Imposition of Duty By Law. This Agreement does not relieve any party hereto of any
obligation or responsibility imposed upon it by law.
6.12. Entire Aqreement. This Agreement constitutes the entire agreement between the
parties hereto pertaining to the subject matter hereof. All prior and contemporaneous agreements,
representations and understanding of the parties, oral or written, are hereby superseded and merged
herein.
6.13. Amendment. The parties agree to cooperate and in good faith pursue any
amendments to this Agreement that are reasonably necessary to accomplish the goals expressed in the
MDC, the Significant Land Use Change and mutually agreed, but not limited to, binding conditions as
shown in Exhibit "C", and to facilitate the development of the Property in light of any changes in
development requirements, including an extension of the terms of this Agreement as provided in Section
6.1. If New West determines that it would be beneficial to amend this Agreement to include adjacent
lands owned by New West, the Town agrees to consider in good faith such amendment. All amendments
to this Agreement shall be in writing and, if approved, must be signed by all appropriate parties. Within
ten (10) days after any amendment to this Agreement, such amendment shall be recorded by, and at the
expense of, the party requesting the amendment, in the Official Records of Pima County, Arizona.
6.14. Good Standinq: Authority. New West represents and warrants to the Town that it is
duly formed and validly existing under the laws of Arizona and is authorized to do business in the state of
Arizona. The Town represents and warrants to New West that it is an Arizona municipal corporation duly
qualified to do business in the State of Arizona and is in good standing under applicable state laws. Each
of the parties hereto represents and warrants to the other that the individual(s) executing this Agreement
on behalf of the respective parties are authorized and empowered to bind the party on whose behalf
each such individual is signing.
6.15. Severability. If any provision of this Agreement is declared void or unenforceable,
such provision shall be severed from this Agreement, which shall otherwise remain in full force and
effect. If any applicable law or court of competent jurisdiction prohibits or excuses the Town from
undertaking any contractual commitment to perform and act hereunder, this Agreement shall remain in
full force and effect, but the provision requiring such action shall be deemed to permit the Town to take
such action at its discretion. If, however, the Town fails to take action specified hereunder, New West
shall be entitled to terminate this Agreement.
6.16. Governinq Law/Arbitration. This Agreement is entered into in Arizona and shall be
construed and interpreted under the laws of Arizona, and the parties agree that any litigation or
arbitration shall take place in Pima County, Arizona. In particular, this Agreement is subject to the
provisions of A.R.S. S 38-511. This Agreement has been negotiated by separate legal counsel for the
Town and New West, and no party shall be deemed to have drafted this Agreement for purposes of
construing any portion of this Agreement for or against any party. Any dispute, controversy, claim or
cause of action rising out of or relating to this Agreement shall be settled by submission of the matter by
both parties to binding arbitration in accordance with the rules of the American Arbitration Association
and the Arizona Uniform Arbitration Act, A.R.S. S 12-501 et seq., and judgment upon the award rendered
by the arbitrator(s) may be entered in a court having jurisdiction thereof.
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6.17. Recordation. No later than ten (10) days after this Agreement has been executed by
the Town and New West, it shall be recorded in its entirety by the Town in the Official Records of Pima
County, Arizona. Cost of said recordation shall be paid by New West.
6.18. No Representations. Except as specifically set forth herein, nothing contained
herein shall be deemed to obligate the parties to complete any part or all of the development of the
Property.
6.19. Approval. If any party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
6.20. Force Maieure. If any party hereto shall be unable to observe or perform any
covenant or condition herein by reason of "force majeure," then the failure to observe or perform such
covenant or condition shall not constitute a default hereunder so long as such party shall use its best
effort to remedy with all reasonable dispatch the event or condition causing such inability and such event
or condition can be cured within a reasonable amount of time. "Force majeure," as used here, means any
condition or event not reasonably within the control of such party, including without limitation, "acts of
God"; strikes, lock-outs, or other disturbances of employer/employee relations; acts of public enemies;
orders or restraints of any kind of the government of the United States or any state thereof or any of their
departments, agencies, or officials, or of any civil or military authority; insurrection; civil disturbances;
riots; epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests; restraints of government and of people; explosions; and partial or entire failure of utilities.
Failure to settle strikes, lock-outs and other disturbances of employer/employee relations or to settle
legal or administrative proceedings by acceding to the demands of the opposing party or parties, in any
case when such course is in the judgment of the party hereto unfavorable to such party, shall not
constitute failure to use its best efforts to remedy such condition.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
TOWN OF MARANA
an Arizona municipal corporation
NEW WEST MATERIALS
By
By:
ATTEST:
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Title: 1/ / ej)p-eec~<. Or~41M;f0~
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STATE OF
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County of~fY\~
The foregoing document was sworn to and acknowledged before me the J $ 11-, day
of OC1l) [JeJ2., ,2002, by Dan McQuade, the JHf'~t:r\)(L or:- () f'eft.f-rrior(!" of New West Materials.
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Notary ~liC
res~~ ."~. .~-~-,~"._._,. - ,."''',~:
... . ~)F;:ICiAL. SEAL r
'\ KJM S. JOHANSEN (
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APPROVED AS TO FORM AND AUTHORITY
The foregoing Agreement has been reviewed by the undersigned attorney Wh0 has determined that it is
in proper form and within the power and authority granted under the laws of the State of Arizona to the
Town of Marana. '0
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Daniel J. Hochur, Esq.
Attorney for Town of Marana
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EXHIBIT "B"
TRAIL EASEMENT
:\SSESSOR'S RECORD MAP
SECTION 07, TOWNS~JJ:orlG.....SOUTH I
RANGE 12 EAST
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FEET
2
THE EASTERN 50' OF TAX PARCEL 216-15-005a,
A PORTION OF THE NW 1/4 OF SECTION 7, T 12 S, R 12 E ;
(AS DEPICTED). ACTUAL DEDICATION WILL BE DONE BY
SEPARATE INSTRUMENT AND LEGAL DESCRIPTION.
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E.g,jS] 50' TRAIL EASEMENT
EXHIBIT "C"
Mutuallv Aqreed Bindinq Conditions
1. This Significant Land Use Change shall be valid for one (1) year from the date of Town approval,
provided that if the owner fails to gain approval of a mining plan prior to the 1-year sunset date, the
Significant Land Use Change will be void. If the operation is in non-compliance with any of the
prescribed agreed upon conditions or necessary mitigation measures for more than six (6) months, the
Significant Land Use Change will be void, upon finding of the Town Manager.
2. The owner/applicant shall cause, to the Development Services Administrator's satisfaction, the
necessary roadway dedications and improvements and channel and drainage improvement measures,
as deemed necessary by the Town's Development Services Administrator and Town Engineer to
support the proposed development of the site or the Town's Master Transportation Plan, including but
not limited to Avra Valley Road and the southerly alignment of Tangerine Road.
3. An assurance agreement shall be entered into by the owner/applicant prior to commencement of
aggregate extraction and processing within Assessor's Parcel Number 21512004E, establishing a
financial instrument of assurance to guarantee mitigation and reclamation of the mineral extraction
operation. Said assurance shall be evaluated annually and adjusted depending on the cumulative level
of disturbance. It is understood that the Town is in the process of developing and adopting a Surface
Mining and Reclamation ordinance substantially in the form of the attached draft dated January 29,
2002. The agreement required herein shall be substantially in the form required by the draft ordinance
and this condition shall be amended and superceded by the Surface Mining and Reclamation
Ordinance upon the Town's adoption of the Surface Mining and Reclamation Ordinance
4. The maintenance of facilities shall be performed in a clean and safe manner including but not limited to
the proper removal of derelict facilities, equipment, and/or storage devices.
5. The owner/applicant shall annually submit a report to the Development Services Administrator detailing
the current and proposed location of processing and extraction, changes in buffering or operational
systems and/or schedules and any other factors which have or may cause material changes in the
impacts associated with the surface mining activity. The report shall include a section on the potential
for infiltration of flood flows and groundwater. The report shall also include a topographical survey in a
form acceptable to the Development Services Administrator or equivalent town authority.
6. A lighting plan, in compliance with the Town's adopted Lighting Code, shall be submitted prior to
excavation, not including removal of overburden, providing a location and schedule of lighting facilities
and shall be updated annually. All permanent lighting measures at the new site shall not exceed the
height of the proposed screening berm. Additionally, the program will mitigate trespass of light to
surrounding areas and provide for the modernizing of lighting equipment in conjunction with the
required annual lighting reviews. Directional (non flood) lighting required for operational and safety
purposes is allowed on silos and above the height limits stated herein, provided such lighting is used
only as required, is minimized and is fully screened from adjacent properties and or rights-of-way.
However, any such lighting remains subject to all light trespass restrictions. This is not intended to limit
lighting necessary for equipment maintenance, provided the lighting is used only during active
maintenance activities and does not trespass into surrounding areas.
3
7. The reclaiming of any pit for the purposes of sanitary refill shall be prohibited.
8. ~Site preparation as it relates to all water and drainage issues, such as effluent and potable service,
shall be subject to and cooperative with the Development Services Administrator and Marana Water
Department.
9. The owner/applicant shall submit landscape plans which shall include cross-sections of the proposed
buffering and landscaping along all property boundaries. Such plans shall be reviewed and approved
by the Planning Director. All graded areas in plain sight of adjacent properties such as, but not limited
to, setbacks, buffers, and/or appropriate drainage ways that have not been included in the re-vegetation
schedule for screening shall be hydro-seeded or treated with a soil-stabilizing agent. Furthermore,
areas adjacent to rights-of-way (Avra Valley and Tangerine Roads), shall be landscaped with trees that
grow to a minimum height of twenty-five (25) feet, and shall be twenty-four (24) inch box trees located
in the berm, and shall be planted a minimum of twenty (20) feet on center or as approved by the
Planning Director. All buffer areas outside of mining shall be hydro-seeded and provided with one tree
and three shrubs per thousand (1000) sq. ft. of area, of which a minimum thirty (30) percent shall be
twenty-four (24) inch box trees. Additionally, all berming areas shall be landscaped per the Town of
Marana buffer yard standards, the conditions herewith, with the location of landscaping being
determined through an approved landscape plan. All landscaped areas shall be continuously
maintained per section 17-3.10 of the Land Development Code.
10. The aggregate extraction operation shall comply with the most current and reasonably applicable
environmental and safety standards, as identified in Federal, State, and Local laws, and shall be
required to be updated on an annual basis.
11. The sand and gravel operation shall insure that all trucks are properly loaded and that tires and wheels
have been sprayed or washed for dust abatement or alternatives as approved by the Development
Services Administrator or town equivalent. The operation shall support the adoption of a Town-wide
Tarping Ordinance, in a form substantially similar to that attached draft dated January 29, 2002, and
shall comply with said ordinance as and when it is adopted and in full force and effect. The sand and
gravel operation shall make best efforts in the period prior to adoption of that ordinance to secure loads
departing the facility.
12. The access road and route for loaded trucks exiting the site shall be designed and paved, as accepted
by the Development Services Administrator.
13. All structures, modulars, and stockpiles within one hundred and fifty (150) feet of the centerline of the
berm shall not exceed the height of the proposed screening berm. Beyond which no structure shall
exceed thirty (30) feet above the existing pre-development grade. A maximum of five (5) permanent
silos, having heights not exceeding fifty-five (55) feet above the existing pre-development grade will
also be permitted, provided they are setback a minimum of three hundred (300) feet from any property
line. Up to five (5) additional temporary silos will be permitted as long as the duration of their use does
not exceed twelve (12) months. This provision does not restrict the building of a site office at grade
which will conform to the zoning code provisions. If additional silos are desired, they may be approved
through the provisions of the Conditional Use Permit process of the Land Development Code.
14. All proposed buffering and landscaping techniques, including densities, their implementation means,
consideration of security and safety, and the monitoring thereof, shall be delineated in a "Landscape
Plan" subject to the review and approval by the Town of Marana.
15. On site sand and gravel processing, including crushing and washing, shall process only those materials
extracted from within the Town of Marana, except for those materials incidental to the production of
. ready mix concrete and asphalt which are not available from the on site pit. Furthermore, the site may
process recycled aggregate type materials (i.e. no tires, aluminum, steel, etc. materials).
16. The Significant Land Use Change application shall stipulate the following provisions: 1) Permitted Uses
shall be limited solely to 'Aggregate Extraction' 2) All accessory uses shall be contingent on the
extraction of aggregate, so that sand and gravel processing, ready-mix concrete, asphalt processing,
and the storage of materials or stockpiling shall only be permitted as an accessory use so long as the
operation of extracting aggregate is not discontinued 3) If for any reason extraction of aggregate at the
new site ceases operation for six (6) consecutive months the zoning shall revert upon a finding by the
Town Council that non-compliance exists. This condition shall be amended and superceded by the
Surface Mining and Reclamation Ordinance upon the Town's adoption of the Surface Mining and
Reclamation Ordinance. 4) After the cessation of aggregate extraction, batching operations may
remain, subject to a revised Development Plan.
17. A drainage statement shall be approved by the Town Engineer before any activity related to site
preparation or mining operation commences.
18. The operator shall design and construct all required multi-use trails, which shall be approved by the
Town prior to installation. Connectivity of multi-use trails, and the phasing thereof, shall be conducted in
conjunction with an approved phasing plan.
19. The Mining/Development Plan shall be submitted for approval prior to any aggregate extraction. The
Mining/Development Plan shall be considered by the Planning and Zoning Commission and Town
Council. The Mining/Development Plan shall detail various drainage, site preparation, scheduling of
activities and their locations, lighting plan, phasing plan, operation plan, major equipment locations,
view shed impact and preservation, and any other element or concern deemed appropriate by the
Town.
20. These conditions bind any and all successors and assigns.
21. Prior to the commencement of aggregate extraction and processing within Assessor's Parcel Number
21512004E, a Development Agreement shall be entered into between the Owner/Applicant and the
Town for the purpose of establishing a mutually acceptable business license renewal fee of $10,000, or
such as established by town-wide ordinance, for the purposes of enforcement and monitoring of on-site
activity support.
22. Prior to the commencement of aggregate extraction and processing within the significant land use
change area, a Development Agreement shall be entered into between the Owner/Applicant and the e
Town for the purpose of establishing a mutually acceptable recurring revenue source to be generated
from the owner's/applicant's operations and payable to the Town at a rate of 5 cents per ton of material
extracted and sold, and for the project's parks, trails, and recreation improvement requirements.
i
23. The applicant shall cause the owner to file a petition for annexation into the Town of Marana for the
eastern-140 acres (APN 21614005A) and bind that this property shall be subject to the same
conditions, standards, covenants and warranties that the property to the west, within the Town of
Marana, is subject to. If unable to cause said annexation the applicant shall bind the eastern - 140
acres (APN 21614005A) to the same conditions, standards, covenants and warranties that the property
to the west, within the Town of Marana, is subject to.
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