HomeMy WebLinkAboutResolution 2000-114 adopting habitat preservation agreement with cottonwood F. ANN RODRIGUEZ, RECORDER
RECORDED BY: DSC
DEPUTY RECORDER
1212 ROOE
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
DOCKET: 11411
PAGE: 273
NO. OF PAGES: 12
SEQUENCE: 20002070079
10/25/2000
RES 09:58
MAIL
AMOUNT PAID $ 11.50
MARANA RESOLUTION NO. 2000-114
A RESOLUTION Of THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA,
ARIZONA, DECLARING AND ADOPTING A HABITAT PRESERVATION AGREEMENT
BETWEEN THE TOWN OF MARANA, COTTONWOOD PROPERTIES INC., REDHAWK
MARANA LLC, RITA LAND CORPORATION AND THE UNITED STATES FISH AND
WILDLIFE SERVICE CUSEWS").
WHEREAS, pursuant to Section 7(a)(2) of the Endangered Species Act CESA") USFWS
is processing a Biological Opinion concerning potential impacts to the Cactus Ferruginous Pygmy-
Owl ("Pygmy-Owl") in connection with the development of the Dove Mountain Area; and
WHEREAS, the Biological Opinion will call for significant conservation measures
including the creation of the Tortolita Preserve; and
WHEREAS, USFWS will require assurances to a continuing commitment to manage the
Tortolita Preserve in a manner that minimizes the possible impacts upon Pygmy-Owl Habitat; and
WHEREAS, the Town of Marana desires to facilitate certain development activity in the
Dove Mountain Area; and
WHEREAS, the proposed development activity within the Dove Moun~in area will result
in significant planning and economic benefits which are in the best interest of the Town.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, as follows:
Section h That the Habitat Preservation Agreement, attached as Exhibit "A," and
incorporated herein by reference, between the Town of Marana,Cottonwood Properties Inc.,
Redhawk Marana LLC, Rita Land Corporation and USFWS be adopted, and staff/and or the
Mayor be directed to undertake any activity necessary to complete this Agreement.
Section 2: All ordinances, resolutions, or motions and parts of ordinances, resolutions,
or motions of the Council in conflict with the provisions of this Resolution are hereby repealed,
effective as of the effective date of this Resolution.
Marana Resolution No. 2000-114
Page 1 of 2
Section 3: If any section, subsection, sentence, clause, phrase or portion of this
Resolution is for any reason held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
24~ day of October, 2000.
ATTEST:
APPROVED AS TO FORM:
~lliel J. I{och~li, as
Town Atton~qdand
not personally
~ON, JR.
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Maral~a, Arizona Resolution No. 2000-114 Page 2 of 2
EXHIBIT A
HABITAT PRESERVATION AGREEMENT
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HABITAT PRESERVATION AGREEMENT
(Tortolita Preserve)
This Habitat Preservation Agreement (AAgreement~) dated as of
,2000 by and among RedHawk Marana, LLC, Rita Land Corporation
and Cottonwood Properties, Inc., (collectively kApplicant~), The Town of Marana
(g_Town~), and the United States Fish and Wildlife Service (.kUSFWS@).
WITNESSETH:
· WHEREAS, pursuant to Section 7(a)(2) of the Endangered Species Act (the
AESA~), USFWS has issued to the Environmental Protection Agency (the AEPA@) and the
U.S. Army Corps of Engineers (g_Corps@) a Biological Opinion dated
., 2000 (the g. Biological Opinion~) concerning potential impacts
to the cactus ferrnginous pygmy owl (g_Pygmy Owl@) and its designated critical habitat
(collectively g_Project Impacts@) in connection with Applicant=s development of certain
property in Pima County, Arizona, locally known as a portion of Dove Mountain as such
term is defined in the Biological Opinion; and
WHEREAS, the Town desires to facilitate certain development activity within Dove
Mountain because this activity will result in significant planning and economic benefits to
the Town from increased sales tax revenue, from creating jobs through new businesses to be
located in Dove Mountain and otherwise; and
WHEREAS, the Biological Opinion calls for significant conservation measures
including the Town executing a 99 year lease for 2,397 acres of open space and park
purposes with the Arizona State Land Department (APreservation Lease@) for certain land
adjacent to Dove Mountain (Tortolita Preserve), as shown in Exhibit A; and
WHEREAS, the Town has made application to the Arizona State Land Department
for the Preservation Lease and desires to assume responsibility for management of the
Tortolita Preserve; and
WHEREAS, USFWS desires assurances that there is a continuing commitment to
manage the Tortolita Preserve in a manner that minimizes and mitigates Project Impacts, if
and when the Preservation Lease is approved by the Arizona State Land Department.
NOW, THEREFORE, the parties hereby covenant and agree as follows:
1. Preservation Lease. Commencing upon notice from the Applicant to the
Town that the Applicant has accepted the terms of the Biological Opinion, the Town will use
reasonable and best efforts to obtain the Preservation Lease. The Town is obligated to
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maintain the Preservation Lease with the State of Arizona in good standing. The only basis
for termination of the Lease prior to expiration of the ninety nine year term is provided in
paragraph 8 of this Agreement.
2. Tortolita Preserve. Commencing upon issuance of the Preservation Lease,
the Town shall promptly and continuously maintain and manage the Tortolita Preserve
throughout the term of the lease by taking the measures described below and more
specifically described in the Property Analysis Record, dated May 1, 2000, attached as
Exhibit B:
The Tortolita Preserve will be maintained in a natural condition,
except as expressly set forth herein.
The USFWS may require the Town to fence the perimeter of the
2397-acre Tortolita Preserve, in whole or in part, should USFWS
determine that adjacent land uses are adversely affecting the
biological values of the Tortolita Preserve lands. Such fencing will
be constructed in accordance with Arizona Game and Fish
Department's designs for wildlife friendly fencing.
Perimeter signs will be posted and the Tortolita Preserve will be
monitored to discourage unauthorized entry.
The Tortolita Preserve will be surveyed by a plant ecologist at least
once every 3 years and at least once each year an ornithologist will
conduct a large area search (i.e. research) surveys for Pygmy Owls in
accordance with the Arizona Game & Fish Department & USFWS
2000 protocol.
Native plants will be salvaged and replanted from any authorized
disturbances (as described below) that occur within the Tortolita
Preserve.
f. Invasions of exotic species will be controlled.
No development or other activities will be permitted in the Tortolita
Preserve except (i) for trails that are consistent with the Town of
Marana Trail System, (ii) use of trails for hiking, non motorized
biking, and horse back riding, (iii) for construction of offsite utilities
as described in the BA, and (iv) as otherwise permitted by USFWS.
The following activities are prohibited in the Tortolita Preserve: (i)
use of firearms, (ii) jeep tours and other offroad vehicle uses, (iii) use
of pesticides or herbicides for purposes other than controlling
invasion of exotic species, (iv) racing events or other media
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publicized events that attract large crowds, (v) use of bright outdoor
lights, and (vi) construction or vehicular use of roads.
Gates along existing or proposed easements in the Tortolita Preserve
will be checked periodically and maintained as necessary.
The Town is obligated to comply with its other covenants and agreements hereunder. These
obligations shall constitute covenants burdening and running with the Tortolita Preserve and
shall be binding upon any and all subsequent leasors or managers thereof.
3. Access to Tortolita Preserve. The Town agrees to provide access to the
Tortolita Preserve to USFWS, their respective representatives, from time to time upon
reasonable prior notice, for the purpose of evaluating ongoing compliance with this
Agreement. If at any time USFWS determines that the Town has not properly performed
under this Agreement, USFWS will provide written notice of such failure to perform to the
Town. The written notice shall identify the specific nature of such failure and outline such
action as may be necessary to correct such failure. The Town shall have a reasonable
opportunity, which shall in no event be less than forty-five (45) days, within which to
develop and commence a reasonable plan for the corrective action. If unforeseen
circumstances exist that prevent the Town from accomplishing those actions recommended
by USFWS, USFWS will diligently consult with the Town as to alternative actions to correct
the deficiencies identified by USFWS. The Town shall also provide unimpeded access to
any entity contracted to carry out the obligations under this agreement to manage and
maintain the Tortolita Preserve.
4. Remedies and Enfomement. In the event that the Preservation Lease between
the Town and the State of Arizona is terminated or relinquished by the Town, USFWS shall
be entitled to injunctive relief which would either require the Town to (1) use its best efforts
to immediately reinstate the Lease or (2) if reinstatement is not possible, to obtain a new
lease of the Tortolita Preserve property within a reasonable period of time. If reinstatement
or issuance ora new lease on the Tortolita Preserve from the State of Arizuna is impossible
for the Town to obtain within 12 months, then the parties agree that the Town shall lease or
purchase other pygmy owl habitat of sufficient size and quality to replace the Tortolita
Preserve. The Town may satisfy this requirement by providing funding to an environmental
land management entity (such as the Nature Conservancy) for pumhase or lease of suitable
replacement habitat. The term of any lease of replacement habitat shall not be less than that
required to complete the remaining term lef~ on the original 99 year lease. The choice of the
environmental land management entity and the replacement habitat shall be subject to the
approval of the USFWS.
5. Assimunent. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns; provided, however, that, in no
event shall the Town be released or discharged of its obligations hereunder without the prior
written consent of USFWS. Any assignment is subject to the terms of this Agreement.
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Notice of this agreement shall be provided to any successor of the Town and to any successor
developer to whom Applicant assigns its rights as Master Developer under the Dove
Mountain Specific Plan.
6. Notices. Notices under this Agreement may be given by personal delivery, facsimile,
or by U.S. mail, return receipt requested, to the parties at their respective addresses set out
below, with notice being deemed effective on the date so delivered;
If to Applicant:
Cottonwood Properties, Inc.
William Hallinan
3567 E. Sunrise Dr., Ste. 219
Tucson, AZ 85718
· copy to:
W. James Harrison, Esq.
W.J. Harrison & Associates
3561 E. Sunrise Dr., Ste. 201
Tucson, AZ 85718
If to Town:
Mike Hein, Town Manager
Town of Marana
13291 North Lon Adams
Marana, AZ 85653
If to USFWS: United States Fish & Wildlife Service
Attn: Dave Harlow
2321 W. Royal Palm Rd., Ste. 103
Phoenix, AZ 85021
7. Entire A~eement. This Agreement with its attached exhibits, establishes the
entire agreement for habitat maintenance and management between the Town and USFWS
and supersedes all prior xwitten or oral understandings and communications regarding same.
8. Termination. In the event that the authorization of the Project Impacts
pursuant to the Biolo~cal Opinion (or the Corps Individual Permit) is terminated or
determined to be invalid by a final non-appealable order of a court of competent jurisdiction,
then the Town and the Applicant can terminate this Agreement by giving joint written notice
to USFWS, provided that any habitat disturbance, described as Project Impacts, that has
occurred on the portion of the Dove Mountain project addressed in the Biological Opinion
complies with the 24% maximum disturbance ratio requirements set forth in the Biological
Opinion.
9. Amendment. This Agreement may be amended only by an instrument in
writing signed by the parties hereto. Upon tenuination of this Agreement for whatever
reason all parties hereto agree to execute and record a written memorandum of such
termination upon request.
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10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws and regulations of the United States and the State of Arizona.
I 1. Authority. Each party represents to the other that it has the full power and
authority to enter into and perform the obligations under this Agreement.
12. Recording. A Memorandum of this Agreement shall be filed in the real
property records of Pima County, Arizona.
EXECUTED in multiple counterpart originals as of the date first set forth above.
TOWN OF MARANA
By:
Name:
Title:
REDHAWK MARANA, L.L.C., an Arizona limited
liability company
By:
DMBG Investments, Inc., an Arizona
corporation, its manager
By:
Name:
Title:
RITA LAND CORPORATION
By:
Nall'le~
Title:
COTTONWOOD PROPERTIES, INC.
By:
maiTle~
Title:
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UNITED STATES FISH & WILDLIFE SERVICE
By:
Name:
Title:
THE STATE OF ARIZONA '
COUNTY OF PIMA '
This instrument was acknowledged before me on the day of
,2000 by
of the Town of Marana.
(SEAL)
Notary Public in and for
the State of
(Printed Name of Notary)
My commission expires:
THE STATE OF ARIZONA '
COUNTY OF PIMA '
This instrument was acknowledged before me on the day of
,2000 by .,
of DMBG Investments, Inc., an Arizona corporation, on behalf of said corporation as
manager ofRedHawk Marana, LLC.
(SEAL)
Notary Public in and for
the State of
(Printed Name of Notary)
My commission expires:
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THE STATE OF ARIZONA '
COUNTY OF PIMA '
This instrument was acknowledged before me on the
,2000 by
of Rita Land Corporation, an Arizona corporation, on behalf of said corporation.
day of
(SEAL)
Notary Public in and for
the State of
THE STATE OF ARIZONA '
COUNTY OF PIMA '
(Printed Name of Notary)
My commission expires:
This instrument was acla~owledged before me on the day of
_, 2000 by _,
of Cottonwood Properties, Inc., an Arizona corporation, on behalf of said corporation.
(SEAL)
Notary Public in and for
the State of
(Printed Name of Notary)
My commission expires:
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THE STATE OF ARIZONA '
COUNTY OF '
This instrument was acknowledged
., 2000 by
of the United States Fish and Wildlife Service.
(SEAL)
before me on the
Notary Public in and for
the State of
day of
(Printed Name of Notary)
My commission expires:
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Moor Rosd
a Ro!d
Approximate Scale 1 · = 3 Miles
WestLand Resources Inc,
LOCATION MAP FOR
TORTOLITA PRESERVE
2399-ACRES
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EXHIBIT