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MARANA TOWN COUNCIL
REGULAR COUNCIL MEETING
NOTICE AND AGENDA
11555 W. Civic Center Drive, Marana, Arizona 85653
Council Chambers, November 3, 2010, at or after 7:00 PM
Ed Honea, Mayor
Herb Kai, Vice Mayor
Russell Clanagan, Council Member
Patti Comerford, Council Member
Carol McGorray, Council Member
Jon Post, Council Member
Roxanne Ziegler, Council Member
ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA.
Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in
italics.
As a courtesy to others please turn off or put in silent mode all pagers and cell phones.
Meeting Times
Welcome to this Marana Council meeting. Regular Council meetings are usually held the first and
third Tuesday of each month at 7:00 p.m. at the Marana Town HaII, although the date or time may
change, or Special Meetings may be called at other times and/or places. Contact Town Hall or watch
for posted agendas for other meetings. This agenda may be revised up to 24 hours prior to the meeting.
In such a case a new agenda will be posted in place of this agenda.
leaking at Meetings
If you are interested in speaking to the Council during Call to the Public, Public Hearings, or other
agenda items, you must fill out a speaker card (located in the lobby outside the Council Chambers) and
deliver it to the Town Clerk prior to the convening of the meeting.
All persons attending the Council meeting, whether speaking to the Council or not, are expected to
observe the Council Rules, as well as the rules of politeness, propriety, decorum and good conduct.
Any person interfering with the meeting in any way, or acting rudely or loudly will be removed from
the meeting and will not be allowed to return.
Accessibility
To better serve the citizens of Marana and others attending .our meetings, the Council Chambers are
wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of
special services as a result of their disability, such as assistive listening devices, agenda materials
Regular Counal Meeting -November 3, 2010 -Page 1 of 138
printed in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such
special services are available upon prior request to the Town Clerk at least 10 working days prior to
the Council meeting.
Agendas
Copies of the agenda are available the day of the meeting in the lobby outside the Council Chambers
or online at www marana.com, by linking to the Town Clerk page under Agendas, Minutes and
Ordinances. For questions about the Council meetings, special services or procedures, please contact
the Town Clerk, at 382-1999, Monday through Friday from 8:00 a.m. to 5:00 p.m.
Posted no later than Tuesday, November 02, 2010, 7:00 PM, at the Marana Municipal Complex, the
Marana Operations Center and at www.marana.com under Town Clerk, Agendas, Minutes and
Ordinances.
REGULAR COUNCIL MEETING
CALL TO ORDER AND ROLL CALL
PLEDGE OF ALLEGIANCE/INVOCATION/MOMENT OF SILENCE
APPROVAL OF AGENDA
CALL TO THE PUBLIC
At this time any member of the public is allowed to address the Town Council on any issue not
already on tonight's agenda. The speaker may have up to three minutes to speak. Any persons
wishing to address the Council must complete a speaker card located outside the Council
Chambers and deliver it to the Town Clerk prior to the commencement of the meeting. No
electronic capability will be provided by the town beyond existing voice amplication and
recording (for DVD, CD Rom, USB drives, etc.) Pursuant to the Arizona Open Meeting Law, at
the conclusion of Call to the Public, individual members of the council may respond to criticism
made by those who have addressed the Council, may ask staff to review the matter, or may ask
that the matter be placed on a future agenda.
PROCLAMATIONS
MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS
MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS
PRESENTATIONS
CONSENT AGENDA
The Consent Agenda contains items requiring action by the Council which are generally routine
items not requiring Council discussion. A single motion will approve all items on the Consent
agenda, including any resolutions or ordinances. A Council Member may remove any issue from
the Consent agenda, and that issue will be discussed and voted upon separately, immediately
following the Consent agenda.
Regular Council Meeting -November 3, 2010 -Page 2 of 138
C 1: Resolution No._2010-104__Relating to Community Development; approving
and authorizing full execution of an intergovernmental agreement with Pima County
for the management and implementation of the 2010-2011 Community Development
Block Grant program (T VanHook)
C 2: Minutes of the October 12, 2010 special council meeting, October 19, 2010
joint study session and October 19, 2010 regular council meeting
LIQUOR LICENSES
L 1: Relating to Liquor Licenses; recommendation to the State Liquor Board
regarding an Acquisition of Control change submitted William Ward Mack on behalf
of Dove Mountain Grill, located at 12130 N. Dove Mountain Boulevard #194
BOARDS, COMMISSIONS AND COMMITTEES
COUNCIL ACTION
A l: PUBLIC HEARING: Ordinance No. 2010.11: Relating to Development;
approving a rezoning creating the Marana Regional Landfill Specific Plan and
approving a minor amendment to the General Plan (Kevin Kish)
A 2: PUBLIC HEARING: Ordinance No. 2010.19: Relating to Development;
approving and authorizing the Mayor to execute the Marana Regional Landfill
Development Agreement (Frank Cassidy )
ITEMS FOR DISCUSSION/POSSIBLE ACTION
D 1: Legislative/Intergovernmental Report: regarding all pending state and federal
legislation and report on recent meetings of other legislative bodies (Gilbert
Davidson)
EXECUTIVE SESSIONS
E 1: Executive Session pursuant to A.R.S. §38-431.03 (A)(3), Council may ask for discussion or
consultation for legal advice with the Town Attorney concerning any matter listed on this
agenda.
E 2: Executive Session pursuant to A.R.S. § 38-431.03(A)(3),(4) and (7), discussion
or consultation for legal advice with the Town's attorneys and discussion and to
consider its position and instruct the Town Manager and staff concerning (1) the
lawsuit entitled Town of Marana v. Pima CountylPima County v. Marana
(consolidated), Maricopa County Superior Court No. CV2008-001131, (2) pending
legal issues, settlement discussions and contract negotiations relating to the transition
of Marana wastewater collection and treatment to the Town of Marana
FUTURE AGENDA ITEMS
Notwithstanding the mayor's discretion of what items to place on the agenda, if three or more
council members request an item to be placed on the agenda, it must be placed upon the agenda
for the second regular town council meeting after the date of the request (Marana Town Code,
Title 2, Chapter 2-4, Section 2-4-2 B)
ADJOURNMENT
Regular Council Meeting -November 3, 2010 -Page 3 of 138
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11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
Council Chambers, November 3, 2010, 7:00:00 P1VI
To: Mayor and Council Item C 1
From: T VanHook ,Community Development Director
Strategic Plan Focus Area:
Community Building
Strategic Plan Focus Area -Additional Information:
The supply of safe, affordable housing is a basic need in our community. The Town's CDBG
funded Owner Occupied Housing Rehabilitation advances action strategies under the Community
Building focus area by offering alternative funding for the rehabilitation of infrastructure in older
neighborhoods and Colonias.
Subject: Resolution No. 2010-104: Relating to Community Development; approving and
authorizing full execution of an intergovernmental agreement with Pima County for
the management and implementation of the 2010-2011 Community Development
Block Grant program
Discussion:
For FY 2010-2011, the Town of Marana has been awarded $115,000 for its participation in Pima
County's Community Development Block Grant Program. These funds will be distributed from
the County upon approval of the U.S. Department of Housing and Urban Development. This is a
$15,000 decrease from the Town's 2009-2010 award and a $45,000 decrease from FY 2008-
2009. This year, funding has been allotted for Owner Occupied Housing Rehabilitation ($90,000)
and Administration ($25,000).
Housing Rehabilitation is offered to low-income Marana residents living in owner-occupied
housing. These services include work to repair or replace deteriorated roof systems; repair or
replacement of major heating and cooling systems; connection, repair or replacement of septic
systems; minor miscellaneous services for electrical and plumbing upgrades, insulation, ceiling,
wall, window and door repairs; emergency home repair assistance to alleviate hazardous
conditions that threaten the life and/or health safety of the occupants; and weatherization to help
cut down on utility bills by making repairs to the home that will lower heating costs.
Additional funding of $25,000 has been approved to cover administrative costs associated with
the implementation of the other projects. The IGA will cover equipment and services for these
programs retroactively from July 1, 2010, running through June 30, 2011. Quarterly reports will
be provided to Pima County as a condition of the IGA.
Financial Impact:
Regular Council Meeting -November 3, 2010 -Page 4 of 138
This funding does not require any match or leveraged funding. All services will be provided with
direct cost reimbursement.
ATTACHMENTS:
Name:
Description:
Type:
Resolution
O authorization for_CDBG IGA with_Pima County_ CDBG IGA 2010-2011 Resolution
(00023631 ~. DOC
Staff Recommendation:
Staff recommends approval of Resolution No. 2010-104, approving and authorizing full
execution of an intergovernmental agreement with Pima County for the management and
implementation of the 2010-2011 Community Development Block Grant Program.
Commission Recommendation - if applicable:
The Affordable Housing Advisory Commission unanimously recommended the funding packet
submitted to Pima County for the 2010-2011 Community Development Block Grant Program.
Suggested Motion:
I move to adopt Resolution No. 2010-104, approving and authorizing full execution of an
intergovernmental agreement with Pima County for the management and implementation of
the 2010-2011 Community Development Block Grant Program.
Regular Council Meeting -November 3, 2010 -Page 5 of 138
MARANA RESOLUTION N0.2010-104
RELATING TO COMMUNITY DEVELOPMENT; APPROVING AND AUTHORIZING
FULL EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT WITH PIMA
COUNTY FOR THE MANAGEMENT AND IMPLEMENTATION OF THE 2010-2011
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM
WHEREAS the Town of Marana recognizes the need to provide safe affordable housing
and neighborhood infrastructure for its citizens and has applied for Community Development
Block Grant (CDBG) for these purposes; and
WHEREAS Pima County has been awarded funding from the U.S. Department for
Housing and Urban Development under the CDBG program for the 2010-2011 fiscal year; and
WHEREAS the Town of Marana has been selected as asub-grantee through .Pima
County's proposal process; and
WHEREAS this CDBG award will provide program funding for administrative services
and owner-occupied housing rehabilitation.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL, OF THE
TOWN OF MARANA, ARIZONA, that the Mayor is authorized and directed to fully execute an
intergovernmental agreement with Pima County for the use of CDBG funding for Town of
Marana programs.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 3rd day of November, 2010.
Mayor Ed Honea
ATTEST:
APPROVED AS TO FORM:
Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney
Regular Council Meeting -November 3, 2010 -Page 6 of 138
{00023631.DOC /}
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MARANA TOWN COUNCIL
STUDY SESSION MINUTES
11555 W. Civic Center Drive, Marana, Arizona 85653
Council Chambers, October 12, 2010, at or after 6:00 PM
Ed Honea, Mayor
Herb Kai, Vice Mayor
Russell Clanagan, Council Member
Patti Comerford, Council Men~hur
Carol McGorray, Council. Member
Jon Post, Council Member
Roxanne Ziegler, Council ~lcmber
CALL TO ORDER AND ROLL CALL
Due to technical difficulties, the meeting was moved to the Marana Board Room. Mayor
Honea called the meeting to order at6:01 p.m. Town CYerk Bronson called roll. Vice
Mayor Kai and Council Members Comerford and Post were excused. There was a quorum
present.
PLEDGE OF ALLEGIANCI;/INVOCATION/~~1O~ti1[~NT OF SILENCE
Led by Mayor Honea.
APPROVAL OF AGI;ND.~~
Motion to approve iu~~i~c~l hl• C'nu~~c•rl ~ite~r~ber McGorray, second by Council Member
Clanagan. Mr>>iotr c•urrrc~d ununi~nuusl~,•.
DISCUSSIt)N/DIREC`TIUNiPOSSI[3Li~ ACTION
Resolution N~~. 2010-98: Relating to the Marana Municipal Airport; approving and
authorizing the Town Mana`.:er to execute a grant amendment with the Arizona Department
of Transportation (CTrant No. ESS80) extending the expiration date to December 31, 2010
(T VanHook)
Motion to approve ~nuve~l by Council Member McGorray, second by Council Member
Clanagan. Motion curried unanimously.
Presentation: Relating to Environment; presentation on the results of the Town of Marana's
Greenhouse Gas Emissions Inventory (Jennifer Christelman)
Ms. Christelman noted that this project was grant funded. No action necessary.
Discussion regarding HB2246 and the Town Council's ability to regulate the use of
consumer fireworks within the Town limits as of November 30, 2010 (Caine Sklar)
Regular Council Meeting -November 3, 2010 -Page 7 of 138
October 12, 2010 Council Meeting Minutes
Council Member Clanagan asked if the Council did nothing at this time would they have
the option to come back at a later date and approve an ordinance should a public safety
issue arise as a result of this legislation. Ms. Sklar stated that there was nothing in the
legislation that would prevent that. No action necessary.
Presentation: Relating to Capital Improvement Projects; update on the Twin Peaks
Interchange and Twin Peaks RoadlCamino de Mariana Ribbon Cutting/Celebration (Ryan
Benavides)
This item was presented by Barbara Johnson who noted that the official ribbon cutting
would take place on Thursday, November 18 at 3 p.m., and that Tom Ellis and his staff had
put together a community day to celebrate the opening with fundraising walks and other
events on November 13. The road would not be open to through traffic until November 19.
Presentation: Relating to Technology Services; providing ~~ hrccntation and update on the
redesign of the Town ofMarana Internet Website (Deb Thalasitis)
Presented by Deb Thalasitis and Paula Shaper from V~'estWordVisi~n. Ms. Thalasitis
credited all of the staff involved in the initial planning for the wehsite redesign. This
redesign will bring the website maintenance in-housr and save the town approximately
$13,000 annually, which is what the current vendor. Ci~~ic Plus, is receiving. It is expected
to be up and running toward the end of the calenJar year. >\Iany of the proposed graphics
and layouts were presented to Council. Staff asked i~~r Council support to continue
development of the project.
Motion moved by Council Member McGorrny, second hr Council Member Clanagan to
continue development. Motion carried unnnir~rouslt~.
Mr. Davidson noted that tonight would be the last Council meeting attended by Deb
Thalasitis, who would be leaving the Town ~~Cecti~e Friday, October 15~'. He noted her
service to the town. Each Council Member spoke regarding her accomplishments during
her tenure and wished her ~~ cl I in her new endeavors with Pima Community College.
Council 1V1<ember Clanagan noted that Tom Ellis had arrived at the Council Meeting and
extended his thanks for the hard wc7rk Tom had put in on the community event for the
Camino de Manana/Twin Peaks interchange project.
Executive Sessi~7n pursuant to A.R.S. §38-431.03 (A)(3), Council may ask for discussion or
consultation fur legal advice with the Town Attorney concerning any matter listed on this
agenda.
ADJOURNMENT
Motion to adjourn moved by Council Member Clanagan, second by Council Member
McGorray. Motion carried unanimously.
The meeting was adjourned at 7:16 p.m.
CERTIFICATION. I hereby certify that the foregoing are the true and correct minutes of
the Marana Town Council study session held on October 12, 2010. I further certify that a
quorum was present.
Jocelyn C. Bronson, Town Clerk
Regular Council Meeting -November 3, 2010 -Page 8 of 138 2
October 12, 2010 Council Meeting Minutes
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JOINT TOWN COUNCIL /PLANNING COMMISSION
STUDY SESSION
MINUTES
11555 W. Civic Center Drive, Marana, Arizona 85653
Board Room, October 19, 2010, at or after 6:00 p.m.
Ed Honea, Mayor
Herb Kai, Vice Mayor
Council Members
Russell Clanagan
Patti Comerford
Carol McGorray
Jon Post
Roxanne Ziegler
Norman Fogel, Chair
Gary Pound, Vice Chair
Commissioners
Jeffrey Adragna
Marcia Jakab
Billy Schisler
Michael Wiles
Tina Wood
ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA.
Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items
appear in italics. The Council Chambers are wheelchair and handicapped accessible. Any person
who, by reason of any disability, is in need of special services as a result of their disability, such as
assistive listening devices, agenda materials printed in Braille or large print, a signer for the
hearing impaired, etc., will be accommodated. Such special services are available upon prior
request to the Town Clerk at least 10 working days prior to the Council meeting.
CALL TO ORDER AND ROLL CALL
Mayor Honea called the meeting to order at 6:02 p.m., noting that a quorum of the
Planning Commission was not present at the beginning of the meeting, but that a quorum
of the Council was present. All Council members were present. Commissioner Wiles
joined the meeting at 6:10 p.m. and a provided a quorum for the Planning Commission.
PLEDGE OF ALLEGIANCE AND INVOCATION/MOMENT OF SILENCE
Led by Mayor Honea.
APPROVAL OF AGENDA
Motion to approve moved by Council Member Post, second by Council Member
Comerford Motion carried unanimously.
DISCUSSION/DIRECTION/POSSIBLE ACTION
1. Presentation: Relating to Planning; presentation to the Town Council and
Planning Commission on the status of the 2010 General Plan (Kevin Kish)
Mr. Kish noted that they are still taking public comments for the draft plan. He
also noted the different outreach meetings that had taken place and the input
Regular Council Meeting -November 3, 2010 -Page 9 of 138
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JOINT TOWN COUNCIL /PLANNING COMMISSION
STUDY SESSION
MINUTES
11555 W. Civic Center Drive, Marana, Arizona 85653
Board Room, October 19, 2010, at or after 6:00 p.m.
through regional participation. The planning boundary for this General Plan is 220
square miles and runs into Pinal County. The CAG in Pinal County wants to
minimize overlapping jurisdictions, so staff has been working with them on that
as well as property owners. Property owner, The Walton Group, understands why
Marana wants to keep them in the planning area even though there is a potential
conflict with Eloy -across from the Red Rock area. The conflict area consists of
about 220 acres, although The Walton Group has over 1,000 acres in Pinal
County. We are at 122 square miles for the current planning boundary.
Regarding annexation, neither jurisdiction is close to developing near The Walton
Group property at this time -but Marana is actually closer distance-wise. If
Marana gets there first, we'll have a great opportunity to move forward. If Eloy
gets there first; it's kind of a gentleman's agreement to respect whoever gets there
first.
Council asked for clarification as to how the planning boundaries were
established. In the areas where there are irregular boundaries, we are squaring
those to make them easier to identify. To the east, there has been an agreement
with Oro Valley that Shannon Road would be the barrier. To the south, it is the
City of Tucson boundary. The CAP alignment is the north boundary toward Pinal
County.
The presentation continued with further discussion regarding land ownership,
state trust land and the challenges it presents, the economic activity centers -
based on the town's economic roadmap, the future growth areas, future land use
and the roads network. He also noted that at this time, staff sees no need to
encourage development in the Tortolita Fan area. Gilbert Davidson noted that
before there is development, there will have to be a number of conversations with
the environmental community, because they have identified that as critical habitat
area. It will be a long-term community discussion over the next several years.
Planning Commission hearings will be in November and then to Council in
December to get this ready for the ballot in May 2011. Mayor Honea asked when
the Plan was mandated to be done. Mr. Kish said that it was on a 10-year cycle,
but legislation has extended the time to 2015 to take it to the voters. Staff
believed that the opportunity to do the Plan in-house and utilize staff made it
viable to do the plan now so that it wouldn't have to be done again unti12021.
Once the Plan is adopted, it will be prepared to go to the voters.
Regular Council Meeting -November 3, 2010 -Page 10 of 138 2
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9 MARANA ~
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JOINT TOWN COUNCIL /PLANNING COMMISSION
STUDY SESSION
MINUTES
11555 W. Civic Center Drive, Marana, Arizona 85653
Board Room, October 19, 2010, at or after 6:00 p.m.
ADJOURNMENT
Motion to adjourn moved by Council Member Clanagan, second by Council Member
McGorray, and motion moved by Commissioner Jakab, second by Commissioner Wiles,
the meeting was adjourned at 6:36p.m. Motion carried unanimously.
CERTIFICATION
I hereby certify that the foregoing are the true and correct minutes of the Joint Town
Council/Planning Commission Study Session held on October 19, 2010. I further certify
that a quorum of the Council and of the Commission was present.
Jocelyn C. Bronson, Town Clerk
Regular Council Meeting -November 3, 2010 -Page 11 of 138
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REGULAR COUNCIL MEETING
MINUTES
11555 W. Civic Center Drive, Marana, Arizona 85653
Council Chambers, October 19, 2010, at or after 7:00 PM
Ed Honea, Mayor
Herb Kai, Vice Mayor
Russell Clanagan, Council Member
Patti Comerford, Council Menibcr
Carol McGorray, Council Member
Jon Post, Council Member
Roxanne Ziegler, Council Member
REGULAR COUNCIL MEETING
CALL TO ORDER AND ROLL CALL
Meeting called to order at 7:00 p.m. by 1~Ia~~or 1Jonea. To~~~n Clerk Bronson called
roll. All Council Members were present.
PLEDGE OF ALLEGIANCE/INVOCATIUNifVIOMENf OF SILENCE
Led by Mayor Honea.
APPROVAL OF ADEN D:1
Motion to approve fnovt~~l ht' Corurcil A1c~r~ber McGorray, second by Council tYfember
Zieglep .~lfo~io» curried ~nur~~iF~x-r~sl1~.
CALL "I'(_) ~l~l IE PUBLIC
David Morales spoke on prayer at Council meetings and that he had approached two
local pastors ~~ hu are willing to give the invocation. He also spoke on the issue of
dynamics and that things arc changing, using the example of cutting taxes to improve the
economy in the 197(ls btlt how cutting taxes now does not help the economy.
Jens T. Hill spoke a~~~tinst the proposed landfill.
Linda Zupi spoke in favor of the landfill.
PROCLAMATIONS
2010 Arizona Cities and Towns Week
MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS
Council Member Ziegler reported that she had heard many good comments about
Marana at a recent political debate at the UA.
Regular Council Meeting -November 3, 2010 -Page 12 of 138
October 19, 2010 Council Meeting Minutes
Council Member McGorray reported on the successful fundraiser at the Ritz Carlton
for the Marana Health Center. She also noted that the Dove Mountain Rotary golf
tournament at Heritage Highlands will fund the school education process.
Mayor Honea reported on attending the funeral services for Lt. Col. "Big Bob" Bob
Delaney who had been a resident of both Marana and Oro Valley and attended many
Council meetings for both towns. The Mayor also attended the annual MADD awards
banquet and noted that one of Marana's office, Joe Miller, received an award for his work
proactive work regarding DUI suppression. Several Marana officers and Laine Sklar from
the Attorney's Office was there. On Friday he attended the MPA Common Ground
awards at Reid Park. The first award was shared with the UA Technology Park for the
Economic Roadwork Map which was headed by Josh Wright. The second award was for
the Twin Peaks Interchange/Camino de Manana project. It's the largest project done in
conjunction with the RTA and others, kudos to the Marana staff f~~r putting that together.
Marana also won the award for the public works project. tJn Noy ember 13 there will be
a fun day to celebrate the opening of the interchange. There will he ~~ alks and runs and
lots of vendors. On November 18 at 3 pm, ADOT's ~lircctor and other ~~ ill cut the ribbon
and open the road at the interchange.
MANAGER' S REPORT: SUMMARY OF CUk1Z E: N I I ~ V CNTS
Gilbert Davidson thanked all of the staff who helped ~~ itl~ tl~e Common Ground award
process. It was a great night for Marana. He noted that tits. Thalasitis has moved on to
her new position and applications from a national search arc starting to come in for the
Assistant Town Manager. He also noted the ne~~- Council IsecutiVe Report provided to
Council which links into the strategic and general plan elements.
PRESENTATIONS
CONSENT AGENi~,
Motion to approve move ~! ht' Curutcil lllember ~'ost, second by Council Member
Clanagan. lt7ulin~l carric~~/ ururi~r~ii~~rrs/t'.
C 1: Resolution No. ?0l 0-9~I: Relating to Community Development; approving and
authorizinc the Town Manager w execute Subgrantee Agreements with the Arizona
Departmc;nt of Homeland Security for purposes of receiving funds under the 2010 State
Homeland Security Grant Prc,gram and Urban Area Security Initiative
C 2: Resolution No. ?010-100: Relating to Traffic Engineering; approving and
authorizing the Mayer to execute an intergovernmental agreement with the Regional
Transportation Authurity of Pima County to purchase and install Marana wireless signal
updates
C 3: Resolution No. 2010-101: Relating to Public Works; abandoning a strip of public
right-of--way off Sanders Road south of Marana Road within Section 20, Township 11
South, Range 11 East, Gila and Salt River Base and Meridian, Pima County, Arizona
C 4: Resolution No. 2010-102: Relating to Personnel; approving and authorizing staff
to implement an amended Separation Incentive Plan for fiscal year 2011; authorizing
staffto make additional payments to fiscal year 2011 Separation Incentive Plan
participants in conformance with the amended Separation Incentive Plan
Regular Council Meeting -November 3, 2010 -Page 13 of 138 2
October 19, 2010 Council Meeting Minutes
C 5: Minutes of the October 5, 2010 regular council meeting
LIQUOR LICENSES
L 1: Relating to Relating to Liquor Licenses; recommendation to the state liquor board
regarding a New Series #12 (Restaurant) liquor license application submitted by James
Robert Ledbetter on behalf of Jimmy's American Bistro located at 8235 N. Silverbell
Road # 105
Presented by Jocelyn Bronson who noted that no protests had been received for this
application, and staff recommended approval.
Motion to approve moved by Council Member Clanagan, scrc•(,~rd h_p Council Member
McGorray. Motion carried unanimously.
Council Member Clanagan invited Mr. Ledbetter to address the (-'council. Mr. Ledbetter
noted that he and his family lived in Marana and that thc~ were lool:in`~ forward to doing
business in the town, and invited everyone to come t~~r Vood food at his restaurant.
L 2: Relating to Liquor Licenses; recommendation t~~ the statz liquor board regarding the
special event liquor license application submitted b~ the St. Christopher Catholic Church,
12101 W. Moore Road, for a church fundraiser
Presented by Jocelyn Bronson, who noted staff`s recommendation for approval.
Motion to approve moved by Council Menthc~r Post, second 6y Council Member
Clanagan. Motion carried ununimously.
BOARDS, COMMISSIONS .1ND COMMIT fIF,S
COUNCIL AC"LION
A 1: PL?I3LIC HEARING: t)rdinance Nu. 2010.18: Relating to Land Development;
amendin~~ the MaranaT.~lnd Development Code to amend Title 3 (Definitions) to add
defrtiitiuns of "medical marijuana d~~pensary" and "medical marijuana dispensary offsite
cultivation Ic~cation"; to amend Title 5 (Zoning) to add "medical marijuana dispensary" as
a conditional use in the RC Regional Commercial zone (05.11.04), the LI Light Industrial
zone (05.12.02), and the III Heavy Industry zone (05.12.03), and to add "medical
marijuana dispenser} offsite cultivation location" as a conditional use in the AG
Agricultural zone (U~. I U.O1), the LI Light Industrial zone (05.12.02), and the HI Heavy
Industry zone (05.12.U3); and to amend Title 8 (General Development Regulations) to
add a new section 08.08 entitled "Medical Marijuana Uses," imposing special setback,
performance, and application requirements for all "medical marijuana dispensary" and
"medical marijuana dispensary offsite cultivation location" uses; and establishing an
effective date
Mayor Honea noted that he had one speaker card on this item, and then opened the
public hearing. Presented by Frank Cassidy, who noted that he brought this item to
Council previously as a presentation and that it had gone to Commission and it was
unanimously recommended approval by the Commission with the proposed provision
Regular Council Meeting -November 3, 2010 -Page 14 of 138
October 19, 2010 Council Meeting Minutes
which places the dispensary locations and the cultivation use location into the various
zones and also creates regulations for these uses. One of the significant changes
recommended by the Commission is the maximum number of dispensaries that could be
placed across the state and figured that based on current population. Marana should only
get one dispensary, but to avoid issues of competition, staff put a maximum of two
dispensaries in, and then for every 50,000 population above the current population, we
would get one more dispensary. The other item is that the Pima County Attorney sent a
letter to all Council requesting that reference be made to newly adopted Pima County
health regulations, and if you were to insert that, the proposed language is on the screen
in front of you. You would add a paragraph 11 to section 08.08B. That language requires
anyone operating one of these facilities to prove that they meet the qualifications that are
adopted.
Council Member Comerford asked if that wasn't already ~aoint~ to be state regulated.
Mr. Cassidy replied that yes, it would be state regulated. and he ~~ cnt on to say that the
county has essentially taken the position that they ha~~e some rights Allocated to them
from the state health department, and based on that. t h ~ ~ have adopted t h c it own health
regulations. Council Member Clanagan asked for [\1r~ Cassidy's recommendation
based on that. Mr. Cassidy replied that he thought it ~~ as a ~~ood idea, because what the
County's regulations do is bring the language into ali~nmcnt with the controlled
substances (federal) act by requiring that anyone operat i n ~~ a dispensary be properly
licensed, so it gives another layer of restriction on this type of use. Mayor Honea asked
there was any conflict between who (the. to~~ n or the counl~ l gig ~s an individual the
permit for a dispensary site. Mr. Cassidy responded that there is no conflict. As part of
the application process to the town, they ha~-e to shu~~~ ci~rnpliance to us with the county
code. Council Member Ziegler asked for clanl:ication ofproof of compliance from Pima
County. Mr. Cassidy explained the registration and permit process with the county and
the town. There are teas other items on the list the application that the applicant would
bring in which actually mirror the state act. however, everything on the state application
is confidential and the torn ~~~ouldn't he able'to get that, so we are requesting that same
information o^ the to« n•s application. Council Member McGorray asked for
clarification on where; the marijuana: would be grown and ifthere would be a sales tax on
the sales. ~'Ir. Cassidy repl icd that this would probably fall within the pharmaceutical
exemption for tales tax. Council Member Post asked ifthere was a regulation on the
user themselves to prohibit driving or anything of that nature. Mr. Cassidy said that they
still could not c>herate a motor vehicle under the influence, although there is some
language that if a hlcx>d tet was done and there was some residual indication that a
person has used marl j uana and that wouldn't necessarily mean they would get aDUI -
there would still have to be proof of impairment. Our police officers would not require
additional training. Council Member Post asked if we were as restrictive as we can be
with state requirements. Mr. Cassidy said that it's hard to know the answer because
state law says we can adopt reasonable zoning regulations. We think we have looked at
logical uses, i.e. churches, schools and facilities that rehabilitate drug users and we have
created what we think are logical separation requirements, but he doesn't know if our
setbacks could be greater. By having the additional limitation of not more than two
dispensaries, that was a good catch by the Planning Commission. So as legal counsel, he
feels comfortable with the language and believes it would hold up in court. Council
Member Clanagan asked if the Light Industrial zone on the section of Tangerine Road
Regular Council Meeting -November 3, 2010 -Page 15 of 138 4
October 19, 2010 Council Meeting Minutes
where Breakers is at; how is that zoned and. could a facility be located that close to an
amusement park. Mr. Cassidy stated that they did not adopt a separation from an
amusement park, so you could adopt that under paragraph 08.08E. Council Member
Clanagan asked for that stipulation to be inserted. Council Member Ziegler asked if
these wouldn't come in as a conditional use permit. Mr. Cassidy replied that it is more
defensible to create an objective standard rather than using the conditional use permit
process. Council Member Comerford noted that there are several family entertainment
businesses in Marana that you would not want these dispensaries located near. Council
Member Post asked if a dispensary was located and then a school decided to go in,
would the dispensary be grandfathered. The response was yes, the same as businesses
selling spirituous beverages. Discussion ensued that all zoning comes to an end
eventually and ends up at a residential area. Mr. Kish responded to questions from
Council regarding the various zoning areas. These areas are not ~cnerally adjacent to
residential and traditional neighborhoods. Mr. Cassidy replied that a provision could be
inserted that there could be additional setbacks for proposed development, but depending
on how you interpret `proposed.' With respect to the offsitc cultivation location which go
in the AG zones, if you kept them 1000 feet awa~~ ti-om any residential coned area, that
would be pretty restrictive. As Mr. Kish noted. a lot ol_these areas are already by their
nature separated from the residentially zoned are,~s.
Mayor Honea stated that perhaps Council should pass ~~ hat we have until we find out
what other municipalities do, and there is the possibility that the legislation won't pass.
He also noted that if someone in Gladden harms was permitted to grow marijuana in their
bathroom because there wasn't a dispensary ~~ ithin ?~ miles that would negate the
restrictions. So some ofthis discussion could mal:u it so convoluted it can't be enforced.
Mayor Honea called on David Morales, who spoke again of the term dynamic, and noted
that 25 years ago this subject ~youtdn't be discussed before Council. Everything points to
this legislation passin~~ because people don't see this as harmful He believes if it passes,
it will be taxed because the C ouncil and police force will have to enforce it. He noted the
distance 1~om hi; house. to pima Cull<<~e is less than 25 miles so it shouldn't be an issue
where i t i s ~~ town.
Ms. Bronson addressed Council acid noted that Council could vote on both Ordinance
No. 2010.18 and Resolution No. 2010-103 as one item after she reads Resolution No.
2010-103.
Motion by Council Member Clanagan to include Ms. Bronson's comments and the
paragraph Mr. Cassidy included from Ms. LaWall's letter as well as the insertion,
Second by Council Member McGorray. Mr. Cassidy asked for clarification if the
motion included the language regarding family recreation. Council Member Clanagan
stated that his motion did include that language when it was added along with Mr.
LaWall's language. Motion carried unanimously.
Resolution No. 2010-103; Relating to Development; declaring the amendments to
Marana Land Development Code Title 3 (Definitions), Title 5 (Zoning), and Title 8
(General Development Regulations) relating to "medical marijuana dispensary" and
Regular Council Meeting -November 3, 2010 -Page 16 of 138
October 19, 2010 Council Meeting Minutes
"medical marijuana dispensary offsite cultivation location" zoning regulations as a public
record filed with the town clerk
See above.
ITEMS FOR DISCUSSION/POSSIBLE ACTION
D 1: Legislative/Intergovernmental Report: Discussion/Direction/Action regarding all
pending state and federal legislation and report on recent meetings of other legislative
bodies
Gilbert Davidson noted that once the election results from November 2 are in, we will
have an opportunity to analysis and it will give us a better ides ~~ f- ~~~hat the Legislature
plans to pursue so that we can get with the League to pursue our identified initiatives
along with other cities and towns to effect the appropriate lc~~islati~~n.
EXECUTIVE SESSIONS
Motion to go into executive session on Items E2, F 3 ~rncl E4 moved bj~ Council Member
Post, second by Council Member McGorray. hlotiorr rcn°ried unanimoush~.
Council left the dais at 7:56 p.m.
Council returned to the dais at 9:16 p.m.
E 1: Executive Session pursuant to A.R.S. ~ .g-~3 I .U3 (A>(~ )- Council may ask for
discussion or consultation for legal advice ~~-ith the To« n Attorney concerning any matter
listed on this agenda.
E 2: Executive Session pursuam to A.R.S. § 38-43~ .03(A)(3),(4) and (7), discussion or
consultation for legal adv icc ~~ ith the Town's attorneys and discussion and to consider its
position and instruct the ~I-own Man.~~~cr and staff concerning (1) the lawsuit entitled
Town of 1\~1 a ra n a ~~ . P i n~ a ~' ~~ u n t ~, I' i m a County v. Marana (consolidated), Maricopa
County Superior Court No. C'V~(lOb-001.131, (2) pending legal issues, settlement
discussions and contract nc~~otiations relating to the transition of Marana wastewater
collection and treatment try the Town of Marana
E 3: Executive session pursuant to A.R.S. § 38-431.03(A)(3) and (4) for legal advice
with the town's auorne~ s and to consider the town's position and instruct its attorneys
regarding the Tortolita-Preserve lease with Arizona State Land Department, ASLD Lease
Number 03-105436=y9
E 4: Executive Session pursuant to A.R.S. § 38-431.03(A)(4) and (7) to consider the
Town's position and instruct its representatives regarding negotiations for the settlement
of the lawsuit entitled State of Arizona v. Southwest Mining & Development, et al. filed
in the Pima County Superior Court as C2007-7232
This item was presented by Cedric Hay who requested Council approval of settlement in
the matter at $825,000 plus statutory interest.
Regular Council Meeting -November 3, 2010 -Page 17 of 138 6
October 19, 2010 Council Meeting Minutes
Motion to approve moved by Council Member McGorray, second by Vice Mayor Kai.
Motion passed 6-1 with Council Member Ziegler voting nay. Council Member Ziegler
noted for the record her disappointment about leaving $400,000 on the table and stated
that not trying to reduce this bill is the wrong decision.. There are times to take risks
and this is one of them.
FUTURE AGENDA ITEMS
ADJOURNMENT
Motion to adjourn moved by Council Member Post, second by Council Member
Clanagan. Motion carried unanimously.
The meeting was adjourned at 9:18 p.m.
CERTIFICATION
I hereby certify that the foregoing are the true and correct minutes of~ the Marana Town
Council meeting held on October 19, 2010. I further certify that a quor~un ~~•as present.
Jocelyn C. Bronson, Town Clerk
Regular Council Meeting -November 3, 2010 -Page 18 of 138
October 19, 2010 Council Meeting Minutes
~a~"~
~~
~~
°~
11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
Council Chambers, November 3, 2010, 7:00:00 PM
To: Mayor and Council Item L 1
From: Jocelyn C. Bronson ,Town Clerk
Strategic Plan Focus Area:
Not Applicable
Subject: Relating to Liquor Licenses; recommendation to the State Liquor Board regarding
an Acquisition of Control change submitted William Ward Mack on behalf of Dove
Mountain Grill, located at 12130 N. Dove Mountain Boulevard #194
Discussion:
This application is for an Acquisition of Control change of a Series #12 (Restaurant) liquor
license submitted by William Ward Mack on behalf of Dove Mountain Grill, located at 12130 N.
Dove Mountain Boulevard #194.
Pursuant to state law, "the local governing body of the city, town or county may protest the
acquisition of control within sixty days based on the capability, reliability and qualification of the
person acquiring control."
The Marana Police Department has conducted a local background check and has no objections to
the issuance of this license.
ATTACHMENTS:
Name: Description: Type:
^ Descriptions_of common_types_of_liquor_IicenseS_
(00018233) DO.G. Descriptions of common types of liquor licenses Backup Material
^ Affdavt_of_Posting.pdf Affidavit of Posting Backup Material
^ Use Form LGB Recomm..e..n..d..aton,.pdf Recommendation Backup Material
Staff Recommendation:
Staff recommends approval and recommendation to the state liquor board for this Acquisition of
Control liquor license.
Suggested Motion:
OPTION 1: I move to adopt an order to not protest the Acquisition of Control change of a
Series #12 (Restaurant) application submitted by William Ward Mack on behalf of Dove
Mountain Grill, located at 12130 N. Dove Mountain Boulevard #194.
Regular Council Meeting -November 3, 2010 -Page 19 of 138
OPTION 2: I move to adopt an order protesting the Acquisition of Control change of a Series
#12 (Restaurant) application submitted by William Ward Mack on behalf of Dove Mountain
Grill, located at 12130 N. Dove Mountain Boulevard #194.
Regular Council Meeting -November 3, 2010 -Page 20 of 138
Department of Liquor Licenses and Control
Descriptions of Common Types of Liquor Licenses
Series 06 Bar
This liquor license is transferable from person to person andlor locatian to location within the
same county only and allows the holder bath on- & off-sale retail privileges. This license allows
a bar retailer to sell and serve spirituous liquors, primarily by individual portions, to be
consumed on the premises and in the original container for consumption on or off the premises.
A retailer with off-sale privileges may deliver spirituous liquor off of the licensed premises in
connection with a retail sale. Payment must be made no later than the time of delivery. Off-sale
("To Go'°) package sales of spirituous liquor can be made on the bar premises as long as the
area of off-sale operation does not utilize a separate entrance and exit from the arses provided
far the bar. A hotel or metal with a Series 06 license may sell spirituous liquor in sealed
containers in individual portions to its registered guests at any time by means of a minibar
located in the guest reams of registered guests. The registered guest must be at least twenty-
one (21) years of age. Access to the minibar is by a key or magnetic card device and not
furnished to a guest between the hours of 1:00 a.m. and 6:00 a.m. Monday through Saturday
and 1:00 a.m. and 10:00 a.m. an Sundays.
This is a quota license, which means there are no "new" Series 06 licenses available. It must be
purchased privately and the price is based on availability in the county. Once a Series 06 has
been purchased, the buyer must apply for a transfer to have the license put in his or her name,
at the same or another location.
Series 07 Beer and Wine Bar
This liquor license is transferable from person to person and/or location to locatian within the
same county only and allows the holder both on- & off-sale retail privileges. This license allows
a beer and wine bar retailer to sell and serve beer and wine, primarily by individual portions, to
be consumed on the premises and in the original container for consumption on or off the
premises. A retailer with off-sale privileges may deliver spirituous liquor off of the licensed
premises in connection with a retail sale. Off-sale ("To Go"} package sales can be made on the
bar premises as long as the area of off-sale operation does not utilize a separate entrance and
exit from the one provided for fibs bar. Payment must be made na later than the time of delivery.
This is a quota license, which means there are no "new" Series 07 licenses available. It must be
purchased privately and the price is based on availability in the county. Once a Series 07 has
been purchased, the buyer must apply for a transfer to have the license put in his or her name,
at the same or another location.
Regul~~~~in~ -November 3, 2010 -Page 21 of 138
Department of Liquor Licenses and Control
Descriptions of Common Types of Liquor Licenses
Series 09 Liquor Store
This liquor license is transferable from person to person and/or location to location within the
same county only and allows the holder off--sale retail privileges. This license allows a spirituous
liquor store retailer to sell all spirituous liquors, only in the original unbroken package, to be
taken away from the premises of the retailer and consumed off the premises. A retailer with off-
sale privileges may deliver spirituous liquor off of the licensed premises in connection with a
retail sale. Payment must be made na later than the time of delivery.
Series 10 Beer and Wine Stare
This non-transferable, off-sale retail privileges liquor license allows a retail stare to sell beer and
wine {no other spirituous liquors), only in the original unbroken package, to be taken away from
the premises of the retailer and consumed off the premises. A retailer with off-sale privileges
may deliver spirituous liquor off of the licensed premises in connection with a retail sale.
Payment must be made no later than the time of delivery.
Series 11 Hotel/Motel
This non-transferable, on-sale retail privileges liquor license allows the holder of a hotel/motel
license to sell and serve spirituous liquor solely for consumption an the premises of a hotel or
motel that has a restaurant where food is served on the premises. The restaurant an the
licensed premises must derive at least forty percent {40%) of its gross revenue from the sale of
food. The holder of this license may sell spirituous liquor in sealed containers in individual
portions to its registered guests at any time by means of a minibar located in the guest roams of
registered guests. The registered guest must be at least twenty-one {21) years of age. Access
to the minibar is by a key or magnetic card device and not furnished to a guest between the
hours of 1:00 a.m. and 6:00 a.m. Monday through Saturday and 1:00 a.m. and 10:00 a.m. an
Sundays.
Series 12 Restal.~rant
~hr- nn^:-t'e~sferabie an-sale retail pri~~iiec~es Ii~~~c~r lac=~rt~e allows the hc~f~ler ~r <~ restaurant
license t~; ~~.eli and sere s~~i~ ituous li~.~uor ~oiely F~,i : -J~~i :!rnptian c~r~ thr: ~rei7~ises rf ar
estei~l~shrnent t~,^;?Cil CieflVeS of l=ast fCll`, :JC'Ccilt ~~•~ ~~f [tc, "1(GSS f+~'ti't'~'t~~' f~'Jfl? trle $_~t~ of
food. Failure to meet th~~ ~0''-%:, fcc~d redl_lirement shall res~!It ire ~ewxaiicn of the lice>~s=~.
Regul~~l~in~ -November 3, 2010 -Page 22 of 138
R'int Form
ARIZONA DEPARTMENT OF LIQUOR LICENSES AND CONTROL
800 W Washington 5th Floor
Phoenix AZ 85007-2934
www.azliquor.gov
`{602) 542-5141
AFFIDAVIT OF POSTING
10-06-2010
Date of Posting: Date of Posting Removal:
Mack William
Applicant Name:
Last
Business Address:
First
12130 N. Dove Mountain Blvd., #194 Marana
Street
12103910
License #:
City
Ward
Middle
85653
Zip
I hereby certify that pursuant to A.R.S. § 4-201, I posted notice in a conspicuous place on the premises
proposed to be licensed bythe above applicant and said notice was posted for at least twenty(20) days.
Print Name of City/County Official
Title
Telephone N
Signature Date Signed
Return this affidavit with your recommendation (i.e., Minutes of Meeting, Verbatim, etc.) or any other related
documents.
If you have any questions please call (602) 542-5141 and ask for the Licensing Division.
Individuals requiring special accommodations please call (602) 542-9027
L X0119 4/2009
Regular Council Meeting -November 3, 2010 -Page 23 of 138
Print Form
Arizona Department of Liquor Licenses and Control
800 West Washington, 5th Floor
Phoenix, Arizona 85007
www.azliquor.gov
602-542-5141
LOCAL GOVERNING BODY RECOMMENDATION
MARANA
CITY~TOWN ~JF
PIMA
COUNTY OF
12103910
STATE APPLICATION #
. ARIZONA. CITY/TOW N/IOU NTY #
LL2010-10
ORDER #
Regular Marana Town Council
At a meeting of the
(Regular orSpeciap (Governing body)
Marana 3rd November
of held on the ` day of
(Day) (Month)
William W. Mack
application of
12103910
the premises described in Application #
considered as provided by Title 4, A.R.S. as amended.
of the Cit~/Town/~~ounty
2010
the
(Year)
for a license to sell spirituous liquors at
12
,License Class Series was
William W. Mack
IT IS THEREFORE ORDERED that the APPLICATION of
is hereby recommended for
a license to sell spirituous liquors of the class, and in the manner designated in the Application.
IT IS FURTHER ORDERED that a Certified Copy of this Order be immediately transmitted to the
Department of Liquor Licenses and Control, Licensing Division, Phoenix, Arizona.
the Town of Marana
DATED AT
This day of
(Day)
r~ ioo~ osizoo9
(approva I/disapproval)
(Month)
CITY, TOW NCOUNTY CLERK
* Disabled individuals requiring special accommodations please call the Department
Regular Council Meeting -November 3, 2010 -Page 24 of 138
~~"°~
~~
~~~~
b,> ~~a
11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
Council Chambers, November 3, 2010, 7:00:00 PM
To: Mayor and Council Item A 1
From: Kevin Kish ,Development Services General Manager
Strategic Plan Focus Area:
Community Building
Strategic Plan Focus Area -Additional Information:
Community Building: Identify short- and long-term solutions to solid waste disposal for the
Town and its residents.
Subject: PUBLIC HEARING: Ordinance No. 2010.11: Relating to Development; approving
a rezoning creating the Marana Regional Landfill Specific Plan and approving a
minor amendment to the General Plan
Discussion:
Continuance
This public hearing item was heard at the July 20, 2010 regular council meeting. The Council
voted unanimously to continue the item to its August 17, 2010 meeting. At the August 17,
2010 regular council meeting, the Town Council heard from representatives of the owner, staff,
and members of the public. The Council did not take any action and referred the development
agreement to the Marana Planning Commission for their review and recommendation.
At a public hearing held by the Planning Commission on September 29, 2010, the Commission
passed and adopted Planning Commission Resolution 2010.01 recommending that the Town
Council approve the Marana Regional Landfill Development Agreement with minor revisions
and corrections. The recommendations are addressed in greater detail in a separate Public
Hearing for the Marana Regional Landfill Development Agreement.
Rezoning Request
The Planning Center, representing DKL Holdings, Inc., is requesting approval for a change in
zoning on approximately 590 acres of property located one mile north of Avra Valley Road, one
mile east of Trico Road, and one-half mile south of Silverbell Road within a portion of Section 1,
Township 12 South, and Range 10 East for the purpose of establishing the Marana Regional
Landfill Specific Plan. The current zoning of the site is 'RD-180' (Rural Development -
minimum lot size of 180,000 square feet). The proposed Specific Plan zoning is intended to
accommodate a municipal solid waste landfill, material recovery, recycling operations, and
other related uses.
Marana General Plan
Regular Council Meeting -November 3, 2010 -Page 25 of 138
The Town of Marana General Plan designates the future land use of the subject property as
Rural-Density Residential (RDR) with a density range of 0.1-0.5 residences per acre. This
designation is characterized by single-family detached homes on very large properties, as well. as
by neighborhood commercial development. The applicant's request includes a minor amendment
to the General Plan from the Rural Density Residential designation to Master Planning Area
(MPA), which applies to areas in which future development is subject to approved specific
plans.
Land Use
The property subject to the proposed rezoning is currently vacant and has been previously used in
an agricultural capacity. The adjacent property to the north and west of the rezoning area is
currently zoned Pima County RH (Rural Homestead), and currently undeveloped. A portion of
the adjacent property to the south is zoned Marana 'RD-180' (Rural Development -minimum lot
size of 180,000 square feet) and the remaining portion is zoned Pima County RH (Rural
Homestead) and currently used for agricultural purposes. The property to the east, zoned Marana
`C' (Large Lot Zone) has been predominantly used for agricultural purposes.
The rezoning area is affected by the East Branch of the Brawley wash, and the associated FEMA
floodplain covers the majority of the site. Additionally, there are other minor flows that impact
the site from the south. These flows are directed around the property by an existing diversion
channel where they join the East Branch floodplain at the north property line. It is likely that
Section 404 permitting will be required for portions of the site. The final design of the site during
the review of the Development Plan will determine the extent to which 404 permitting will be
required.
The Marana Regional Landfill Specific Plan proposes two land use designations: Industrial (I)
and Open Space (OS). The Industrial designation will accommodate the more intensive uses
including solid waste disposal, recycling and composting operations, maintenance and
administrative functions, renewable energy generation, and similar uses. The Open Space
designation will accommodate the less intensive uses such as stormwater basins, drainage
channels, and landscaping and screening. The disposal area of the proposed facility consists of
approximately 430 acres. The disposal area will be encompassed by 103 acres of buffer area to
mitigate visual and other potential impacts to surrounding properties created by the operational
activities of the facility. Substantial landscape buffer yards at an approximate width of 200 feet
are proposed along the north, west, and south boundaries of the site and roughly 470 feet in width
along the east boundary of the site. The buffer yards along the south and west boundaries will
include 3:1 sloped landscaped earthen berms 15 feet in height to be constructed with the initial
excavation of the first phase of the landfill. Due to existing drainage conditions, a combination of
flood control berming and revegetation is proposed along the north and east boundaries.
The solid waste facility will be developed in a series of phases. The operational sequence of the
disposal area will begin in the southwest corner of the site and proceed east and then north in a
serpentine pattern. The disposal area will consist of individual units typically five to ten acres in
size each designed to have a life span up to two years. Each unit will be certified by a registered
professional engineer and approved by the Arizona Department of Environmental Quality prior
to opening for disposal operations. The solid waste facility will be developed in accordance with
all local, state, and federal requirements for solid waste disposal, groundwater protection, site
drainage, vector control, and site reclamation and revegetation. The state-of-the-art facility
design will include an ADEQ approved liner system, leachate management system, groundwater
monitoring system, and landfill gas monitoring system. Only non-hazardous waste will be
accepted for landfilling at the proposed facility. In accordance with federal regulations, the
disposal of liquid wastes, sludges, and any hazardous waste as defined and governed by the
Resource Conservation and Recovery Act of 1976 (RCRA) and as amended by the Superfund
Amendments and Reauthorization Act of 1987, will be prohibited.
Should the rezoning request be approved, the developer will be required to process a
Regular Council Meeting -November 3, 2010 -Page 26 of 138
development plan, landscape plan, native plant permit, and all associated improvement plans
through the Town. Additionally, the developer will be required to process all required State and
Federal permitting associated with all proposed uses for the site.
Access and Circulation
Access to the site will be provided via an improved 80-foot wide private access easement that
runs north/south from Avra Valley Road to the southeast corner of the site. The design of the
roadway will be completed during the development review process. Turn lanes are anticipated
onto and off of Avra Valley Road in order to reduce the potential for traffic conflicts. The
rezoning site analysis has preliminarily addressed the access and circulation issues associated
with this project, and Town staff and their consultants have begun the review of a Traffic Impact
Study for the project. Both off-site and on-site circulation will be reviewed more thoroughly
during the development review process. The review of the Traffic Impact Study must
be completed and accepted by the Town prior to approval of a development plan.
Infrastructure
On-site wells will provide for construction water, dust control, fire suppression and other non-
potable uses. Potable water will be provided by either on-site wells and/or bottled water. The
anticipated wastewater needs for the proposed facility will be accommodated by an on-site
treatment system (septic) to provide service to the administration and maintenance buildings. The
wastewater system will be planned so that the facility may be connected to the public sewer
system at such time that it becomes available to the site. TRICO Electric Cooperative has stated
that it has facilities in the area to provide service to this site. The developer will be required to
complete the process of having the property annexed into a fire district or otherwise provide for
fire protection service.
Cultural Resources
One archaeological resource area has been identified near the northeast corner of the site. The
area is proposed to be set aside as open space and not disturbed. Additional cultural
resource reviews will be required during the development review process, and clearance will be
required prior to the issuance of a grading permit.
Citizen Participation
The applicant's team conducted two neighborhood meetings to inform the neighboring property
owners and other interested parties of the rezoning proposal and to address questions and
concerns. The first meeting was held on February 9, 2010 at the Sky Rider Cafe at the Marana
Regional Airport. The second meeting was held on March 18, 2010 at the Town of Marana
Conference Center. The applicant notified property owners at a minimum distance of one (1)
mile, and up to 6.5 miles from the proposed project site. Those in attendance expressed the
following concerns: 1.) general health and environmental issues; 2.) potential infiltration of
leachates into the groundwater and contamination of local wells; 3.) capacity of existing road
infrastructure in the area to accommodate the increased traffic; 4.) impact to the Avra Valley
Road interchange; 5.) odor, birds, airborne particulate matter, and blowing debris onto nearby
properties; 6.) management of off-site drainage; 7.) potential impact to the wildlife in the area; 8.)
ultimate height of landfill negatively impacting viewsheds of nearby property owners; 9.)
potential impact to property values; 10.) potential impact to airport operations. A public open
house was held July 8, 2010 from 10:00 am to 6:00 pm in the Town of Marana
Conference Center. The applicant's team of consultants addressed community concerns and
discussed the various components of the proposed development.
Public Notification
The public hearing was properly advertised and all property owners within 300 feet of the subject
property were notified by mail of the proposed use and date of the public hearing. Additionally, a
Public Hearing notice was posted at the Marana Municipal Complex, Marana Operations
Center, and the Continental Ranch and Heritage Highlands recreation centers as well as on the
Town's website.
Regular Council Meeting -November 3, 2010 -Page 27 of 138
Waiver of Potential Arizona Property Rights Protection Act Compensation Claims
To protect the Town against potential claims filed under the Arizona Property Rights Protection
Act as a result of changes in the land use laws that apply to the rezoning area by the Town's
adoption of this ordinance, staff requires that the applicant waive any rights to compensation for
diminution in value by execution and recordation of the attached waiver instrument. The Consent
to Conditions as a result of changes in the land use laws that apply to the rezoning area resulting
from the approval of this zoning. If the applicant does not forward the waiver in time to record it
within 90 days after the ordinance is passed, the ordinance becomes null and void, as if no action
were ever taken to pass the ordinance.
ATTACHMENTS:
Name:
^ Landfill_$P Adopting Ordtna..nce_(00023685~.DOC
^ PCZ-09057_Marana Regional Landfill__207 WaivecDOC
^ Exhibit A lLegal_D.e. scription,pdf
^ PCZ-090...57_Marana Regional_Landfll S.P =Application.pdf
^ PCZ-09057_Maran.a Regional Landf..ill_,Location Map,pdf
^ File Viewny_Statement.doc
Description: Type:
PCZ-
09057_LandfillSP_Adopting_ord Ordinance
207 Waiver Exhibit
Legal Description Exhibit
Backup
Application Material
Backup
Location Map Material
Backup
File Viewing Statement Material
^ PCZ- Planning Commission Backup
09057_Marana Regional_Landfill_Planning Commssion_recommendation.pdf Recommendation Material
Planning Commission Minutes 2- Backup
^ Planning_Commission_Minutes 2-24-10.pdf 24-10 Material
Staff Recommendation:
Staff recommends approval of the rezoning with the following conditions:
1. Compliance with all provisions of Town codes and ordinances, and policies of the General
Plan current at the time of development, including but not limited to requirements for public
improvements.
2. The Marana Regional Landfill shall be developed in accordance with all local, state, and
federal regulations and requirements for solid waste disposal, groundwater protection, site
drainage, vector control, and site reclamation and revegetation.
3. The Marana Regional Landfill shall be used only for the final disposal of non-hazardous
solid waste in accordance with federal and Arizona state law and the terms of any governmental
authorizations applicable to the project or the property.
4. All Arizona Department of Environmental Quality (ADEQ) requirements must be achieved
and appropriate permits obtained including, but not limited to: approval of a solid waste facility
plan; aquifer protection permit; 404 permit; financial assurance demonstration; and, Arizona
pollutant discharge system (AZPDES) multi-sector general permit with a storm water pollution
prevention plan for construction activities and landfill operations.
5. All Arizona Department of Water Resources (ADWR) requirements must be achieved and
appropriate permits obtained including, but not limited to: groundwater industrial use permit and
drilling permits for monitoring wells.
Regular Council Meeting -November 3, 2010 -Page 28 of 138
6. All Pima County Department of Environmental Quality (PDEQ) requirements must be
achieved and appropriate permits obtained including, but not limited to: Title V Air Permit;
general aquifer protection permit for septic tanks; and one or more right-of-way permits must be
obtained from Pima County for work within the portions of Avra Valley Road located in
unincorporated Pima County.
7. The Developer shall provide financial assurances pursuant to the requirements of the
Arizona Department of Environmental Quality (ADEQ) that include mechanisms for corrective
action, facility closure, and post-closure care.
8. The Developer will be required to process a development plan, landscape plan, native plant
permit, and all associated improvement plans through the Town of Marana.
9. The Developer shall secure all permits required by the Town of Marana including, but not
limited to: floodplain use permit; grading permit; building permits for on-site structures; and,
right-of-way permits for work within the portions of Avra Valley Road located within the town
limits of Marana.
10. The Marana Regional Landfill shall be designed to withstand the 500-year flood event.
11. A traffic impact study must be accepted by the Town of Marana Traffic Engineering
Division prior to approval of the development plan. The developer shall be responsible for the
design and construction of any transportation improvements determined to be necessary by staff
based upon the findings of the study.
12. Prior to the Town's approval of the development plan, the Developer shall submit to the
Town a structural analysis report for the bridge on Avra Valley Road over the east branch of the
Brawley Wash. The Developer shall be responsible for the design and construction of any
improvements to the bridge determined to be necessary by staff based upon the findings of the
report.
13. Prior to the Town's approval of the development plan, the Developer shall submit to the
Town a geotechnical analysis report for the pavement conditions on Avra Valley Road between
I-10 and Trico Road. The Developer shall be responsible for any pavement improvements
determined to be necessary by staff on said segment of Avra Valley Road based upon the
findings of the report.
14. There shall be no access provided to the Rezoning Area from West Silverbell Road.
15. The Rezoning Area shall not be served by or connected to a rail spur.
16. No waste shall be accepted at the Marana Regional Landfill which has, to the knowledge of
the Developer, been transported by rail.
17. Cultural resource clearance is required prior to the issuance of a grading permit.
18. A burrowing owl survey shall be completed by a qualified biologist no more than 30 days
prior to any ground disturbing activities.
19. The Owner of the Rezoning Area shall transfer to Marana, by the appropriate Arizona
Department of Water Resources form, any Irrigation Grandfathered Rights or Type INon-
Irrigation Grandfathered Rights appurtenant to the land in exchange for the Town of Marana as a
designated water provider agreeing to provide an assured water supply and related water service
to the Rezoning Area.
Regular Council Meeting -November 3, 2010 -Page 29 of 138
20. Before a certificate of occupancy is issued for any structures on the Rezoning Area, the
Developer shall have completed or shall provide evidence to the Town's satisfaction that the
Developer has made a diligent effort to complete the process of having the property annexed into
a fire district or otherwise provide for fire protection.
21. All structures proposed to be constructed within the Rezoning Area shall require evaluation
by the appropriate fire district for the inclusion of an automatic fire sprinkler system at the time
of building permit application.
22. The ultimate elevation of the Marana Regional Landfill after closure and capping shall not
exceed an elevation of 2,145 feet above mean sea level (165 feet above existing surface grade).
23. Within sixty (60) days of receiving final entitlements by ADEQ, the Developer shall offer
each of the owners of property containing each of the five (5) domestic water wells registered
within two (2) miles down gradient from the Rezoning Area two (2) quarterly water samples over
a six (6) month period in order to obtain a statistically valid background determination of the
quality of water in each well. The Developer shall provide sampling results to the property
owners or occupants. The wells will be sampled under parameters deemed as standard for
drinking water by ADEQ.
24. The Developer shall keep the Rezoning Area in a neat, clean, and sanitary condition, and
work with the adjacent property owners to manage litter resulting from landfill operations during
the operation life of the Marana Regional Landfill. The Developer shall submit a litter control
plan to the Town of Marana for review and acceptance prior to the opening date of the landfill.
25. The Developer shall immediately begin coordination with the Federal Aviation
Administration (FAA) to ensure that no conditions may result in a status of non-compliance with
respect to applicable grant assurances at the Marana Regional Airport. Federal Form 7460 shall
be filed with the FAA to initiate the coordination process. Evidence of the initiation of this
process must be submitted to the Town of Marana with the first submittal of a development plan.
26. A mitigation plan shall be prepared that demonstrates that the proposed Marana Regional
Landfill will not be a wildlife attractant hazard to the Marana Regional Airport pursuant to the
Code of Federal Regulations (40 CFR 258).
27. During the development review process, the Developer shall submit a plan to the Town that
addresses the use of back-up alarms or warning devices on the commercial vehicles operating at
the Marana Regional Landfill site. The Town shall have the final authority to determine
acceptability of all such devices as well as the allowable hours of use.
28. No approval, permit or authorization by the Town of Marana authorizes violation of any
federal or state law or regulation or relieves the Developer from responsibility to ensure
compliance with all applicable federal and state laws and regulations, including the Endangered
Species Act and the Clean Water Act. Appropriate experts should be retained and appropriate
federal and state agencies should be consulted to determine any action necessary to assure
compliance with applicable laws and regulations.
29. No lot split of any kind is allowed within the Rezoning Area without the written consent of
the Town of Marana.
Commission Recommendation - if applicable:
The Planning Commission held a public hearing on February 24, 2010, and voted to recommend,
by a vote of 3-2 (Commissioners Jeffrey Adragna and Michael Wiles dissenting and Vice Chair
Marcia Jakab and Commissioner Tina Le Page-Wood excused), that the Mayor and Town
Council approve the application for rezoning from RD-180 (Rural Development -minimum lot
Regular Council Meeting -November 3, 2010 -Page 30 of 138
size of 180,000 square feet) to `F' Specific Plan, adopting the Marana Regional Landfill Specific
Plan, with the recommended conditions. The Planning Commission also recommended that the
Mayor and Town Council approve the request for a minor amendment to the General Plan from
Rural Density Residential (RDR) to Master Plan Area (MPA).
Suggested Motion:
I move to adopt Ordinance 2010.11, approving a rezoning creating the Marana Regional Landfill
Specific Plan and approving a minor amendment to the General Plan subject to the staff
recommended conditions.
Regular Council Meeting -November 3, 2010 -Page 31 of 138
MARANA ORDINANCE NO. 2010.11
RELATING TO DEVELOPMENT; APPROVING A REZONING CREATING THE MARANA
REGIONAL LANDFILL SPECIFIC PLAN AND APPROVING A MINOR AMENDMENT TO
THE GENERAL PLAN
WHEREAS H. Kai FAMILY NG1, L.L.C., an Arizona limited liability company (the
"Owner"), owns approximately 591.21 acres of property located one mile north of Avra Valley Road,
one mile east of Trico Road, and a half mile south of Silverbell Road within a portion of Section 1,
Township 12 South, Range 10 East, as described on Exhibit "A" attached to and incorporated in this
Ordinance by this reference (the "Rezoning Area"); and
WHEREAS the Owner and DKL Holdings, Inc., a Delaware corporation, and their successors
in interest to the Rezoning Area are together collectively referred to in this Ordinance as the
"Developer"; and
WHEREAS the Developer seeks approval of a rezoning of the Rezoning Area (this
"Rezoning") for the purpose of developing a municipal solid waste landfill referred to in this
Ordinance as the Marana Regional Landfill; and
WHEREAS this Rezoning requires a minor amendment to the Marana General Plan, which
the Town Council finds to be in the best interests of the Town; and
WHEREAS the Marana Planning Commission held a public hearing on February 24, 2010,
and recommended by a vote of three in favor and two opposed (Commissioners Jeffrey Adragna and
Michael Wiles dissenting and Vice Chair Marcia Jakab and Commissioner Tina Le Page-Wood
absent) that the Town Council approve this rezoning; and
WHEREAS the Town Council heard from representatives of the Developer, staff, and
members of the public at regular Town Council meetings held July 20, August 17, and November 3,
2010; and
WHEREAS the Town Council voted at its November 3, 2010 meeting to approve the
rezoning and its associated minor amendment to the Marana General Plan.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL, OF THE TOWN OF
MARANA, ARIZONA, as follows:
SECTION 1. A minor amendment to the General Plan is hereby approved, changing the
General Plan designation of the Rezoning Area from Rural Density Residential (RDR) to Master
Plan Area (MPA).
SECTION 2. The zoning of the Rezoning Area is hereby changed from `RD-180' (Rural
Development -minimum lot size of 180,000 square feet) to `F' Specific Plan, and creating and
applying the Marana Regional Landfill Specific Plan to the Rezoning Area.
Regulq~~~l~e~~~o ~®Y~r~er 3, 2010 -Page 32 of 138 _ 1 - 10/27/2010 3:40 PM
SECTION 3. This Rezoning is subject to the following conditions, the violation of which
shall be treated in the same manner as a violation of the Town of Marana Land Development Code
(but which shall not cause a reversion of this rezoning Ordinance):
1. Compliance with all provisions of Town codes and ordinances, and policies of the General Plan
current at the time of development,. including but not limited to requirements for public
improvements.
2. The Marana Regional Landfill shall be developed in accordance with all local, state, and federal
regulations and requirements for solid waste disposal, groundwater protection, site drainage,
vector control, and site reclamation and revegetation.
3. The Marana Regional Landfill shall be used only for the final disposal ofnon-hazardous solid
waste iri accordance with federal and Arizona state law and the terms of any governmental
authorizations applicable to the project or the property.
4. All Arizona Department of Environmental Quality (ADEQ) requirements must be achieved and
appropriate permits obtained including, but not limited to: approval of a solid waste facility plan;
aquifer protection permit; 404 permit; financial assurance demonstration; and, Arizona pollutant
discharge system (AZPDES)mul1i-sector general permit with a storm water pollution prevention
plan for construction activities and landfill operations.
5. All Arizona Department of Water Resources (ADWR) requirements must be achieved and
appropriate permits obtained including, but not limited to: groundwater industrial use permit and
drilling permits for monitoring wells.
6. All Pima County Department of Environmental Quality (PDEQ) requirements must be achieved
and appropriate permits obtained including, but not limited to: Title V Air Permit; general
aquifer protection permit for septic tanks; and one or more right-of--way permits must be obtained
from Pima County for work within the portions of Avra Valley Road located in unincorporated
Pima County.
7. The Developer shall provide financial assurances pursuant to the requirements of the Arizona
Department of Environmental Quality (ADEQ) that include mechanisms for corrective action,
facility closure, and post-closure care.
8. The Developer will be required to process a development plan, landscape plan, native plant
permit, and all associated improvement plans through the Town of Marana.
9. The Developer shall secure all permits required by the Town of Marana including, but not
limited to: floodplain use permit; grading permit; building permits for on-site structures; and,
right-of--way permits for work within the portions of Avra Valley Road located within the town
limits of Marana.
10. The Marana Regional Landfill shall be designed to withstand the 500-year flood event.
11. A traffic impact study must be accepted by the Town of Marana Traffic Engineering Division
prior to approval of the development plan. The developer shall be responsible for the design and
construction of any transportation improvements determined to be necessary by staff based upon
the findings of the study.
12. Prior to the Town's approval of the development plan, the Developer shall submit to the Town a
structural analysis report for the bridge on Avra Valley Road over the east branch of the Brawley
Wash. The Developer shall be responsible for the design and construction of any improvements
to the bridge determined to be necessary by staff based upon the findings of the report.
13. Prior to the Town's approval of the development plan, the Developer shall submit to the Town a
geotechnical analysis report for the pavement conditions on Avra Valley Road between I-10 and
Trico Road. The Developer shall be responsible for any pavement improvements determined to
Regulq~~~~l~e~~~g.f~®Y~.'Pper 3, 2010 -Page 33 of 138 _ 2 - 10/27/2010 3:40 PM
be necessary by staff on said segment of Avra Valley Road based upon the findings of the report.
14. There shall be no access provided to the Rezoning Area from West Silverbell Road.
15. The Rezoning Area shall not be served by or connected to a rail spur.
16. No waste shall be accepted at the Marana Regional Landfill which has, to the knowledge of the
Developer, been transported by rail.
17. Cultural resource clearance is required prior to the issuance of a grading permit.
18. A burrowing owl survey shall be completed by a qualified biologist no more than 30 days prior
to any ground disturbing activities.
19. Developer understands and acknowledges that the Town of Marana will not be the designated
water provider and will not provide an assured water supply or water service to the Rezoning
Area unless and until, at a minimum, the then-owner of the Rezoning Area transfers to Marana,
by the appropriate Arizona Department of Water Resources form, any Irrigation Grandfathered
Rights or Type INon-Irrigation Grandfathered Rights appurtenant to the land.
20. Before a certificate of occupancy is issued for any structures on the Rezoning Area, the
Developer shall have completed or shall provide evidence to the Town's satisfaction that the
Developer has made a diligent effort to complete the process of having the property annexed into
a fire district or otherwise provide for fire protection.
21. All structures proposed to be constructed within the Rezoning Area shall require evaluation by
the appropriate fire district for the inclusion of an automatic fire sprinkler system at the time. of
building permit application.
22. The ultimate elevation of the Marana Regional Landfill a$er closure and capping shall not
exceed an elevation of 2,145 feet above mean sea level (165 feet above existing surface grade).
23. Within sixty (60) days of receiving final entitlements by ADEQ, the Developer shall offer each
of the owners of property containing each of the five (5) domestic water wells registered within
two (2) miles down gradient from the Rezoning Area two (2) quarterly water samples over a six
(6) month period in order to obtain a statistically valid background determination of the quality
of water in each well. The Developer shall provide sampling results to the property owners or
occupants. The wells will be sampled under parameters deemed as standard for drinking water by
ADEQ.
24. The Developer shall keep the Rezoning Area in a neat, clean, and sanitary condition, and work
with the adjacent property owners to manage litter resulting from landfill operations during the
operation life of the Marana Regional Landfill. The Developer shall submit a litter control plan
to the Town of Marana for review and acceptance prior to the opening date of the landfill.
25. The Developer shall immediately begin coordination with the Federal Aviation Administration
(FAA) to ensure that no conditions may result in a status of non-compliance with respect to
applicable grant assurances at the Marana Regional Airport. Federal Form 7460 shall be filed
with the FAA to initiate the coordination process. Evidence of the initiation of this process must
be submitted to the Town of Marana with the first submittal of a development plan.
26. A mitigation plan shall be prepared that demonstrates that the proposed Marana Regional
Landfill will not be a wildlife attractant hazard to the Marana Regional Airport pursuant to the
Code of Federal Regulations (40 CFR 258).
27. During the development review process, the Developer shall submit a plan to the Town that
addresses the use ofback-up alarms or warning devices on the commercial vehicles operating at
the Marana Regional Landfill site. The Town shall have the final authority to determine
acceptability of all such devices as well as the allowable hours of use.
28. No approval, permit or authorization by the Town of Marana authorizes violation of any federal
Regulq~~~~lc' di~~~~lo.~@Y~.'I'per 3, 2010 -Page 34 of 138 _ 3 _ 10/27/2010 3:40 PM
or state law or regulation or relieves the Developer from responsibility to ensure compliance with
all applicable federal and state laws and regulations, including the Endangered Species Act and
the Clean Water Act. Appropriate experts should be retained and appropriate federal and state
agencies should be consulted to determine any action necessary to assure compliance with
applicable laws and regulations.
29. No lot split of any kind is allowed within the Rezoning Area without the written consent of the
Town of Marana.
SECTION 4. This Ordinance shall not be effective until the Town files with the county
recorder an instrument (in a form acceptable to the Town Attorney), executed by the Owner and any
other party having any title interest in the Rezoning Area, that waives any potential claims against
the Town under the Arizona Property Rights Protection Act (A.R.S. § 12-1131 et seq., and
specifically A.R.S. § 12-1134) resulting from changes in the land use laws that applyto the Rezoning
Area as a result of the Town's adoption of this Ordinance. If this waiver instrument is not recorded
within 90 calendar days after the motion approving this Ordinance, this Ordinance shall be void and
of no force and effect.
SECTION 5. All ordinances, .resolutions and motions and parts of ordinances, resolutions,
and motions of the Marana Town Council in conflict with the provisions of this Ordinance are
hereby repealed, effective as of the effective date of this Ordinance.
SECTION 6. If any section, subsection, sentence, clause, phrase or portion of this Ordinance
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 TOWN COUNCIL OF THE TOWN OF MARANA,
ARIZONA, this 3rd day of November, 2010.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Regulq~~1~E~~ip1o.1~®Ygr~er 3, 2010 -Page 35 of 138 _ 4 _ 10/27/2010 3:40 PM
CONSENT TO CONDITIONS OF REZONING AND WAIVER
OF CLAIMS FOR POSSIBLE DIMINUTION OF VALUE
RESULTING FROM TOWN OF MARANA ORDINANCE
N0.2010.11
H. KAI FAMILY NGl, L.L.C., an Arizona limited liability company (the "Owner"),
owns the land referred to in this instrtument as the "Property," which is particularly
described in Exhibit "A" attached to Marana Ordinance No. 2010.11 (the "Rezoning
Ordinance") and incorporated by this reference in this instrtument. The Property is the
subject of Town of Marana rezoning case PCZ-09057, filed on behalf of the Owner.
The Owner hereby agrees and consents to all of the conditions imposed by the
Rezoning Ordinance, including all stipulations adopted by the Marana Town Council in
conjunction with the approval of said Ordinance and waives any right to compensation
for diminution in value pursuant to Arizona Revised Statutes § 12-1134 that may now or
in the future exist as a result of the approval of said Ordinance. The Owner also consents
to the recording of this document in the office of the Pima County Recorder, to give
notice of this instrument and its effects to successors in interest of the Property, who shall
be bound by it.
Dated this day of November 2010.
STATE OF ARIZONA )
SS.
County of Pima )
H. KAI FAMILY NGl, L.L.C.,
an Arizona limited liability company
BY:
Herbert Kai, Manager
The foregoing instrument was acknowledged before me on November , 2010,
by Herbert Kai, Manager of H. KAI FAMILY NG1, L.L.C., an Arizona limited liability
company, on behalf of the L.L.C.
My commission expires:
Notary Public
Regular Council Meeting -November 3, 20101\la~~d ~~gQ~t~a~ll.andfill Specific Plan -Prop 207 Waiver
t'c. ~s 5i x r...".su 1~ ~.
All that certain real property situate in the County of Pima, State of Arizona,
described in Docket 13705 at Page 2054 thereof, records of said Pima County,
as Section 1, except Government Lot 4 as shown on the General Land Office
Plat of Township 12 South, Range 10 East, Gila and Salt River Meridian,
officially filed May 26,1924;
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
F" °.: *~-i=-~g at the southeast comer of said Section 1, common with the southeast corner of said parcel described in Docket
13705, Page 2054 (hereinafter referred to as `record parcel'), marked by an aluminum capped rebar, RLS 29873;
Tip;;®rce from said POINT OF BEGINNING, westerly along the south line of said Section 1, common with the south line of
said 'record parcel', S 89° 24' 30" W, 5265.55 feet to a bent General Land Office pipe marked by an aluminum capped rebar,
RLS 26932 at the southwest corner thereof;
Thence leaving said southwest comer, northerly along the west line of the southwest quarter of said Section 1, common the west
line of said `record parcel', N 00° 23' 54" W, 2640.71 feet to the northwest comer thereof (west quarter comer, Section 1), marked
by a General Land Office brass capped pipe;
Thence leaving said northwest corner, northerly along the west line of the southwest quarter of the northwest quarter of said
Section 1, N 00° 31" 26" W, 1319.30 feet to the northwest corner thereof, common with the southwest comer of said Govemment
Lot 4, marked by an aluminum capped rebar, RLS 26932;
Thence leaving said common corner, easterly along the south line of said Lot 4, common with the boundary of said 'record parcel',
N 89° 24' 52" E, 1317.91 feet to the southeast corner thereof, marked by an aluminum capped rebar, RLS 26932;
en ..leaving said southeast corner, northerly along the east line of said Lot 4, common with the boundary of said `record
parcel', N 00° 28' 52" W,1227.78 feet to the northeast corner thereof, marked by an aluminum capped rebar, RLS 26932;
Thence leaving said northeast corner, easterly along the north line of said Section 1, common with the north line of said `record
parcel', N 89° 33" 12" E, 3956.48 feet to the northeast comer thereof, marked by a General Land Office brass capped pipe;
Then .leaving said northeast comer, southerly along the east line of said Section 1, common with the east line of said `record
parcel', S 00° 21' O7" E, 5177.66 feet to the POINT OF BEGINNING of Exhibit A herein described;
Containing 589.885 ACRES of land (more or less)
Subject to and together with all matters of public record
Basis Qf Bearing:
The bearings shown on his description
are based on Geodetic North using the
data provided by the National Geodetic
Survey for stations AF14, Center and
NN86 on NAD 83 datum that produced
a measured scale factor of .99994523.
Page; 1 of 1
Date: July 9, 2010
Project: 4309 HE-3
LAND SURVEYING SERVICES
P.O. Box 12612 -Tucson, AZ 85732
Phone (520) 512-0666
Fax (520) 512-1666
surveys csettlemeyer.tuccoxmaiLcam
Refit}}2r~ fi~g,~~Noyei~~ber3, 2Qf0 - Pa~ge37 ~f~38 ~ ~_,_ _._ ____.__.~.._.._..
~~~
MARANA ~~
PLANNING & ENGINEERING APPLICATION ~~ ~~' t ~®Y
1. TYPE OF APPLICATION (Check One)
^ Preliminary Plat
^ Development Plan
^ Specific Plan Amendment
^ Final Plat
^ SWPP
^ Conditional Use Permit
^ General Plan Amendment
^ Landscape Plan
® Rezone/Specific Plan
^ Significant Land Use Change ^ Minor Land Division ^ Water Plan
^ Improvement Plan specify tvpe in Description of Project box*) ^ Other _
2. GENERAL DATA RE UIRED
Assessor's Parcel 208-24-0010 General Plan Designation Rural Density Residential
Number s) o be confirmed b staf RDR)
Gross Area (Acre/Sq. Ft.) 590 acres Current Zoning RH (Pima County)
(To be confirmed b staff)
Development/Project Name Marana Regional Landfill Proposed Zoning F (Specific Plan)
Project Location South of Silverbell Road, north of Avra Valley Road and just east of Trico Road
Townshi 12S, Ran a 10E, Section 1
Description of Project* Marana Regional Landfill will include landfilling and ancillary land uses that will serve the area's
current and future solid waste dis sal demands.
Property Owner Consolidation Trust
Street Address 2305 W. Ruthrauff Rd
City State Zip Code Phone Number Fax Number E-Mail Address
Tucson AZ 85705
Contact Person Phone Number / E-mail
Herbert Kai & John Kai
Applicant DKL Holdings, Inc.
Street Address 8912 E. Pinnacle Peak Road, PMB #601
City State Zip Code Phone Number Fax Number E-Mail Address
Scottsdale AZ 85255 602-390-6846 480-419-3543 pwslarry@msn.com
Contact Person Phone Number / E-mail
Larry Henk pwslarry@msn.com
Agent/Representative The Planning Center
Street Address
110 S. Church, Ste. 6320
City State Zip Code Phone Number Fax Number E-Mail Address
Tucson AZ 85701 520-623-6146. 520-622-1950 lmorales@azplanningcenter.com
Contact Person Town of Marana Business
Linda Morales License No. 102691
3. AUTHOItIZATIUN OF PR OPERTY OWNER
I, the undersigned, certify that all of the facts set forth in this application are true to the best of my knowledge and that I am either the
owner of the property or that I have been authorized in writi by the owner to file this application and checklist. (If not owner of
record, attach written authorization from the owner.)/
7;
r~
Print Name of A licant/A ent Si nature ate
^Variance
^ Native Plant Permit
^ Native Plant Exception
^ Annexation
11555 W. Civic Center Drive, Bldg. A2^Marana, AZ 85653-7003^Telephone (520) 382-2600^Fax (520) 382-2641
Regular Council Meeting -November 3, 2010 -Page 38 of 138
=~~
~~ Marana Regional Landfill
S ecific Plan and General
p
Plan Amendment
CASE PCZ-09057
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Request 0 3750 75OOft. N
A request by The Planning Center, representing DKL Holdings, Inc., to rezone
approximately 590 acres of land from 'RD-180' (Rural Development -minimum
lot size of 180,000 square feet) to 'F' (Specific Plan), and to amend the General
Plan from Rural Density Residential to Master Plan Area.
Data Disclaimer: The Town of Marana provides this map information 'As Is' at the request of the user with the understanding that is not guaranteed to be accurate,
correct or complete and conclusions drawn from such information are the responsibility of the user. In no event shall The Town of Marana become liable to users of these
r any loss or direct, indirect, special,incidental or consequential damages, including but not limited to time, money or goodwill, arising from the
data, or any other part
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user ~if~ unGRf neetin ' -November 3 2010 - Pa a 39 of 138
File Viewing:
The Specific Plan document and accompanying application materials
for the Marana Regional Landfill (PCZ-09057) are on file and
available for viewing in the Town Clerk's Office between the hours of
8:00 a.m. and 5:00 p.m., Monday through Friday, at the Town of
Marana Municipal Complex, 11555 W. Civic Center Drive, Marana,
AZ 85653.
Regular Council. Meeting -November 3, 2010 -Page 40 of 138
October 25, 2010
Marana Mayor and Town Council
RE: Town Council Communication: PCZ-09057 -Marana Regional Landfill Specific Plan;
Planning Commission recommendation to the Mayor and Town Council.
Dear Mayor and Council members:
This communication is to inform you that the Town of Marana Planning Commission held a public hearing
on February 24, 2010 to consider the following:
PCZ-09057 Marana Regional Landfill Specific Plan
A request by The Planning Center, representing DKL Holdings, Inc. for a recommendation of approval of the
Marana Regional Landfill Specific Plan to the Mayor and Town Council. The request is to rezone
approximately 590 acres of land from `RD-180' (Rural Development -minimum lot size of 180,000 square
feet) to 'F' (Specific Plan) for the purpose of establishing the Marana Regional Landfill Specific Plan, an
industrial master-plan area that will allow for a regional landfill and material recovery operations as well as
other industrial uses.
Accompanying the request for rezoning is a request for minor amendment to the Town of Marana General
Plan. The General Plan currently designates the future land use of the subject property as Rural Density
Residential. The request is to amend this designation to Master Plan Area to accommodate the proposed
specific plan.
The property is generally located approximately one mile north of Avra Valley Road, one mile east of Trico
Road, and one half mile south of Silverbell Road.
The Commission voted as follows:
Motion to approve with conditions recommended by Staff Moved by Commissioner Billy Schisler, Seconded
by Commissioner Gary Pound Roll Call Vote: 3-2 Motion passed (Commissioners Jeffrey Adragna and
Michael Wiles voted nay) (Vice Chair Marcia Jakab and Commissioner Tina Le Page-Wood, excused)
The Commission's action is based upon staffs recommendation, as well as adequate demonstration that
the application meets the standard review criteria for a proposed rezoning as follows:
1. With the acceptance of the recommended conditions the development complies with the
requirements of all agencies. ,
2. With the acceptance of the recommended conditions this proposal is consistent with the purpose
and intent of the Land Development Code and the Town of Marana General Plan.
Regular Council Meeting -November 3, 2010 -Page 41 of 138
October 25, 2010
Page 2 of 2
3. This proposal is consistent with the purpose and intent of the Town of Marana General Plan Master
Planning Area {MPA) land use designation.
4. Based on the requirements and conditions, this proposal does not appear to be detrimental to the
immediate area and to the general health, safety, and welfare of the inhabitants of the area and the
Town of Marana.
The minutes of the Public Hearing have been attached to this report for your convenience.
Cc: Lisa Shafer, Interim Planning Director
Brian D. Varney, Planner II
Terri Byler, Executive Assistant -Development Services
Enc. Planning Commission Minutes, February 24, 2010
Regular Council Meeting -November 3, 2010 -Page 42 of 138
11555 w. CIVIC CENTER DRIVE, BLDG. A2 MARANA, AR-zoNA 85853-7003 TELEPHC3NE: (520) 382-2800 FAx: 382-2841
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1. CALL TO ORDER
Chairman Fogel called the February 24, 2010 Regular Meeting of the Planning
Commission to order at 6:30 p.m.
II./III. PLEDGE OF ALLEGIANCE AND INVOCATION/MOMENT OF SILENCE
Chairman Fogel led the Pledge of Allegiance followed by a moment of silence.
IV. ROLL CALL
Commission:
Norman Fogel Chairman Present
Marcia Jakab Vice Chair Excused
Jeffrey Adragna Commissioner Present
Gary Pound Commissioner Present
Billy Schisler Commissioner Present
Michael Wiles Commissioner Present
Tina Wood Commissioner Excused
Staff:
Kevin Kish General Manager Development Services
Keith Brann Town Engineer
Fernando Prol TrafFc Engineer Division Manager
Cedric Hay Assistant Town Attorney
T VanHook Community Development Director
Brian Varney Planner II
Steve Cheslak Planner I
Steve Vasquez Planner I
Also in attendance were members of the Affordable Housing Commission
V. CALL TO THE PUBLIC
No one came forward.
VI. APPROVAL OF AGENDA
Motion to Approve Moved by Commissioner Billy Schisler, Seconded by
Commissioner Jeffrey Adragna -Motion passed unanimously. (Vice Chair
Marcia Jakab and Commissioner Tina Le Page-Wood, excused)
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VII. ANNOUNCEMENTS
None
VIII. GENERAL ORDER OF BUSINESS
A. Consent Agenda
1. Approval of Minutes
Minutes of the January 27, 2010 Regular Meeting of the Planning
Commission
Motion to Approve Moved by Commissioner Billy Schisler, Seconded by
Commissioner Gary Pound -Motion Passed Unanimously (Vice Chair Marcia
Jakab and Commissioner Tina Le Page-Wood, excused)
B. Public Hearings
1. PCZ-09048 Honea Heights III Specific Plan - A request by the
Community Development Department of the Town to rezone
approximately 37.7 acres of land from "A" (Small Lot) to "F" (Specific Plan)
in order to create the Honea Heights III Specific Plan, a residential master
plan area with a portion of the lots dedicated to affordable housing units.
Steve Cheslak came forward to address the Commission. The Town of Marana
Community Development Department requests approval for a change of zoning on 37.7
acres to develop a planned residential community with lots dedicated to affordable
housing. The site is located east of Sanders Road and approximately '/4 mile south of
Moore Road and north of the Santa Cruz River.
The applicant proposes to change the zoning from "A" (Small Lot) to "F" (Specific Plan)
to create the Honea Heights III Specific Plan. The land was previously owned by Pima
County Flood Control District and was conveyed to the Town after an extension of the
Santa Cruz River Bank Protection.
The Concept Design shows the development of approximately 93 single-family homes
with 50% open space in the project. The housing types may include attached and
detached models with rear loaded garages and front entrances with links to sidewalks
and trails.
The Community Development Department is planned to act as master developer and will
work with building partners to ensure long-term affordability.
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Adoption of this rezoning will also include a minor amendment to the General Plan. The
project will change the area from the General Plan Land Use Designation MDR (Medium
Density Residential) to MPA (Master Plan Area)
Tonight's hearing was properly noticed. The Drachman Institute also facilitated
community meetings and a survey to collect neighborhood input. To date we have
received one email and it was in general support of the project. This project with the
General Plan Amendment is in compliance of all provisions of the Town of Marana Land
Development Code and General Plan. Therefore, Staff recommends approval of PCZ-
09048, Honea Heights III Specific Plan subject to the recommended conditions in the
Staff Report.
Commissioner Schisler stated I have several questions. Buffelgrass is reported in that
area. Is that still there?
T VanHook came forward to respond. The last time we had a survey of the property, an
official survey by an environmental agency, there was buffelgrass habitat noted. Staff
has since been on the property. We have not seen buffelgrass in the area, but another
survey will take place before we continue with the platting.
Commissioner Schisler stated I recommend we get rid of it if there is some there.
The sewer system you plan on doing for that project is way down hill from the existing
sewer lines in Honea Heights. Do you plan to pump that up?
T VanHook answered at this time we don't have full engineering for the wastewater
disposal. Again, complete engineering plans will be drawn up during the platting
process. There are a couple of options under consideration right now, both into the new
segments of the sewer in Honea Heights or possibly over to Sanders Road and we will
have the engineers give us a determination on that.
Commissioner Schisler stated also in your write-up you said there is no detention
required, but on your little plan there are several places that you have marked for
retention. Why?
T VanHook answered what you see before you is a concept plan developed through
Psomas and the Drachman Institute. We have since had a full drainage report done on
the property and that is where the contradiction is. This is just a concept plan that was in
existence prior to the engineer reports being completed.
Commissioner Schisler stated you plan on the drainage going down to the culvert that
is through the levy into the river. What happens when the river gets up to or above the
culvert and it pushes back the other way, which is possible? I have seen that river really
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roar and get up there both in the 70's, 80's and the 90's. I am worried about all of these
people down in that area that could get flooded out. These are viable questions.
Keith Brann responded to the questions. In the event that we actually utilize a cross
pipe through the levy into the river, it would be equipped with a flap gate for those
instances where the river is above the level of the pipe.
Commissioner Schisler asked and if the levy washes out?
Keith Brann responded then we have bigger problems than a flap gate.
Commissioner Schisler stated I have seen that flooded several times and that river can
get pretty wild. It is my main concern with all those people we are putting down there.
know the Town needs affordable housing. I know this is probably a logical place for the
Town, because the land belongs to the Town. I am for affordable housing, but I think
there are too many homes and I am worried about the floodplain.
The linear park connection that you talk about on page 37, it leads to Gladden Farms
Park, which is nice, but you also mentioned commercial. There is no commercial in that
area.
T VanHook responded it is future development of the commercial parcels. It is part of
one of Gladden Farms II Specific Plan areas.
Commissioner Schisler asked did you know that DeAnza Trail is along the river. There
are specified setbacks. Have you taken that into consideration?
T VanHook answered I believe that is noted, I could not tell you the exact page, but we
are taking a buffer of I believe of 150 feet from the base of the bank protection to the first
development of either sidewalk or housing.
Commissioner Schisler stated on page 66 you mention that the area is in the Cortaro.
Marana Irrigation District. Most of the land, even though they have quit farming, they still
have to pay dues or fees to the district. Is this the case here?
T VanHook answered in the preliminary letter from the Cortaro water users; we had
some discussion about fees. That is something I would have to research and give you a
more direct answer.
Commissioner Schisler asked and if the fee does have to be paid would that be the
Town paying.
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T VanHook answered at this point we have all of the fees and other things covered
under the funding that we are drawing from other sources. I would really have to look at
what the dollar amounts are and how the project flushes out. We know that some of the
costs estimated at the time in which we did estimates to apply for the funding will be
lower under the current environment and some other projects will help us leverage other
funding into the project, so I would really need to look at how that budget flushes out.
We certainly would take a look at all of that before we moved forward drawing down the
funds and developing the housing.
Kevin Kish added more clarification. The CMID has the taxing authority, so if they were
levying, it would be through the property tax bills as a line item. It would ultimately be
paid by the purchasers of those homes.
Commissioner Schisler stated on page 71 you talk about storage space for trash cans
and recycle bins to be put outside of the house and hidden. On page 73 it is stated that
the recycle bins would be inside the house. There is a conflict there you need to look at.
T VanHook responded there is actually an answer to that. There needs to be storage
space on the outside of the house for those items when they leave the house. Under the
architectural design of house one of the elements that we are going. to require is that a
designated space for recycled materials be placed in the kitchen, laundry room or
another room within the house to offer the residents ease in recycling.
Commissioner Schisler asked so when that is full you put it out.
T VanHook answered that is correct sir.
Commissioner Schisler stated the trailhead on page 77 at the bottom of White Avenue
is going to be altered to accommodate housing. Which way are you going to alter that?
T VanHook answered when we get down to the platting process, we will work with the
parks department to look at the best way to reconfigure that trailhead and also place the
park amenities. As you will see in the concept plan, there are no specific park amenities
mentioned. We will be working through a community process and the Parks &
Recreation Department to establish it at that time.
Commissioner Schisler stated when this project gets built out, if it does, there is going
to be a lot of traffic through Honea Heights on 3 or 4 of the main streets which are now
pretty quiet, but they won't be, but that is to be expected.
On Page 76 you talk about parking areas to be provided along the roadways without
private garage access. On page 73 you state all residences will have rear entry
garages. Do all the residents have a garage?
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T Van Hook answered all of the residents will have at least a 2 car garage. The parking
will be for guest parking or other vehicles in excess of that. It is very hard to tell on the
concept, but on the long looping road that comes down from White and over towards
Hester, there are designated pull-out parking spaces.
Commissioner Schisler stated I think you could have done better on the concept
design, the size and have a little more color and perhaps bigger.
That is all my questions, but I do have a problem with that being in the low area which
could get flooded, but I also realize that we do need affordable housing.
Commissioner Adragna stated prior to me coming to this board, I was a member of the
Affordable Housing Commission, and so T and I have worked extensively on this plan.
Are there any substantial changes that have happened since I have left that board?
T VanHook answered there are no substantial changes. There have been some minor
tweaks and some updates because we did start writing the plan in 2007, but nothing
substantial.
Commissioner Adragna are all the funding sources still in place and still going to go
forward.
T VanHook answered we have expanded the number of funding sources and the dollar
amounts leveraged into the project.
Chairman Fogel stated you indicate some parking areas, but you don't indicate how
many cars will be able to be parked there. Do you have a notion?
T VanHook answered at this time I do not have a notion. Again, this is just a concept.
When we go to engineering to actually draw the lots and see what the terrain will allow,
we will be bringing a more exact number to you during the platting process.
Commissioner Fogel asked will this come back to us.
Kevin Kish answered this is the entitlement project and will allow the project to go
forward and then the subdivision will come through the process which you would be
reviewing at the preliminary plat stage.
Chairman Fogel stated it doesn't appear that you have a lot of parking space. I
presume there is no street parking with 28 feet of pavement.
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T VanHook responded that is correct. There is only street parking in designated areas.
There will be some parking down near the trailhead that will be designated for use of the
park in the trailhead and parking spread throughout the project for guest parking and
other uses.
Chairman Fogel stated OK, we will see it when it comes back.
Chairman Fogel opened the hearing to the public.
Shawn Eagan came forward to address the Commission. Most of the questions were
answered that I had. The other one would be that I talked to a few of the neighbors and
the concern is that there are basically a lot of houses being put in there. I believe that
the idea was 2.4 per acre. I was wondering if there is an option to make it more towards
two houses per acre with less density and more park or parking areas. Also, how would
it affect the property taxes for the surrounding areas? How much time will it take to
complete the project? How long will there be construction going on?
T VanHook answered we are looking at going to platting before the end of this fiscal
year, by the end of June 30th. Dirt will be moving for infrastructure probably in the
following year and will go to bid for building partners. The project will be built in phases
and at this point until we have completed the platting process and have a RFP for a
building partner we won't know what those phases will be. Certainly, two factors will be
in play. One being that a predominant number of units are at market rate. So whatever
the market will bear, will be built in phases like any other subdivision.
Chairman Fogel asked .for low income housing, what is the standard for housing units
per acre.
T VanHook answered nationally, there is a large variance. Certainly, in our area this is
about normal and actually we have less density than any other affordable housing
project in Pima County at this time.
Shaw Eagan stated it seems that given the .flood insurance and the cost of the housing
and the trouble getting financing, it seems that there is already a glut of homes. They
are having trouble selling homes. It seems like a potential problem even though they are
affordable homes. There were some concerns about that, but the big concern is that
there are too many homes. We were hoping it could be two homes per acre.
Toby Barr came forward to address the Commission. We are right across the street
and will be looking right at all the houses that are supposed to be built. When they build
the house, are they going to build the dirt up as high as our houses are? The reason
why we bought that place was for the view of the beautiful mountains. I think back in
1983 that water rose all the way up to there. It does not matter how much you work a
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river, it has its own mind. Could these people live with 90 some homes right there?
Then if it does flood, how could you sleep at night just knowing that all of those people
are really in danger. That is a bad place. That is in the curve of the river. I don't think it
would be right. It will be taking our view away because you know they are going to build
it up higher than our house.
Liz Barr also addressed the Commission. That is not our only concern. I have lived
there 8 years. We recently married. I have spoken to several of my neighbors and I
have not talked to one that is in pro of this situation.
Chairman Fogel asked are they here tonight.
Liz Barr answered they are not. My question to you is I was going to get a petition
going, but did not want to do that in the fact that government is going to be stronger than
my voice. Without being told that, if I could get "X" amount of signatures on said petition,
would that stand any weight in this decision?
Chairman Fogel answered not for anything that the Planning Commission does tonight,
but this goes to the Town Council
Liz Barr asked so I would not be wasting my time to have that occur?
Toby Barr stated Marana has thousands of acres with nothing on it. Why can't they go
to another area? It would even be safer on the people that are moving into that place,
because you know it is going to flood. Like Mr. Schisler said, he is concerned about it
too, because he has seen that river come up.
Liz Barr added I understand his concerns. My concerns is that I bought my house from
the Town of Marana, given lots of promises about 3 or 4 years back that we were told we
were going to get the sewer system. We sat there and watched our roads be destroyed,
our cars damaged and nothing came of it. Finally, they fixed the roads and we are still
not hooked up to sewer. I don't have big faith in the Town of Marana to be honest with
you even though I have been there for 8 years. Was that the initial step for this plan and
we were dumb enough to think that you were putting in the sewer system for us? I am
confused.
Chairman Fogel responded I can't answer that.
Liz Bar stated I had a brand new car that literally got destroyed over running over dirty
roads all the time. Who can answer for that?
Keith Brann answered the Honea Heights sewer project was for the benefit of the
Honea Heights subdivision. There are stub-outs though that could possibly serve this
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development, but like T said they may also have to go to the Sanders Road project. The
Honea Heights sewer project was under various grants for Honea Heights.
Liz Barr responded it is still yet to be successful. I myself lost child support last year
and prior to me getting married, I almost lost my house. I could not get refinanced. One
of the biggest reasons they gave me is because I am hooked up to sewer and septic and
I could not decide which one. I said it is not my fault; it is the Town of Marana that has
not made that decision for me. They wanted me to get proof of why I am not hooked up
to the sewer and it was a lengthy process where every pointed a bunch of fingers at
everyone else. I suffered. I ultimately did not get that refinance. Also, in addition to
that, when I got my loan from the Town of Marana, my house to this day, T VanHorn
(s/be VanHook) is who I dealt with, the loan was screwed up. The paperwork was
wrong. I was given the wrong address and I have made several follow-up phone calls.
Has the paperwork been worked out yet? Has the loan been fixed yet? To this date I
have no answer and I have lived there 8 years and am very disgusted.
Chairman Fogel responded I am sorry for your troubles. I don't have any answers to
that either.
Liz Barr stated I just thought this would be my opportunity to speak. We don't want to
loose our view, but that is not the biggest picture. We don't want the neighborhood to go
down. Will you get back to me on the answers to my questions?
Chairman Fogel answered you will have to speak to the Town.
Liz Barr asked who do I speak with.
T VanHook responded Mrs. Barr purchased the house eight years ago and it was
before I was here. There was a Scrivener's Error in recording of one of the documents.
We have sent the Scrivener's Error off to be recorded by Pima County. I know that there
are some months of delay in having those recordings coming back to us. We did
process it when it came to our attention. It is a very lengthy time for us to straighten out
the paperwork. It was a misprint of the address on a document.
Chairman Fogel responded so it is being handled.
T VanHook answered, yes sir.
George Learning came forward to address the Commission. Let me apologize,
because my hearing aid broke last week and I have not had a chance to hear anything
that went on up here. Let me give you what I have.
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Let me preface that with letting you know that I have been involved with the economic
aspects of urban planning and development since 1961 when I joined the faculty at the
University of Arizona. From 1977 when the Town was incorporated to 1984 I was the
Town Planning & Zoning Administrator. From 1983 and 1984 I was the Flood damage
mitigation coordinator for the Town of Marana.
With reference to this plan I would like to express my objection to it on several counts:
1) The land is in a low lying area between the early levy and the later levy and is
still subject to flooding. It is not a good place to put housing of any kind.
2) The land was made available by the private owner to the Town of Marana
after the 1983 flood for use as a park. This would negate that gift.
3) The site is underneath the approach flight path to Marana Northwest Regional
Airport and is subject to frequent low over-flights particularly of pilots in
training for take off and landing.
4) The site is adjacent to the Santa Cruz River and should be in the DeAnza Trail
Natural Conservation Area and therefore should not be used for housing.
5) This site is particularly poor because of its location and situation for low cost
affordable housing or high density housing of any kind. It is not within walking
distance or likewise readily accessible to schools, health care facilities, public
recreational facilities or stores. All three of north Marana's current affordable
or low cost housing areas are. I was involved with the development of two of
those. The Don Frew Apartments on Grier and what was originally the Valley
of the Sun Mobile Home Park on Sandario Road.
6) The subdivision plat in my opinion is not a legitimate plat, but is more of a
cartoon with pretty pictures of trees. It shows no ready access ingress or
egress to the housing supposedly depicted there. It seems to be on a scale
quite different from that of the adjoining areas of Honea Heights. I seriously
question the competence of the individual who drew that. I realize that may
be insulting. I realize also that it is very easy to criticize work that is done by
others. As a planning administrator I got a lot of that.
So let me offer a few positive points.
1) Use that railroad that you have at the Heritage Park, extend it and create a
replica of the EI Paso Southwest Railroad from the early 1900's. Donate that
high area that has been filled in on the southwest corner of Steele Drive and
Sandy Road to Habitat for Humanity and let them build a .couple of houses
that would be affordable housing and turn the rest of it into a park.
2) Combine both of alternatives and let everybody win except possibly the
developer who has Pima County's ear and wants get some free land to build a
house on.
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Chairman Fogel closed the hearing to the public.
Commissioner Pound stated the chain of title that he just spoke about because it is
entirely different from the proposal. Was it donated by the County to the Town?
T VanHook answered the property passed from Pima County to the Town of Marana
through a land swap. When the flood protection was put into place, it pulled these three
parcels out of the floodplain. Pima County Flood Control then did not have authority to
hold the property because it was no longer in a flood zone category that they hold for
their. uses. The Town of Marana owned property that was in the floodway and a parcel
per parcel swap took place then. Pima County is very aware of this project and has
written several letters to that affect on behalf of this property to receive federal funding.
Pima County CDBG dollars will be paying for the platting process and engineering. The
Pima County Board of Supervisors has approved additional affordable housing funding
through the bonds and home and other funding for use on this project. That is the title
change of the property and the previous properly owner, which is Pima County Flood
Control or Pima County Board of Supervisors acting as the body on behalf of the Flood
Control District has approved the project.
Chairman Fogel asked where does this fall in the new FEMA Flood Map?
T VanHook responded I will actually defer to Mr. Brann for this question.
Keith Brann stated after the levy was constructed by the Pima County Flood Control
District, the property was removed from the flood plain. The new FEMA draft maps that
we receive in 2007, was going to show pretty much everything in northwest Marana in a
floodplain. After we performed our study, it revalidated some of the levy-like structures
such as the railroad and I-10 and as of this point the FEMA maps that will be coming out
in 2010 or early 2011 show this property in its current status as not being in a floodplain.
Motion to Approve item PCZ-09048 Honea Heights III Specific Plan, Moved by
Commissioner Michael Wiles, Seconded by Commissioner Jeffrey Adragna
Roll Call Vote: 4-1 Motion passed (Commissioner Billy Schisler voted nay) (Vice
Chair Marcia Jakab and Commissioner Tina Le Page-Wood, excused)
2. PCZ-09057 Marana Regional Landfill Specific Plan - A request by The
Planning Center, representing DKL Holdings, Inc., to rezone approximately
590 acres of land from `RD-180' (Rural Development -minimum lot size of
180,000 square feet) to `F' (Specific Plan) for the purpose of establishing
the Marana Regional Landfill Specific Plan, an industrial master-plan area
that will allow for a regional landfill and material recovery operations as
well as other industrial uses.
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Brian Varney came forward to address the Commission. The case before you tonight is
a request by the Planning Center representing DKL Holdings to rezone approximately
590 acres of land from RD-180 (Rural Development) to "F" (Specific Plan) in order to
establish the Marana Regional Landfill Specific Plan.
The site is currently located within the jurisdiction of Pima County, however, the
applicant is in the process of annexing into the Town of Marana, which will not only
include the rezone area on the map, but also an additional 600 acres to the south and
the southeast.
With the annexation, the zoning will be translated from the current Pima County Zoning
RH (Rural Homestead) to the Town's RD-180. The applicant is requesting that the RD-
180 be rezoned to Specific Plan. The rezoning area is within the Town's planning area
as defined in the General Plan so as a result the Land Use Designation within the
General Plan will need to be amended as well. Currently it is Rural Residential and will
be amended to Master Planning Area which accommodates the Specific Plan.
The site plan proposes a solid waste landfill as well as various material recoveries,
recycling facilities and composting operations. Access is proposed to be provided to the
site by and existing 80 foot wide access and utility easement. It extends northward from
Avra Valley Road up into the southeast corner of the rezoning area.
Should the property be successfully annexed into the Town and the rezoning be
approved by the Planning Commission and ultimately the Town Council, the Specific
Plan will be implemented through a review and approval of a development plan,
landscape plan, native plant permit, improvement plans as well as all the required state
and federal permitting that goes into the approval and development of the landfill.
The applicant's consultants did hold a neighborhood meeting on February 9th of this year
and responded to neighborhood concerns. As of this afternoon, Staff has received a
total of 40 items of correspondence in support of the landfill application. We have
received 14 items of correspondence in opposition.
Staff does find that the proposal meets the review criteria as is evidenced in the Staff
Report and does recommend approval subject to the conditions defined within the
report. The applicant is here tonight and is prepared to give a very detailed presentation
of the project.
Chairman Fogel stated I have one thing to add. I got a call this afternoon from Ora Mae
Harn and she wanted to express her support even though the project is in her back yard.
Read that into the record.
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Michael Racy came forward to address the Commission. I am here on behalf of the
applicant DKL Holdings. I have a number of others with me. Linda Morales from The
Planning Center who will be helping throughout the presentation. Mr. Jack Neubeck of
The Planning Center, Mr. Garth Bowers the engineer for this site with Cornerstone
Engineering (who has years of experience in municipal solid waste landfill design and
engineering), Suzanne Grace-Poor from Southwest Appraisal Service to discuss the
issue of values which came up in the neighborhood meeting and also Mr. Marcus
Esparza with the TrafFc Engineering firm that has done work on the project.
As Staff has outlined, the request is to rezone to Specific Plan 590 acres fora 430 acre
municipal .solid waste facility. The solid waste facility as you can see by the picture is
located in the center and the scale of many of these pictures are deceptive because we
are talking about some large areas. There is a minimum 200 foot buffer around the
entire site and on the northeastern comer there is an area that the east branch of the
Brawley Wash crosses and the buffer there is closer to 800 to 1,000 feet and there is
riparian restoration that I will come back to and discuss in more detail later in the
presentation.
Why are we here tonight talking about a municipal solid waste facility? Pima County has
been the municipal solid waste provider for this region of southern Arizona for many
years. That service has been provided by landfills in Sahaurita and much closer to us on
Tangerine Road. The Tangerine Road facility was originally started in the early 80s and
it is ironic how these projects come full circle. I was involved back in 1990 and 91 in
opposing a landfill site on the Tortolita Fan with a host of other folks in this community
including Mr. Herb Kai. Mr. Kai owns this site. The difference is at that point in time
Tangerine was half a dozen years old. We were coming out of the S&L crisis of the late
80's, growth was slow and the life of that landfill has turned out to be nearly 30 years and
there was a lot of life left in Tangerine.
The world also changed in other ways. The regulations in place for municipal solid
waste in 1991 were regulations that date back to the mid 1960s. In 1994 the entire
regulatory arena for municipal solid waste was updated. The kind of facility that we are
talking about today is very different from the kind of facilities that were developed in the
past. That is another theme that I am going to return to a few times tonight.
By way of example, the first portion of Tangerine is completely unlined. The next portion
has 30 mil PVC and no clay liner. Another phase of it has 30 mil HDP, a more durable
material, also no clay liner. Only the last phase of Tangerine has an essentially modern
double layer liner system. That is the history of landfills in other parts of the community,
Los Reales for example, which is a larger facility, larger than this, operated by the City of
Tucson over near Davis-Monthan Air Force Base and Tucson International Airport.
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Today, 2010, Tangerine is at the end of its life. Sahaurita doesn't have much life yet.
We don't know exactly what the life remaining of Tangerine is and the time when the
County will cap it will really be dependent, on financial resources to be able to do that.
They can slow the waste stream into that facility. A year ago it was closing January of
this year and a few weeks ago a memo came out that it is going to be open in 2020. If
you go back and look over the life, you will find that pattern has been repeated back and
forth, but we do know the physical capacity of Tangerine is at its end. There isn't going
to be any municipal solid waste facility in this region of town.
What other options are there. There are transfer stations. Transfer station isn't a bad
short term opportunity. Less than a year ago this Council Chamber was filled with
people incensed and concerned about the announcement by Pima County of the closure
of Tangerine. People thought about a transfer station, but it is a very expensive way to
haul trash. You haul it in and you haul it back out. You dramatically increase the cost of
municipal solid waste service. You get some of the negative and virtually none of the
benefits. Good short term, but not a good long term.
You may well hear tonight about a facility that a competing developer rezoned last year
in Pinal County. It is a 25 mile round trip from Tangerine Road to that facility. It is not
practical for northern Pima County. I won't spend more time on that facility at this point,
but it has other significant financial challenges and mayor may not ever become a reality
because of those challenges. It is too far out of town to provide an economical solution
for northern Pima County.
Why this site? The president of DKL, Mr. Larry Hank who is with us tonight, has been in
the municipal solid waste field for over 25 years. He went from driving trucks to
maintaining trucks, to ultimately being the president of Allied Waste and responsible for
the management and operation of over 150 landfills around the country. Mr. Hank still
owns companies that are waste haulers in Tucson, Phoenix, Nogales and the Prescott
Valley. The other principals in DKL have similar levels of experience and. background
with municipal solid waste. Upon knowing that the end of Tangerine's life was coming
they started looking for sites in northern Pima County that were privately owned. Sites
that were on a defined truck route, sites that were near other industrial areas, and sites
that were well buffered from other uses. This site meets all of those criteria and is being
proposed at time there truly is a need for a new municipal solid waste facility in northern
Pima County. All of those things distinguishes it from proposals that were made 20
years ago.
As Staff has mentioned, this site is off Avra Valley Road. With the current Avra Valley
Corridor you get off at Silverbell and I-10 and that would be the haul route as well. There
is a large power substation on the east side of the road. You come down and there are
the Cal Portland gravel pit, the Cal Portland Cement Plant, material yards on both sides
of the road. As you move on down Avra Valley there is the conveyor belts and the haul
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road back to the cement plant. Continuing on down you have Happy Acres, which is a
residential enclave and we have been chatting with folks there. They are interested in
some litter control, noise mitigation and other things. They have participated in our
neighborhood meeting and I have also met with them separately. We will have another
meeting with them and discuss some specific proposals that DKL can do, but also some
things that we can do coordinating with the Town. You also have the very large gravel
operation that is immediately on the other side of them, Vulcan Materials. Continuing on
down you have the cement mine Twin Peaks area. There. used to be two peaks there,
now there is a single peak and tailing piles. About our facility, it is tall, but not nearly as
tall or massive as this view. Continuing on down you get to the CAP Canal and the
Marana Regional Airport. The Marana Regional Airport is essentially an industrial use.
There is a new access road on the east side and planning under way for an additional jet
terminal and industrial uses on the east side. On the west side of the airport there are
plans for jet hangers and then through the fence and outside the fence industrial uses as
well.
The Silverbell Corridor; this project does not have access from Silverbell. The Silverbell
West neighborhood is the closest neighborhood to the project. If you turn off of Avra
Valley Road you come up Sanders Road then onto Silverbell Road and you go by the
Marana Correctional Facility with prison uses that are classified in industrial use. Down
at the end of Silverbell and Trico, you have the old Gin site, a major cell tower, a power
substation and also in the area you have some FM radio towers that are very tall. That
is relevant to an issue that we have heard brought up about obstruction heights relative
to the airport.
Moving down Silverbell Road the Silverbell West neighborhood is approximately 3,000
feet from the ultimate design of the facility. These are the properties fronting on
Silverbell Road. (Referring to pictures taken from driving by)
Benefits of a municipal solid waste facility; new modem waste facilities are a hub for
commercial and industrial development. It is a hub for new green industries, for
recycling and reuse activities. Glendale has recently had headlines for the electricity
generation from their municipal solid waste facility. I will have pictures of that in just a
moment. It is also a revenue stream for the Town in difficult economic times. In the
development agreement there will be hundreds of thousands of dollars a year provided
to the Town and a couple hundred thousand dollars a year provided to the Marana
Unified School District. This is the only project that we know of that has created a
specific carve out for a school district. It will provide new opportunities, new jobs,
revenue and lastly and in many ways most importantly, an opportunity to try to reduce
illegal and wildcat dumping. We are going to hear a lot about environmental damage.
do a lot of work with the State Legislature and have done work up there for about 25
years. I don't think a year has gone by that there has not been a bill to grant more
authority for more money to deal with wildcat dumping. EPA study after study refers to it
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as one of the greatest environmental risks we have got. They choke our washes,
creates flooding, breeds vectors, mosquitoes and flies. A landfill 25 miles roundtrip out
of town isn't going to solve that problem for a region of town that already has a lot of
wildcat subdivisions. Subdivisions that were developed without full access, that is a little
further from this project, but drive by this area, areas that may not have regular trash
hauling if there is not a regulated properly designed nearby facility, wildcat dumping with
the closure of Tangerine will become an enormous environmental problem throughout
this region. The Pima County Department of Environmental Quality site talks about it.
From pictures taken in 5 minutes driving down Trico Road it showed 3 mattresses, an
easy chair, more beer bottles than we could take pictures of, more bed sheets than I
could take pictures of and numerous old tires which provide perfect mosquito breeding
habitats because the water gets in and stays to cause mosquito problems.
Let me describe the process for a municipal solid waste land fill, because it is not like
anything the Planning Commission deals with. You are here tonight dealing with the
Town land use choice. You are not here tonight and neither is the Town Council
approving a municipal solid waste facility. That is a year long million plus dollar technical
exercise that involves Pima County, Town of Marana, Arizona Department of
Environmental Quality, United States Environmental Protection Agency, FAA, and US
Army Corps of Engineers. All of that process follows this process. There are many
folks that would like us to do that process first. That is not how the procedure works.
That is not how the Federal agencies work. In fact, there are Federal agencies that are
currently frustrated by so many calls too early in the process before their regulatory
participation is normally engaged. We have been reviewing the site since last year. We
have done a significant number of engineering studies on wells, hydrology,
transportation, archaeology and all the routine requirements. We have gone above and
beyond those requirements knowing that a controversial issue like a landfill stirs strong
emotions. We have worked closely with the Town of Marana, but we have also worked
closely with Pima County. Early in the process we communicated with Pima County and
told them we were annexing into Marana, but the County will continue to have certain
jurisdiction on flooding and Avra Valley Road is a shared road. We committed that we
would send all reports on all those issues directly to the County as well as to the Town.
Normally, that would all funnel through the Town, to the County and then back to the
Town. We are on a duel track and have involved both of those from the beginning of the
process and will continue to work that way along the process. We have gotten additional
feedback from them. They asked us to do an even more detailed traffic study, not
because the traffic volume is heavy, in fact, the traffic volume from this is lighter than
almost any other use you could come up with. There is truck traffic associated with it.
There is already truck traffic on Avra Valley Road and already deficiencies at the Avra
Valley interchange, so we were asked to evaluate those and have done that and
submitted it as well. It has been a very thorough process.
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Another component is there have been a number of concerns about water quality.
Those are fair concerns to bring up. The EPA and the Arizona Department of
Environmental Quality are the regulatory entities that have to permit and have to
approve this project before a single thing can happen on it. There have been very
extensive well studies done. There will continue to be extensive well studies.
Additionally, the development agreement for the project provides, if owner's wish, it is all
at their option, in a full mile radius around the site there are approximately 7 domestic
wells, that we will take baseline tests before the project ever gets started and then
annual tests every year thereafter for the entire life of the project.
Questions have been brought up about proximity to some of the City of Tucson recharge
facilities. Those recharge facilities are located many miles south of this and a very large
recharge and extraction system CAPS is owned by the City of Tucson. We have talked
with engineers in Tucson Water and they have indicated to us that as long as you follow
the entire regulatory permitting process they are comfortable with those. Those are also
up gradient, will be done with much care. There are wells down gradient as well, small
domestic wells just as entitled to protection. If folks want us to sample a little further
down gradient, we will do that. The point is things aren't going to migrate 10 miles up
gradient in the opposite direction.
The first submittal was in early December. The annexation hearing was heard in early
January with extensive news coverage was provided and a full hearing and discussion of
the landfill proposal. We then scheduled a neighborhood meeting. The requirements for
the neighborhood meeting on this project would have been a 300 foot radius. We would
have notified State Land, the City of Tucson, John Kai and maybe three other people.
That was ridiculous. We looked at the map and we took our notification area about a
mile and'/2 to the north up to the Santa Cruz River. We went west 1,000 feet past Trico
Road. We went 1,000 feet south of Avra Valley Road and we went back east all the way
to I-10 1,000 feet north including 100% Happy Acres and Silverbell West. Happy Acres
is many miles down near the Vulcan Materials, but they have noise and truck traffic
legitimate concems. We have met with them and will continue to meet with those folks.
Staff mentioned it, but I want to reiterate that the site is about a mile and 'h north of Avra
Valley Road so it is not like the Tangerine Landfill. The Tangerine Landfill you drive right
next to it on Tangerine. This is well set back and is a mile off of Trico Road and a mile
and'/2 off Avra Valley Road and 3,000 feet south of Silverbell Road. What you can't see
on this is that there is a new road that comes into it off of Avra Valley Road. There will
be new right hand turn lanes entirely at the developer's expense. All of this is at the
developer's expense and at the developer's risk. If we move forward and we cannot get
the permitting and ADEQ thinks that we can't meet the requirement that we are a half a
mile away from 25,000 cfm, then we can't get a permit. That issue was brought up by
the County and others. We have done a lot of work and we are very confident we don't
have any problems there, but you don't have to trust us. You should trust your own staff.
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Pima County, Marana, ADEQ, and The Corp of Engineers all have to approve that.
There is a new fully paved 80 foot wide easement paved roadway that comes in, private
roadway, but built for the truck trafFc. You will come into that southeast corner, there will
be the scales, the recycling, the reuse facilities and there is about 25 acres in that area.
There is well over 100 acres of buffer all the way around the project and even more
riparian restoration up in the northeastern corner. There are different cells within the
landfill design. It starts in the southwestern corner. The average depth of the facility will
be approximately 40 feet. There are areas that are deeper and there are areas that are
shallower. The regulatory limit on the height is 200 feet. Engineering is still taking place
for that, but it could not go over that height. The life of the facility is in the 50 to 70 year
range, but that all depends on growth rates, trash generation and changes in recycling
behavior that I think we are going to see a lot of over the next many years. The site
zigzags back first to the east and then up. So it's better than 30 years down the road
before you are into the middle of the site. At that point you are still over 3,000 feet from
the Silverbell West neighborhood.
There are a couple of other things that are unique to a private facility. When the County
has a facility like Tangerine, there is no requirement that they have a bond in place to
cap and close that facility. Right now times are tough. The County may well want to
extend the life of that facility to avoid the very substantial costs of capping that facility. A
private facility can't do that. We have a bond that has to be filed on day one with the
State and that bond increases and is reevaluated every single year so that any point in
the project, when it reaches the end of its life or there is an insolvency or any other
problem, that facility can be fully capped, closed and maintained for years and years
after that life. Additionally, and not required, in the development agreement for this
project is an environmental insurance policy for any third party that is impacted by any
well contamination or anything else, a $20 million dollar insurance policy that will be in
place for the entire life of the facility. It is $10 million per occurrence, $20 million policy.
Another advance of this facility of what has been done in the past and over what has
been done at Tangerine, this facility has active methane collection which does a few
different things: 1) It prevents any offsite gas escape; 2) Most of the odor, virtually all of
the odor if you are getting one from a landfill is from that gas escaping; 3) Overtime, not
in the first few years, but later on it produces a lot of energy. The methane production
out of Los Reales goes into the TEP station down there. It is enough energy to power
4,000 homes. It is a major benefit.
In regards to the proximity to the airport, there has been lots of discussion about this.
There are two documents that are called aviation circulars. They are Federal Aviation
Administration Guidelines for airports. They talk about thousands of things. There are
two that relate to landfills. One of them is a guideline on items that attract wildlife and
birds. That regulation from an Airport that has jet turbine aircraft recommends 10,000
feet away from the end of any runway. We are 14,500 feet away from the runway. We
are completely outside of that area. There is a second regulation and it is a regulation
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that has been widely misinterpreted and an incorrect map was sent by the competing
developer to the Aircraft Owners and Pilots Association indicating the location of the
landfill was the entire annexation area and stating that it violated this six mile limit. The
six mile regulation in the Aviation Circular is for a general aviation airport receiving
federal grant money with scheduled air service and aircraft with fewer than 60 seats.
There is no schedule air service at Marana and no scheduled air service at Pinal. The
regulation doesn't look backwards. It doesn't say that if you put a landfill here, you can't
ever get scheduled air service. It doesn't do that at all. It doesn't say if you put a landfill
within six miles you can't get federal grants any longer. It has been confirmed by the
Town and by me. Ironically, the AOPA sent the memo and the map to me before they
ever knew I was working on the project. For about the last 15 years at the State
Legislature I have been involved in more airport preservation legislation than probably
anyone else in the state. I represent the Arizona Airports Association in Tucson
International Airport. I have a lot of background in this area. You don't need to trust any
of that or Town Staff. Part of the permitting requirement is that we have a notification
and a consultation with the FAA and they will determine all of that.
Pinal Airpark is really a storage facility. The .entire facility is owned and operated by
Evergreen Aviation. It is where airplanes go to die. It is not where people go to board
scheduled air service. There is an army helicopter facility that is separate from the
airport by another mile and '/2 on the north end. Again, there is no .impact on any of
those uses. To highlight that, Linda maybe you could bring up the Chandler Municipal
Airport and the Glendale Airport. I think it is illustrative on a lot of what you may hear
tonight, both with respect to residential communities in close proximity to landfills, but
also in Arizona. Landfills are regularly sited near airports because they are very
compatible industrial land uses. We are not on the Gulf coast or the Atlantic coast,
Great Lakes, or Pacific seaboard. We do not have seagulls in big numbers.
Occasionally, they get blown in by the storms. We do not have geese. We have met
with Scott Richardson, biologist for the US Fish and Wildlife Service; he did not have any
concerns about bird activity being a significant problem. He said in Arizona you will get
ravens, raptors, hawks, red tails and Harris hawks. They are attracted by all the
agricultural uses out there. Mice and rodents or ravens, if they become a problem, there
is well established easy mitigation.. It has not been a problem at Tangerine. Tangerine
is located closer and under all four traffic patterns for the Marana Regional Airport. This
is further away and off the traffic pattern site of the airport. It provides much greater
protection.
Things like the recharge basins are discussed in these aviation circulars. I always
thought they were going to be a big problem at Marana. I am a pilot and fly out of airport
many times a week. It hasn't been nearly the problem we thought it was going to be.
You can see the Chandler Landfill and transfer station and the municipal airport at the
top of the picture (used overhead to explain location). That is the kind of airport we are
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growing towards. It has residential development all around the Chandler Landfill. Less
than '/2 mile away is Mr. Hank's house. We had lots of questions about, `would you like
to live within'/2 a mile'; well Mr. Hank is within a'/2 mile. It is interesting to note Gladden
Farms is within '/2 a mile. It is closer to Tangerine than this facility is to Silverbell West.
Where we are standing right now is the same distance to Tangerine that Avra Vista, a
newer subdivision, further past us on Avra Valley Road is from this proposed facility.
Again, this facility is a mile off the road. The distance from this facility to any residential
uses is greater than Los Reales, Chandler, Glendale, and many others. Here are
pictures of some of the development immediately around the Chandler Landfill.
Glendale Municipal Airport had a major press release last week talking about the new
energy production out of that landfill. There is a residential subdivision right next door to
it. If you look a mile to the east Cabela's, University of Phoenix stadium, Jobbing.com, it
has not really harmed the values or economic development. It is another airport that
Marana would love to become.
Los Reales, in Tucson, is city owned. The picture is a little far back, but it is to give you
some sense of scale. You have the Tucson International Airport, Davis-Monthan Air
Force Base and then residential subdivisions all right next to it. In just a minute I will give
you a break from my voice and have Suzanne talk to you about values. In fact I will
invite Suzanne up now to touch on that subject and then I will come back and talk about
a few other operational issues and concerns that were brought up in the neighborhood
meeting and I will wrap up my comments.
(Michael Racy handed copy of the email and map to the Commission that was sent to
the AOPA.) I discussed it at length with the AOPA. I worked with Mr. Dunn and the
National Business Aviation Aircraft Association and others, all of which are comfortable
with the proximity to the airport.
Your intuition on what things affect value may. not always be correct, so with that here is
Suzanne Poor of Southwest Appraisals.
Suzanne Grace-Poor came forward to address the Commission. I am a certified real
estate appraiser with certification from the State of Arizona. As a result of the
neighborhood meeting regarding the landfill project, I have been asked to provide an
opinion of value as to whether or not residential values in proximity to a landfill are
adversely impacted.
This assignment is intended to address only values in the surrounding area of a landfill.
Many questions were brought up at the neighborhood meeting involving quality of
groundwater, suitability of the site, access, circulation, and many issues, however, my
assignment was solely to address whether or not property values in the area
surrounding a landfill are adversely impacted.
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I think it is important to note that in estimating any potential loss in value on surrounding
properties due to development of a proposed landfill, I have used market value as the
criteria. But market value is not determined by what an individual property owner
perceives the value of his or her property to be for his particular purposes, rather, market
value is the highest price in terms of money, which any hypothetical, prudent and
knowledgeable buyer and seller will accept and is willing to pay for the property in a
competitive and open market. It is important to note that at any given time a property
owner is likely to object to such things as overhead transmission lines, underground gas
pipes, roadways, street widening; all of those issues. The property values and whether
they go up or down are determined by what a buyer and seller agree to pay on the open
market.
With that in mind, the scope of my assignment involved looking at various subdivisions
surrounding landfills. I should note that some of the concerns. by property owners are
`well it is different when a subdivision comes into an area where there is an existing
landfill versus when a landfill comes into a subdivision that already existing'. I didn't
have the opportunity to look at values other than Silverbell West where they are located
near this development. So I did look at Silverbell West at sales and listings in that area.
I went to Gladden Farms which is within close proximity of the Tangerine Landfill. I also
went to Rancho Valencia which is adjacent north of the Los Reales Landfill. Also, after
looking at market data, I also interviewed several real estate agents who are listing
agents or selling agents of properties that sold or were listed within proximity of a landfill
and those that are not within visual sight of a landfill.
Starting with Gladden Farms I looked at sales of properties and listings of properties that
had a visual sight of the Tangerine Landfill. Then I compared those sales and listings
with properties in Gladden Farms that were more distant from the landfill and had no
visual sight of the landfill. I did the same thing at Los Reales. There is a street called
Desert Straw that is along the whole south boundary of Rancho Valencia. It is within
sight of the Los Reales Landfill and it is also within sight of an industrial park in the area.
So it has heavy industrial uses and you will see that above the Los Reales Landfill. I am
told also that this map came from GIS Pima County Mapping. The blue area is identified
as Los Reales Landfill, however, the area directly northeast of the blue is now also now
being used as the landfill. It is within 1,800 feet of the homes along the south boundary
of Rancho Valencia.
I also reviewed the specific plan that has been filed for the Marana Regional Landfill and
had to make an assumption for my value opinion that the development. of the landfill will
comply no less than the specific plan states, because it is not an existing landfill. I made
the assumption that all of the regulatory controls and all of the approvals will be in
compliance and the development will follow those regulations. I interviewed multiple real
estate agents including George Deacon and Scott Keiser who had listings in sales in
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Silverbell Ranch. In Gladden Farms I interviewed Kurt Stinson and at Rancho Valencia I
interviewed both of the on-site sales representatives. They are beginning sales again in
Rancho Valencia along Desert Straw. I asked about lot premiums. There are lot
premiums on the lots that are on Desert Straw and that have actual site visibility of the
Los Reales Landfill. The lot premiums for those lots are $1,000. In comparison, lots on
interior streets range from $2,000 to $4,000. In interviewing Ms. Stone, the on-site sales
representative, she told me that when they take people out to look at the new lots on
Desert Straw, she has received no negative feedback about the proximity of the landfill.
In fact, she said that the feeling is that many people would prefer to have the vegetated
landfill to look at rather than a neighbor from their second floor bedroom looking down
into their backyard. Another agent said some people are going to say I would rather not
be there; I am going to choose another home site. But, the values of these properties, in
fact, one of the agent remarks in the listing said that `this property backs up to
undeveloped land has a significant view amenity'. So, it was a positive factor that this lot
was located where it was and it was marketed as such. In doing an analysis of sales
and listings with proximity views of a landfill site compared to interior sites, it was
apparent that there was negligible if any difference in the sale prices or list prices of
homes.
In conclusion, the value opinion that I arrived at was that the proximity to a landfill, given
the assumption that the landfill conforms will all of the rules and regulations it is
supposed to and is properly screened the way it is intended, there will be no adverse
impact on property values.
Michael Racy came forward. Our largest neighbor right next store is the Arizona State
Land Department. I think there may be representatives here tonight. They have
concerns. We have got a meeting scheduled with them on March 4th. We have been in
contact with them. They are the owners of the vacant land that rings most of the
property. (Michael pointed out the east and west branches of the Braw/ey wash) It
creates very significant site constraints on what can be done with that State Land. On
the east it starts getting closer to the airport. There are certainly development
opportunities along Trico Road. In portions of land to the west it is going to be a little bit
of a challenge along Silverbell Road. I think as we have seen throughout the State of
Arizona and throughout this community there has been, in fact a benefit to those areas
in commercial and industrial opportunities and those are only going to improve in the
future. I don't think you need to go any further than I-10 and Tangerine. The economy
has slowed things down. The Westcor project, the Mandarina project, the Mehl
commercial land and Gladden I I are all right next door to the Tangerine facility.
I talked a little earlier about the height. It is well set back and well away and in an area
that it doesn't significantly impact views, but it is tall. It is scary to talk about something
200 feet tall. It is developed in lifts. It's not like the tailing piles. It doesn't have very
steep slopes, a small shelf and a very steep slope. Modern landfill design varies the
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faces, varies the slopes, and sculptures the ground giving it a more organic look. It's not
going to look like the mountains. I am not pretending that to anyone, but it doesn't look
like the tailing piles. (Michael showed some pictures of views) These are views from all
four view areas, Trico north and south, Avra Valley Road and Silverbell Road. Each one
was taken from those respective roadways. These are two scale photo realistic
computer renderings ten years in with 10% build out. You can't see anything. There are
berms on the south and west side of the project and we are not over the top of the
berms. It will be many, many years more before we cross it. At build out, 50 to 70
years, the view will change. From Silverbell Road you will have the most significant view.
You will not be able to see the sculpting or the contouring. You are simply too far away.
From northwest Trico Road, because the land falls away you will have very little.
Southwest Trico you will definitely have more of a view. Similarly from Avra Valley
Road, you will be able to see it.
There have been a lot of concerns about dust. Landfills are highly regulated and
managed. In a modern landfill you have a very small active area where you dump. It is
immediately covered and other areas have dust palliatives on them and are not
disturbed. This site will create less dust than the agricultural uses in the area right now.
Smell, because of modern Qperation practices and because we have very substantial
on-site cover, you cover very quickly, there is no off-site smell generated by the
dumping. If you drive into Tangerine which isn't especially well managed and you will
smell it. They are slow to cover and are having to purchase cover. They don't have
enough onsite cover, with this no off-site.
Gas we talked about earlier, it has an active gas collection system.
Less noise is created by this outside the property boundaries than the existing
agricultural uses and certainly less noise than the existing airport that is 2.5 miles away.
There is a lot of concern about health issues and neighborhood issues. Those are very
sensitive issues for folks and I understand that. Every study that has been brought up
and been referenced are hazardous waste landfill, toxic waste landfills and liquid waste
landfills. Tangerine for 9 years accepted liquid waste. It was accepting liquid waste at
the time Mr. Kai and I opposed the landfill on the Tortolita Fan. That doesn't happen any
longer. There is no hazardous waste, tires, or liquid waste.
There will be active well monitoring including offsite wells. You have the bond, the
insurance policy and all the other regulatory permitting issues. There is not health
affects associated with modern landfills. There is residential and commercial
development all around them all around the state and all around the United States.
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We have spent a lot of time on Traffic. Regarding volumes, approximately 100 trucks
during the day during the week, about 20% as many trucks. It will be much fewer during
the weekend. During the weekday you will have 100 - 200 cars and during the
weekend many more cars 300 - 400 cars, but many fewer trucks. One benefit, they are
virtually all off peek trips. You will have a few that go while people are going to work and
almost none at the end of the day. These facilities operate from early morning to mid
afternoon generally, so almost no impact on evening or afternoon drive time and minimal
impact on morning drive time. Traffic is spread out throughout the day and is a fraction
of the available capacity on Avra Valley Road. The Santa Cruz River bridge is in good
shape and was rebuilt a number of years ago. There is one small bridge at the east
bank of the Brawley that will be evaluated and upgraded if necessary. Other
intersections along the way will be evaluated and our share of improvements on those
will be performed and entirely all the improvements required and associated with the
project.
Litter control is another issue that has been brought up. Regularly it is an important
function of any landfill. Tangerine has done a very bad job of litter control. It is a horrible
example. If you go to the Phoenix metro area, you don't see anything like that. There is
a full time staff that will be responsible and required in the development agreement
enforced by the Town for regular litter control on our access road and down Avra Valley
Road. We initially looked at the area near the landfill where there is going to be the
most, but we will take that all the way back to the I-10 Interchange to ensure that there
are not litter collection problems associated with this, because litter will fall off trucks,
litter will fall out of individuals cars. The point is that you clean it up and you do it
immediately. That is a requirement of this project and as a privately owned project it is
a requirement the Town can easily and regularly enforce as opposed to the current
situation.
Another provision of the development agreement is that if at any point in the life of the
facility, there are additional FAA studies required due to the airport getting a new grant,
gets scheduled air service, any reports or mitigation this facility will fund those reports
and do the on-site mitigation that is needed. Additionally, as a community benefit and to
deal with the wildcat problem there will be free dump days on two occasions a year.
Anyone in the Town of Marana and anyone in the areas around it can bring in and drop
off waste as well.
We have engaged in an extensive outreach program to a very broad area and we are
going to continue that not only throughout the land use process, which is all that we are
dealing with tonight, in spite of this excruciating detail, but throughout the entire year long
permitting process that follows that. We have had a large neighborhood meeting and we
will continue to talk and meet with local groups to address specific issues, because the
issues of Happy Acres are probably a little different from the issues of Silverbell West.
We will meet with other folks as well and continue that.
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We have spent a lot of time tonight, but we have spent a lot of time on the proposal.
There are those that would like to suggest that something has been rushed or not
thoroughly prepared. I could not disagree more. This has been a timely process, we
have not wasted time. We have prepared carefully and worked with the County, the
Town, coordinated with the City of Tucson and other state and federal agencies and we
will continue that through this entire process. I would like to bring us all the way back to
where I started tonight, all we are asking for is a recommendation to move forward with
the land use change. The landfill permitting and landfill approval is for ADEQ and a
whole alphabet of other local state and federal agencies.
With that I would happy to take any question you have but moreover I would be happy to
come back and re-address any issues or new issues that come up after the public
testimony. I thank you for your patience. It is an issue that generates a lot of emotion. I
have gone on a lot longer than I normally would, but it is a subject that I think deserves
that level of detail and consideration.
Commissioner Adragna stated I have two questions. One is you mentioned some
other landfill facilities as a way of comparison, specifically the Chandler and Glendale
Landfills. How does this facility in the way it is being pursued in terms of volume or
general size compare to those, larger, smaller or about the same?
Michael Racy answered it is about the same as those. Chandler is probably a little
smaller, but has a transfer station next to it. Glendale is close to the same size and Los
Reales is probably a little larger. There are many other even larger facilities around the
state. They are all good comparables to what we are talking about tonight.
Tangerine is a smaller facility. It is not as large or as tall as this and is also right next to
the road and has a very different history and design.
Commissioner Adragna stated my second question is I found back in the actual Staff
Report, which may actually be a question for Staff more than the applicant, through the
application it talks about a minor amendment to the General Plan that is required to allow
this use to be located where it is. It looks like the minor amendment has to do with the
change from Rural Density Residential to Master Planning Area. With regards to a
Master Planning Area how does that use relate to any other Master Planned areas or
other general use issues in proximity to this or is there any? Or is it purely Rural
Residential everywhere and this is kind of an island by itself?
Michael Racy answered to the extent I understand the question; it is a good question for
Staff to address. It really pertains just to this specific area. The way the Town of
Marana Land Use Code is designed, you can incorporate a minor land use change along
with a zoning change and it applies just to this area. If someone wanted to bring
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something else or different in that would be separate. It doesn't apply to the other
annexation areas.
Commissioner Adragna restated his question to Kevin Kish. My question was with
regards to the application, it refers to a minor amendment to the General Plan from Rural
Density Designation to a Master Planner Area. Are there any other similar land use
General Plan issues adjacent or in the close proximity to this proposal or is it strictly
completely surrounded by Rural Residential designations?
Kevin Kish answered it is completely surrounded by Rural Residential. The General
Plan sets up an opportunity when we do the Master Planning of Specific Plans that
equates for the General Plan land use layer to go into conformance with a Master
Planning Area. Typically, whether it is a residential or commercial industrial mix on
larger plans, it comes into a Master Planning Area because there isn't a one size fits all
in terms of the General Plan designation on it. It is authorized through the adoption of
the General Plan the way it is set up in the implementation program of that General Plan.
Commissioner Adragna stated that leads to a follow-up question. Is there
infrastructure in the close proximity to this facility that would support any other more
intensive use other than Rural Residential some time in the future?
Kevin Kish answered at this time I don't believe the infrastructure is out there. I know to
the west there are subdivisions that have septic provided for them and also water
facilities. It is possible by extending the water utilities infrastructure to areas around the
land if appropriately developable and use a septic type system on it.
Commissioner Adragna stated I guess I am talking in terms of infrastructure utility or
electricity capacities; sewer is obviously one of them. Also, water availability, road
infrastructure, drainage, industrial type uses which has been presented as a compatible
use and I am not hearing anything that is referring or lends itself in going towards the
direction of an industrial center that would be compatible with this use in the future.
Michael Racy stated just a few years ago the Town of Marana upgraded their water
system and as part of those industrial uses that are already there, there is a significant
water infrastructure, wells and storage in this area which will then allow for water. There
is extensive electric already in this area and as part of the Town's Master Plan there is
also sewer services planned in the future. So is there sewer and water to the
immediately adjacent properties at this time, no there is not. But, this is a very long life
project and those certainly are part of Master Plans that are being worked on for that
entire corridor in the area of the airport.
Commissioner Adragna stated one more question. What is the ultimate right-of-way
for Avra Valley Road, which is the main road that leads to this facility and has it been
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designed to handle the types of vehicular traffic that we are dealing with? More
importantly, if it is not, is the right-of--way adequate for a corridor to lead to more
intensive type uses in the future or is that something that the Town is going get through
`eminent domain' or whatever down the road to achieve that kind of right-of-way to
access more intensive uses beyond Rural Residential?
Keith Brann answered Avra Valley Road on our Major Routes Plan. is set up for 150 foot
right-of--way. It is intended to be a 4 lane arterial roadway. That amount of right-of--way
does not exist at this time; however, with Master Planning at the airport there is also a
desire to realign Avra Valley Road further to the south to gain more buffer area around
the airport. The rights-of-way for the ultimate arterial would likely be acquired at that
time. There is enough right-of-way out there today to support the current roadway and
could even support some modest widening such as creating the turn lanes and things
like that which have been proposed. The current right-of--way does not support a 4 lane
arterial at this time.
Commissioner Adragna stated so this is currently a major thoroughfare and it's always
been intended so if anything it will get larger than it is now.
Keith Brann responded yes. Avra Valley Road is an arterial roadway on both our plans
and Pima County's plan and has always been so. It uses 150 foot right-of--way in both
our Major Routes Plan and Pima County's Major Routes and Scenic Routes Plans.
They are compatible documents.
Commissioner Adragna asked is that process typically achieved through `eminent
domain' process or something else.
Keith Brann responded typically we wait for developments to come on line and develop
and we get the right-of--way through exactions from rezoning. People will build parts of
the roadway as necessary. If the time comes that we do have to come forward with a
Capital Improvement Project, first we try to purchase land at the appraised value before
we go to `eminent domain'. If need be the Town would acquire right-of--way.
Commissioner Adragna stated I would imagine the design process of that roadway
would be handled the same way.
Keith Brann responded at that time the design process would be a capital improvement
project simply concerned with the roadway itself.
Commissioner Adragna stated similar to Tangerine on the east side.
Keith Brann responded yes sir.
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Mr. Esparza (Traffic Engineer for applicant) came forward to address the
Commission. We have prepared a preliminary study report that addresses in part the
existing roadway conditions and capacity of the roadway. One of the things we did was
to collect the traffic volumes along Avra Valley Road as part of this project. We found
that there are about 4,000 vehicles per day west of Trico Road and about a little over
8,000 east of Airline Road. That is well within the capacity for acceptable levels of
service for a two lane roadway such as Avra Valley Road. The project itself is projected
to generate fewer than 1,000 vehicles a day. Added to the existing traffic, that will still be
well below the capacity of the roadway. Twenty years down the road there will be
regional growth. We assumed a factor of about 5% per year growth factor on the
roadway, not necessarily associated with the landfill, but just what is hopefully going to
happen with developments and other types of regional connections that will be added.
One of the things is in the PAG's Regional Transportation Plan are two projects that are
planned for Avra Valley Road. One for Pima County with the section that is in Pima
County and one that is in Marana. The projects are to widen Avra Valley Road to a four
lane section. Those are scheduled in their Regional Transportation Plan in ten year
increments. The increments for these projects I believe are from 2010 to 2020. There is
no specific design or other preplanning associated with those to my knowledge. They
are in there and it recognizes that Avra Valley Road is going to be used quite a bit more
than it is today.
With a four lane section the capacity is going to increase. It is certainly going to be big
enough to handle the capacity of the roadway with both the regional growth and the
landfill traffic on top of it.
Commissioner Schisler stated we speak of material recovery, is that while you are
digging out sand and gravel. Is there going to be an asphalt plant there?
Michael Racy answered absolutely not. That simply means the excavation of the.
material to use as cover in the landfill. It will be used for the berming around the landfill
on that south and west side. There will be riparian restoration as mentioned at that
northeastern corner and we probably will have some excess material that would be
available to be sold for folks that need it for various projects. No gravel or asphalt
operation.
Commissioner Schisler asked has anybody checked on the prevailing wind direction in
that area?
Michael Racy answered we have, but in fact probably the most comprehensive wind
studies are from where the airplane is sitting. Look at the direction of the runway and
you will know the direction of the wind. In the morning the wind in this area comes from
the southeast and in the afternoon it comes from the northwest. That is runway 12 and
runway 30. That is the. predominant direction of winds in this immediate area. It is the
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predominant runways that are used. There is runway 21 which is a smaller runway. It
gets very light use. We do have weather conditions that bring winds from that direction.
In this part of the country winds blow in every direction. If you want to pick the
predominant winds, it is 12 and 30 shifting midway through the day.
Commissioner Schisler asked would you be averse to having a condition in your write-
up, you talk about cleaning up the roads to and from the landfill, but what about the
property around it? Have you noticed on Tangerine Landfill on the north side where the
big chain link fence collects all that trash that is blown in there and is never cleaned up?
Talk to me a little about what you plan to do with that.
Michael Racy answered we would support that kind of condition and it already exists in
the development agreement concepts. Again, I don't want to speak ill of others
management of projects, but it is not a good example and I know exactly the trash you
are talking about. This entire site and everything around it would be policed on an
ongoing basis and would be enforceable by the Town.
Commissioner Schisler stated I don't like the'sight at the Tangerine Landfill. I don't like
to see the trash stuck in a big chain link fence. Do you plan on a five wire fence around
the property to keep out trespassers?
Michael Racy answered it is actually a combination of fences. On the south side right
from the beginning will be chain link and then going northbound on each side will be
chain link constructed in phases 100 feet north of any .active area. Then there will be
five wire fence beyond that because it is a large area. We will be policing that entire
area. As the facility grows to the north the fence will always grow ahead of it to the north
ultimately enclosing the entire site. There is a roadway all the way around it designed for
a variety of purposes, but in part to make it completely accessible to do that kind of clean
up forever.
Commissioner Pound stated I am looking at the signs out here; my question is how do
you assure that toxic and liquid waste is not coming into dump? I am sorry it is not a
dump but a landfill. I grew up when it was a dump.
Michael Racy answered it is a great question. I have referenced a couple of times that
we don't accept any of those wastes. In fact, there is an entire inspection protocol that
has to be approved by the Arizona Department of Environmental Quality that checks
loads to ensure that things are not getting in. Does that mean that small amounts won't
ever be missed? Small amounts will be missed. That is the reason for the double
HDPE clay based liner leachate collection system. There are enormous protections to
first monitor and ensure that nothing comes in. If anything is discovered the entire load
is rejected. Also, it is staggering and I don't know if we want to take the time, but Mr.
Hand or Mr. Bowers could talk about how every cell is designed much smaller than the
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cells I had shown you before, with a catalogue of every load that comes in. So if the
monitoring wells and the leachate collection systems which have sumps all over, you
can identify where something is coming from if it ever happens and it would be
remediated immediately. But with these modern systems not much of anything gets in.
Commissioner Pound asked if it does get in what stops the dozer driver from just
driving over it and crushing such as 10 gallons of oil or something like that..
Michael Racy answered again all of those folks are trained to look out to see anything,
stop immediately and get people to clean it up. I am not going to sit here and say that it
is a 100% perfect system, but every other aspect of the design of the system is built to
accommodate for that. This is opposed to the old systems. The first part of Tangerine or
Los Reales that accepted liquid waste was not lined. It is interesting; we have a test
case just down the road. You are going to here a lot about the aquifer. This is in the
Avra Valley sub basin along with Tangerine and Durham. Every landfill around here is
over a major aquifer. We are in the Tucson sub basin. They all come together and
there is nothing different or unique about this landfill's proximity to this aquifer. We are
hundreds of feet from the water table. Twenty-six years at Tangerine, parts of it unlined,
parts of it poorly lined and nine years of it accepting liquid waste, no contaminants have
been found in the monitoring wells around Tangerine. That is with not very good
technology.
Commissioner Adragna stated the one question that is leaning on everybody's mind
more than anything else; we have liners, safeguards and monitoring. We are dealing
with Marana which is predominantly wells water pulling off that aquifer. All the testing
and monitoring in the world, you have one shot at it. What if? Granted it could be a
million to one chance, but it is that one chance that is there. Who is going to be
responsible and who is going to satisfy damages to individual home owners and
residents of Marana? Who is going to be held accountable for that? This is a privately
run facility.
Applause from the audience.
Chairman Fogel called the audience to order stating ladies and gentlemen I would
encourage you please hold your applause; this is not a show.
Commissioner Adragna continued you can't go to the Town, because it is not Town
mandated. From the business standpoint it would be real easy to say `we have a
problem, we just go bankrupt and run away', but personally, that is not good enough.
You wreck our aquifer, somebody has to be held responsible and I think somehow that if
this project does move forward it should be tied to the conditions that every citizen in this
Town has some assurance that if something does go wrong, that we have somewhere to
go to get satisfaction. Can you address that in any way?
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Michael Racy answered first let me emphasize the permitting process that this has to go
through deals with exactly that issue in incredible detail. Second, because of the nature
of the protection systems, it is not one chance. You've got dozens of chances to
monitor, detect and remediate before anything gets into the water table. The monitoring
wells, the leachate collection system, the monitoring of off-site wells, all contribute to
that. The on-site monitoring wells and the leachate collection, even way before, years
before would detect any contaminants and you would immediately remediate. But what
if, we have that in every landfill in the state of Arizona and in the country. This one is no
different in its proximity to the aquifer and it is much better than Tangerine and Los
Reales. They are all sitting over aquifers. We all have that risk.
You ask for financial assurances. That is why there is a $20 million dollar insurance
policy in place for the entire life and for years after the life that will cover any of that in
addition to the state bond that increases every year to ensure there are two sources of
recovery for any remediation activity. If it finishes its life, gets closed, or if the operator
goes out of business, under any of those eventualities, the bond and insurance policies
are in place for remediation. Federal and State laws require that the operator is
responsible as well. You brought up the issues of insolvency and others, those
mechanisms are in place and are routinely used around this state. It is nothing unusual
or unique that we have thought about for the first time. This has been thought about by
the experts in this field for many, many years.
In addition to the other things we have had additional meetings with the US Fish and
Wildlife Service and representatives of Coalition for Sonoran Desert Preservation. This
property is not included as part of the County's conservation land system. They felt it
wasn't suitable. I may be habitat for the shovel nosed snake and may well have some
burrowing owls on it. What we have worked on with the service is, in fact they felt the
berming and the other characteristics would be fabulous habitat for burrowing owls. We
will be incorporating that in the facility and will tie in with the riparian restoration along the
east branch of the Brawley Wash. We will also be doing some shovel nosed snake
studies. The concept has been that ultimately is the landscape is very suitable for a
burrowing owl management area for the entire region. That is something we are working
on developing with the US Fish and Wildlife Service.
Chairman Fogel opened the hearing to the public.
have a number of cards here. We are going to stick to the 3 minute rule. Sandy will be
timing us. In order for everybody to get their say, please stick to the 3 minute rule. If
you agree with somebody who spoke before you, just state that you agree. There is no
need to repeat the same things over and over. I will be calling two names at a time. The
first name will come up and the next person will be ready.
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Commissioner Pound asked to add something. If you keep the demonstrations down,
we will get through this a lot faster.
Chairman Fogel added there is no need for applause. We know where your sentiments
are.
Annie Shelberg came forward to address the Commission. I am going to burn a couple
seconds of my three minutes by stating regarding Ora Mae Harn, this is not her
backyard at all. That was inappropriate and insensitive to the people of Silverbetl West
who I share their concerns with.
Chairman Fogel stated that was her quote and I am just repeating what she said
Annie Shelberg stated I am just saying the way that you said it was inappropriate from
a Chair. I live by the Tangerine Landfill and I have no traffic impact in my community
right now. I work in Riltito. I have no impact since the Town of Marana has changed the
Tangerine and I-10 Interchange and they can't get to our roads anymore.
The residents of Happy Acres are concerned about the traffic impact to us and the entire
community including Marana High School Students and all Avra Valley users. Two semi
trucks have left Avra Valley Road eastbound lanes in the last four years. The most
recent one last summer went through four properties before coming to a rest only 13 feet
from a second home located on Longview Avenue, the road I live on. The truck also did
hit the back storage unit of a house on Airline Road that is attached to the home.
Eighteen wheel trucks transfer waste currently from Waste Management to Phoenix.
They haul trash that weighs up to 80,000 Ibs with their truck. They will use this landfill
because it will be prudent for their business to use this landfill. Those trucks in addition
to regular what you think of trash hauler trucks or anything else will be on those roads in
addition. That is 25 to 30 trucks per day, semi trucks with 80,000 lbs.
Today there are four large pot holes at Avra Valley Road and Frontage intersection,
hundreds of cracks in the road from Frontage to Trico and very little road clean up. If we
need it and we call they will come out.
A light is needed at Sandario Road and Avra Valley Road to protect our kids. The three
way stop at Emigh Road is a result of an inexperienced high school driver pulling out in
front of a waste truck, a regular trash waste truck, not an 80,000 Ib semi truck. We
would want to see major road improvements, lights to slow traffic, and enforcement
effort.
We have a long way to go and the pace of this project needs to slow down to address all
of those issues. We all need to be open, honest, informative, and come up with the
ideas that will help to protect our community.
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Again, I already live closer to the landfill. Our concems are different than those of
Silverbell. I trust ADEQ to do the right job. I trust FAA to do their job. I trust the EPA to
do their job. So I am sure they will be able to do their job. I do not trust traffic engineers
who do not live in my community or travel on my roads. This is a development
agreement between the Town of Marana and New West Materials that came into my
neighborhood across the street and four of these conditions been met and four of them
are in violation today.
Robin Meissner came forward to .address the Commission. While I get up, I would like
to say it sounds like a lovely place to live 2,000 feet from a landfill. So, I have a home I
am willing to offer any of you for sale.
You all should have a manila folder on your desk that has our packet of information for
your perusal. I am here to discuss the Marana Regional Landfill and our opposition of it.
We have serious concerns. We have requests and questions.
There are a large group of residents who oppose this landfill within the Town and
Outside the Town.
We are pro-business, pro-development. We believe our issues are significant and well
sourced. We encourage everyone to check www. ip ma.c~ov, thank you Pima Co. for
allowing this issue to be transparent. Many documents have been uploaded with the
correspondence between the Town of Marana and Pima County.
I would like to ask now for those who oppose this landfill to stand or raise your hand or
both. I guess there are more than 14.
We are not here to present to you a `not in my backyard argument'. This transcends you
and will affect all of Pima County now and for future generations.
What we request is for the Commission to deny the rezoning of the proposed landfill site
tonight. If DKL cannot provide "layman" such as ourselves, supportive data, how are
they providing you adequate information to move forward. Please slow down. We
believe it is going to fast. The decision doesn't have to come tonight. We ask that you
investigate the information with diligence required for one of the most noxious land
development uses possible.
Floodplain is one of the major issues and not touched upon to greatly with Michael
Racy's presentation. The site is in a FEMA flood hazard zone. Suzanne Shields the
Director and Chief Engineer of Pima Regional Flood Control District stated, "There is not
enough information in the Marana Regional Landfill Specific Plan to evaluate their
hydraulic model and claim that the actual 100-year floodplain is less than the adopted
FEMA floodplain limits". (Quotation per Robin Meissner's presentation) Risk and liability
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for 20 new jobs is what the landfill wilt create according to Mr. Racy, unless that has
been revised.
Water -Water is an incredibly important issue. This is from the US Geological Survey
2007 (referring to the map in her presentation). The red area is the proposed landfill. It
is landing right on the only aquifer, the largest aquifer in the Tucson region where the
water levels are actually increasing. Along the red areas, these levels are declining.
This is our future water.
I would like to make one last comment that Mr. Miranda, Tucson's City Manager has
"directed Tucson Water to conduct a complete analysis on the affects the proposed
Marana landfill and what it could do to Tucson's water aquifer". (Quotation per Robin
Meissner's presentation) It is an important issue to them.
Ron Asta came forward to address the Commission. I have been working with land
planning and rezoning issues inside government as well as outside, since the 1960's. I
am sort of like the other white haired guy that spoke to you on the previous case. I
respectfully suggest that this landfill needs to be defeated.
First, nowhere in America has a project of this size and impact proceeded to a hearing
before a planning commission just 60 days after the application has been filed. The
neighbors just got this traffic report today and it was dated Monday. How can there be a
thorough review in 60 days?
Further, where does it say that a city or town can hold rezoning hearings on land outside
its own jurisdiction? This hearing tonight should be conducted by Pima County where
the neighbors can testify before the people they vote for. They cannot vote for the
Mayor and Council of Marana, so their opinions can be of no consequence.
This is the rub. These people are disenfranchised. That is why they went to the Pima
County Board of Supervisors under call to the audience searching for help.
To continue, where does it say that a landfill seven times taller than Tangerine, two times
higher than the Los Reales Landfill, a project this huge, where does it say that the
project has to first be the subject of your year long plan amendment process prior to
beginning the rezoning. The Town has just launched its 10 year General Plan Update.
Shouldn't this project as big as it is be integral part of that process?
Your staff has recommended approval in part because they have found that the project
meets the standards of your Land Development Code. What standards? I have
searched the code and cannot find where a landfill use is even allowed in your zoning
code. So how can there be standards for a use not even allowed. And if there were
such standards, would they permit a landfill to locate in a 2 mile wide, 3 foot deep
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floodplain in the middle of 2 airports that are making multi-million dollar plans for
expansion and economic growth?
Mr. Chairman and members of the Commission, you can restore confidence with these
people and deny this landfill project if for no other reason than the arrogance of the
process itself.
Chairman Fogel asked Mr. Asta, have you ever been involved in one of these kinds of
programs before? You sound like you have some experience.
Ron Asta responded yes.
Chairman Fogel asked where was that.
Ron Asta answered I was the lead planner for a landfill northeast of Red Rock, Arizona.
It took two years and two months to get a hearing before the planning commission like
we have now, because were directed by Pinal County to meet with everybody, to do all
sorts of studies to seek approval.
Chairman Fogel asked are you or your company still involved in that?
Ron Asta answered I am no longer involved in that project. My job ended last July
when I got the rezoning.
Charles Goddard came forward to address the Commission. I'm here to speak in
opposition of the proposed Marana Regional Landfill. I am voicing concern regarding
the location of the landfill in the middle of an active floodplain. There are a number of
problems associated with the proposed location and chief among them is that the
Brawley Wash Fooodplain, specifically the east branch, is designated by both FEMA and
the Specific Plan for the landfill has no delineated floodway. Any proposed plans in the
delineated floodway would be in violation of Section 16.24.010 of the County Code and
Section 21.05.09 of the Town of Marana's Land Development Code.
Before anything can be done on the land a floodway has to be delineated for the
floodplain. The specific Plan states nothing about any plans to address this issue. In a
100 year flood situation the floodplain around the proposed sit is characterized as you
have heard before, by a 3 foot average flow depth. This raises all kinds of concerns
regarding overland trash transport and potential contamination by stuff being dragged
off-site away from the liner of an aquifer that supplies water not only to us but to our
entire region.
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The site has plans to accommodate fora 100 Year Food event, but the fact must be
raised that while many view a 100 Year Food event as a worst case scenario situation,
we can and do receive rainfall events that are worse than a 100 Year Flood.
In response to Marana's Specific Plan review request, Pima County Regional Flood
Control District has recommended that the landfill use water diversion features that
would accommodate not a 100 Year Flood, but a 500 Year Flood. From what I gathered
this was dismissed out of hand. The Regional Flood Control District said this because of
"the nature of the development and the serious environmental consequences if the
landfill is flooded". Should such an event occur the consequences for people farther
downstream in the EI Tiro area could be significant.
You guys have heard this before and I am going to say it again for emphasis, Suzanne
Shields the Director and Chief Engineer Pima County Regional Flood Control District
stated, "There is not enough information in the Marana Regional Landfill Specific Plan to
evaluate their hydraulic model and claim that the actual 100 Year Floodplain is less than
the adopted FEMA floodplain limits". (Quotation per Charles Goddard Jr. addressing the
Commission) Given such commentary from local experts regarding the ambiguity of
data presented in the Specific Plan, and the quite obviously expedited nature of all
processes associated with the rezoning of this land, as nearby residents we are very
concerned at the reckless pace at which the landfill is proceeding.
We are requesting the Commission make responsible recommendations to the Board
based on detailed analysis and specific, separate reports supporting the Specific Plan,
which do not exist to date. To recommend the re-zoning of Vice mayor Herb Kai's site
for development of this landfill without sufficient analysis, is jeopardizing the health and
safety of the entire Southern Arizona population.
Jens Hill came forward to address the Commission. Although I do not live within the
Town of Marana limits, this evening I will be addressing one of our many concerns about
our drinking water and the impact that this landfill can potentially have on our future.
I'm certain that many of you know about the contamination at Tucson International
Airport that was discovered during the early 80's and written up by the Environmental
Protection Agency. You have it right there in front of you (AZD980737530, 2009). The
primary contaminant of concern was TCE (trichloroethylene) and is a probable human
carcinogen. This contaminant plume was deposited by rinsing TCE off of whatever
machinery it was on and sent into unlined basins. Yes, the landfill will be lined. This
travesty created a contamination plume. The reason I bring up this travesty is because
the Town of Marana City Council received a proposal by DKL Holdings, Inc. recently.
This proposal puts a large landfill on top of the aquifer, the largest regional aquifer and a
sole source of water by the EPA. This aquifer is called the Upper Santa Cruz & Avra
Basin Aquifer. As water percolates through the landfill, it creates something called
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leachate. Leachate can be looked at like coffee as you would get when you put water
through coffee grounds. It pools at the bottom of the landfill. This water. will be
reclaimed and used for dust control or disposed of in leachate evaporation ponds within
the landfill. Any manufacturing process has an acceptable industry failure rate. Per the
Environmental Protection Agency all landfills will inevitably leak. It is not a matter of
how, but when. The well owned by Tucson Water providing my community is within
1,900 feet of the boundary of the land being annexed and will be 'h mile from the
northern most edge of the landfill when it is completed per The Planning Center. Just as
the rest of my neighbors, I have no desire to be a canary in the mine when this failure
does occur, because my community will be the first ones affected. At this time I request
that all of you take this matter into full consideration.
Pamela Ruppelius came forward to address the Commission. I would like to address
the issues concerning the two airports.
As you all may know, the FAA has requirements regarding Airports within a 6 mile radius
of a newly constructed landfill. According to a surveyor, Pinal Air Park is 5.48 and
Marana Regional is 2.3 miles within the perimeter boundaries of the proposed site.
According to Flight line officials at the Pinal Air Park, they state that they do have
regularly scheduled flights. Also, according to Roger Yohem at the azbiz.com article
dated January 22, 2010, Marana and Pinal officials are stated saying, "That the long
term potential for Pinal to be annexed into Marana for the purpose of shipping and cargo
is a visionary idea that both Marana and Pinal are proposed to explore".
As has been debated about the kind of airport or hub the Marana Regional Airport
currently is, does not account to the fact that you have in a chapter 5 of the airport plan
the expansion of runways and designs to eventually serve business and corporate users
which would exceed the limitations of the federal regulation established by the FAA for
new landfill limits.
Has the Town of Marana notified the FAA, State or other regulatory commissions about
the first order on your list, which is to install a dump before the airport? How will that
affect funding for the airport expansion?
In table 5D of the Master Plan, chapter 5, nowhere addresses the issue of the landfill
that you knowingly are proposing and will have a lot of impact on our environment and
safety. It is obvious that they have identified every other issue imaginable but fail to
mention the landfill or what I call dump.
You have also concluded in table 5D labeled, The Secondary Induced Impacts, that you
are acknowledging with the expanded facility and services within the airport, you will in
the future attract additional users to include industry, trade and tourism to enhance the
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future growth and expansion. How many more jobs will be available to the community
with and expanded airport verses the 20 jobs available with the dump according to Mr.
Racy.
Many officials are now aware of the proposed landfill and have a great concern. These
include Mike O'Donnell, Director of Airport Safety Standards in Washington, D.C.,
William Withycombe, Regional Administrator, Dan Burkhart Regional Programs Director,
AOPA Pilots Association, Tony Garcia and David Dochade our Regional Directors, just
to name a few.
Please I am asking for a denial of this rezoning proposal based on not only the airport
issues, but many other concerns that we all have presented. More time should be taken
to make such a large decision that could have adverse affects for the future of Marana.
I understand that some of the issues you are looking at about the airports do not affect
them now, but I ask you to envision the future development of Marana.
I am not against industry, but the location of the landfill would greatly jeopardize the
growth of our airports.
Are you willing to give up the option for growth and expansion of the airports for a landfill
that will only cause a hazard in so many aspects and areas in our community?
For a change, let's put the people's health and welfare before our money.
Janice Mitich came forward to address the Commission. I am a retired educator,
having taught for 30 years in the Tucson Unified School District.
I have grave concerns regarding the rezoning of Vice Mayor Kai's property in Avra
Valley for the purpose of a landfill. Many of these concerns have been or will be
addressed by other citizens present tonight.
You may wonder why I am involved since I live in Picture Rocks and not near the
proposed site. I am involved because I wouldn't want a landfill or dump in my backyard.
What the Town of Marana is doing to these folks is morally and ethically wrong. I find it
ironic that approximately 20 years ago Waste Management wanted to locate a dump
east of I-10 and north of Tangerine Road and Vice Mayor Kai and others, not wanting a
dump in their backyard, adamantly and successfully opposed the site using the catch-
phrase, "Don't Waste Marana". Now, 25 years later Mr. Kai is attempting to do the same
thing to his neighbors. The only difference being that he will profit by this decision and
shame on him.
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I believe that the `Golden Rule' applies here and what is good for the goose is good for
the gander. I am asking the Planning Commission members and the Town of Marana
Council members to examine your consciences. Is it fair and just and right for you to do
to others what you don't want done to you? If this landfill location was in your
neighborhood, would you vote to allow it? If your answer is `no' then ethically, you must
not support the proposed site. If your answer is `yes' then I am sure everyone here will
work with you and DKL to move the site into your neighborhood.
Melissa Rohlik came forward to address the Commission. Mine is actually very similar
to Ms. Mitich's. Others are opposing this stating the aquifer, floodplain and trafFc issues
as their main objections. Make no mistake that is also our main objection to this planned
site.
do, however, need to point out what I believe to be at best questionable politics within
the Town Council. Vice Mayor Herb Kai recused himself from the process according to
Dave Perry of the Explorer, yet he is out personally and professionally soliciting letters of
support. It is my belief that this has been put on the fast track because of Mr. Kai's
position within the Town Council.
AZ Daily Star July 29, 1991 - He used his position as a board member of the Cortaro
Marana Irrigation to oppose the Waste Management Landfill that was slated to go into
his backyard according to then Irrigation District Manager Robert Condit. The main
opposition they used was the ground water.
AZ Daily Star February 25, 1998 -Marana discusses need to protect views along
Silverbell Road. Then Councilman Kai stated he thought the Town was already doing a
good job protecting views along Silverbell. Now he wants a 220 foot high dump set
within 2,000 feet on that ground water and on his land? How much is he going to make
on it?
AZ Daily Star January 22, 2009-Kai family opposes Union Pacific switching yard on
state land they lease on the premise of air and water pollution and retirees in an RV
park. Herb Kai states "we just think it's a bad place". The proposed dump is a bad
place.
AZ Daily Star April 28, 2005-Vice Mayor Herb Kai leads a private effort to raise money
for embattled Mayor Bobby Sutton and I quote "I'm spearheading the effort, trying to
appeal to all the residents. The private money would go to Sutton win or lose". The man
pled guilty.
Where does Herb Kai really stand? He doesn't seem to stand solid on any position. If
this dump is really it and he is going to personally profit, which he is, he should have
resigned his position.
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Please people; take some time to weigh all the facts that are being presented. Water is
all we have to survive on in southern Arizona. For nearly 20 years the Kais have fought
for ground water and now that there is potential to make big money, ground water
doesn't matter?
Please be a town known for Accenture Match Play, major league spring training and
airports and not a town of prisons, super dumps and questionable politics.
In closing please know though we may not live within Marano Town limits. We have
family, friends and work acquaintances who do and we can and will sway votes.
Steve Storzer came forward to address the Commission. We are not opposed to
annexation as long as it does not affect people, water or wildlife in that order.
Annexation of the Vice Mayor's property seems to be on the fast track as you have
already heard. What is the hurry? There is a big hurry to build this landfill.
As you know it is in Pima County. The proposed site is only 2,000 feet from the only well
where we get our water.
We believe that more study is necessary for alternate sites that are:
• Not located near people
• Not located near a potable water wells
• Not located in a floodplain
• Not located on top of a valuable water aquifer
• Not located where animal and plant species may be harmed
Unfortunately, we all know that this site:
• Is located near people
• Is located near a potable water well
• Is located in a floodplain
• Is locate on top of a valuable water aquifer
• Is located where animal and plant species may be harmed
The proposed site is 10 times bigger than Tangerine and its life expectancy as Mr. Racy
explained could be 50 to 70 years.
There is no reason to fast track the effort. Mistakes could affect hundreds and maybe
thousands of Arizona residents. We need to preserve our precious ground water, keep it
clean, and not allow a landfill to be placed on such a valuable resource.
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We ask the Planning Council members to recommend against annexation of this site
and recommend against placing the landfill in an area where our drinking water comes
from. More time is needed.
Our generation has made too many mistakes that our children and grandchildren have to
correct. We cannot allow this landfill to be located this close to 100 families and this
close to our valuable water source. If and when it leaks, our children and grandchildren
will have to figure out how to clean it up.
Just for your information, we have all kinds of people living in Silverbell West. We
moved there because it's quiet, peaceful and it's away from the city. We can see
millions of stars at night, but we are not a bunch of desert dogs sitting on the porch
waiting for big business, big politics, and big money to push us around. We want to be
heard. We demand to be heard. We pay taxes. We buy products. We support Marana
businesses. We support the Marana School District. Our children attend Marana
schools. We also vote and we can influence votes, however, if anyone messes with our
families or with our water, they should know that desert dogs bite.
Nita Storzer came forward to address the Commission. On January 29, we received a
letter from The Planning Center. On February 9, there was a meeting at the Sky Rider
Cafe. We attended that meeting with over 100 of our equally concerned neighbors. It
has been less than 4 weeks since we learned about a proposed dump in our
neighborhood. Why the big rush?
We have read the Specific Plan and do not support it. The proposed site is too close to
people in our neighborhood. It is too close to our water well. What happens if leachate
ends up in our ground water?
Do you know what leachate is?
When water percolates down through decomposing solid waste, it produces leachate.
Additional leachate is produced during decomposition of carbonaceous material. It
produces methane, ammonia, carbon dioxide and a complex mixture of organic acids,
aldehydes, and alcohols.
Leachate contains highly organic and inorganic materials. Some of it will be dissolved
and some will be suspended in the solution. It will undoubtedly contain crop spray
chemicals. It may also contain toxic heavy metals, petroleum products, and any number
of caustic household cleaning products. The smell is acidic and offensive and may be
very pervasive because of hydrogen, nitrogen and sulfur rich organic species.
Illegal activity may introduce a wide range of restricted materials that make the leachate
even more deadly. The proposed facility personnel cannot inspect every load coming
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into the landfill. This material may become airborne or leak into the water table.
Remember, all municipal landfills will leak.
More time is needed to allow further study. We need alternative locations away from
homes and two of our most valuable resources -people and water. And do not forget
about the negative impact to animals and plant life.
We ask that you do everything in your power to prevent the annexation of this land. We
need more time to study this. Do not allow Marana to fast track this annexation when so
many lives and valuable resources are at stake. We do not need a garbage dump in our
neighborhood.
Elaine Ramirez came forward to address the Commission. We believe that we have
some questions that should be addressed before any decision is made.
Is there really a need for this landfill?
- If Tangerine's life has been extended 10 years primarily due to volume
decreases, which is 70 acres and 30 feet tall, why would a 400+ acre landfill be
financially viable?
- Where are the details? Shouldn't the decision be made after examining all of the
studies that are conducted by objective companies?
AIRPORT QUESTIONS
- Too many questions are unanswered and not well supported, why are we rushing
this through?
- If there is no airport issue, why is an FAA exemption option being considered?
- If they file for an exemption, is that responsible planning?
- If they file for an exemption, are we risking its approval or denial?
- If they file for an exemption, are we risking safety?
- If we risk safety, won't liability jeopardize any economic benefits the landfill may
bring?
- .Why are we risking the better economic development alternatives the airport
expansion will provide?
- Are we willing to give up future Federal Funding?
- Are we giving up ever having the option for scheduled air traffic service?
- What is the distance to Pinal Airpark?
- Shouldn't crucial answers be provided through objective research?
FLOODPLAIN /WATER QUESTIONS
- Why are we risking the entire Tucson area's drinking water?
- DKL Holdings will have you believe the floodplain can easily be mitigated based
on their research. Why does Pima County disagree?
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- Will the site be designed to meet the 500-year storm, due to Pima County's
comments that the landfill poses "serious environmental consequences if the
landfill is flooded"?
- Will you take the financial responsibility for clean-up when contamination
happens?
- Will Marana amend development codes to develop the landfill?
- Are there issues for CAP proximity?
- Can a liner be trusted to protect our most precious resource, the largest
increasing water table?
IMAGE QUESTIONS
- Do we want the Accenture Golf attendees flying in to have a view of a landfill?
- Is risking the health, safety, and financial investments of residents worth
maximizing corporate and governmental profits?
STIGMATIZED PROPRTY VALUES
- Why consider research that does not answer "What is the effect of a NEW landfill
on existing residential property values located within 2 miles?"
TRAFFIC QUESTIONS
- How can Avra Valley accommodate heavy truck traffic when caution signs
already exist from Portland Cement?
- Will the Avra Valley road and I-10 intersection be upgraded?
- Is the bridge over the Santa Cruz adequate to support the increased traffic?
We ask that you deny this.
Alan Schuchter came forward to address the Commission. This is all about
conscience. Most of you folks on the Board, not all of you, but you will be decomposing
before anything comes of this proposed garbage dump. That is what we call it in New
York where I am from. Color coding it as a landfill, doesn't really work back there. But I
do live in Arizona and I moved here for a reason. I have got a heck of a conscience. If
you go and dump something in there with all of these people around, it is not going to be
a good thing. We live in Dune. I don't know if everybody has ever read Dune or
watched the movie, but Arizona is about as close it comes to Dune. We don't have a
natural resource of water. Tucson is built on a lake that is no longer a lake.
don't believe in saying never in regards to anything leaching into our water system.
Never say never. It will happen someday. You may not be around, but it will happen.
Anything made by human kind will break. I don't care how many liners you put in it, it will
break someday, probably sooner than later. Just look to your heart. Look deep into
your heart. Put this thing somewhere else.
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I give a lot of credit to the burrowing owls that live in that spot right now. They chose it
for a reason. They chose it because of their nocturnal activity at night. There is water
running through there. There are animals that they feed on at night. You talk about
relocating them, they will come back. That is all I have to say.
Phyllis Farenga came forward to address the Commission. I need the overhead.
I live in the incorporated Town of Marana. I represent Town voters who are opposed to
the landfill site on the Brawley Wash, the largest growing aquifer in Arizona within 6
miles of two economically viable airports and a potential 500 Year Floodplain. I am
asking you to delay.
I oppose this landfill because Marana cannot generate enough trash and must import
hazardous waste. Marana's special interest groups are in the process of getting a
double liner permit to import toxic waste. The HI zoning will enable incineration, sewer,
and industrial complex leaching fields to be constructed in the future.
Commission, Town Council Staff, DKL and The Planning Center have grossly neglected
to inform the Marana citizens and voters of the long term affects and dangers associated
with building an industrial waste complex on the Brawley Wash. Commission, Staff and
Council have relied too heavily on studies provided by a self serving lobbyist and a
special interest corporation calling itself The Planning Center. In doing so, they have not
protected the Marana taxpayers, citizens and voters.
What is this about conflict of interest and cronyism you do not get in this process? Let's
follow the money. In this case, let's follow the lobbyist. The money trail starts in 1992
when Herb Kai and Michael Racy are affiliated with the "Don't Waste Marana" campaign.
Now let's fast forward to the today. Racy, a lobbyist representing or affiliated with Vice
Mayor Herb Kai, Pima County, Town of Marana, The Planning Center and the most
infamous Saguaro Ranch, now in bankruptcy court with the Town of Marana Council for
open meeting law violations, witness tampering, civil rights violations, and false arrest of
American citizens, can you see the lack of moral compass and the hints of `Jim Crow'
associated with this group for putting a dump and high industry zoning within a
neighborhood that cannot .defend itself. The pro landfill agenda represents a lack of
social consciousness and pursuit of profit and personal gain. Marana's lasting legacy
will be unbridled pursuit of profit and a reckless disregard for human and animal life. I
ask this Commission not to cave in to the special interests and do the right thing for the
Marana people. Delay your vote. Do your homework. Give yourself time.
There is a lot of research. Outside research and studies are overwhelmingly against
putting an industrial waste complex in Brawley Wash between two economically viable
airports. There is a lot to read guys.
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Kim Smith came forward to address the Commission. The Marana Landfill is about 5
miles from my house. Besides the obvious nuisance of flying garbage smell, toxicity and
the lowering of land values, and dug 40 foot deep and then built up to 200 feet high, that
is more than two times higher than a cell phone tower creating a massive eye sore. It
will be on top of the larges aquifer in area. After how many years of layering, stamping
or compacting debris before the aquifer caves in. What guarantees that it won't? When
it happens 50 years down the road, then ghost towns Marana and Tucson are born.
How can you guarantee the existence of the burrowing owl right next a landfill? With
conservation in mind or not, you can't predict what will happen with nature destroyed by
something man made such as the landfill.
I have a common sense theory. Why not, utilizing the current studies that have already
been done to the area, build a recreational lake. Put Marana Arizona on the national
map as a recreational, educational destination and vacation site. Natural born jobs,
creation of small business in the area, such as boat rentals, bait and tackle shops, bed
and breakfasts, diners, campsites, etc. Supplementation of water to the aquifer below
through the natural process of seepage through the ground and run-off of monsoon
season water would get directed to go into the lake. The natural habitat of the
burrowing owl would become and education spot for schools and other groups to come
and enjoy. This too would also create jobs such as gift shops, eateries, etc. I think the
people of Marana would much rather see and help the area flourish than degrade. Herb
Kai can go from a zero to a hero with just a little common sense. I know I would like to
go to Kai Lake.
Pak Chan and wife came forward to address the Commission. My wife and I came out
from California today because we just found out that the land that we own is 1 foot from
the proposed landfill and we are opposed to it and want to register our opposition.
agree with the statements made by the other persons preceding us. I just want to bring
up one other point. It was mentioned that there will be a $20 million bond or insurance
policy against future claims. This landfill has a proposed lifespan of 50 to 70 years. I
would like ask you at the end of 50 or 70 years how much protection $20 million would
give you. Given the rate of inflation by that time it might be worth $200 thousand in
today's money. How will the Town of Marana be able to handle the lawsuit that comes
from contaminated water? If the operator cannot meet the commitment, then I think the
Town of Marana will be sued. I would caution the Town to give due consideration for the
proposal and don't act in haste as was pointed out earlier. The proposed life for the
landfill is 70 years, so what are 2 or 3 years delay to really carefully consider the project.
How would it hurt? Besides, the Tangerine Landfill has been extended to operate
another 10 years. With increased recycling of the waste product it will probably last for
more than another 10 years. It may be for 20 or 30 years, so there is no hurry. Please
take your time.
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Harvey Spindle came forward to address the Commission. I live right where the wind
from the dump blows into my back yard. I want you to know that I am opposed to this
dump. However, the wind is not my biggest concern.
I am sure you have heard the saying about `best laid plans of men and mice'. While I
have no doubt that you are good at what you do, otherwise you would not be on the
Planning Commission. I hope you will consider that what you do in the event that it
should fail, would affect not only you and the rest of us, but also can affect yours and our
children and grandchildren for a very long time. We already know that they are going to
use liners that are supposed to be leak proof, and yet they have failed in the past. Here
are the `best laid plans of men and mice'.
We also know the EPA says you cannot build a dump in a floodplain. Also we know
money may make some rules negotiable. We also know that you say you can divert the
floods by digging Brawley Wash deeper. Here I would like to mention a talented group
called the Army Corps of Engineers known for building locks on the Ohio River
controlling some flooding where I used to live. Still my family was run out by flood
waters even after the locks were built. They also built and planned the levies around
New Orleans to hold back the ocean, the ones that broke a few years back, destroyed
the city, contaminated the water and killed thousands. Here again the `best laid plans of
men and mice'.
Natural water supplies that flood are not controlled by man. They are controlled by God
and yet man can poison natural water supplies with ill laid plans. Gentlemen, I truly
hope you will consider what you as a Planning Commission are about to do if you
approve this. If their plan fails and they poison yours and our water, then may God have
mercy on all of our souls.
Ernie Felix came forward to address the Commission. I have listened to .all the
concerns and issues brought up by the opposition. I think Mr. Racy did a very good job
of addressing every single one in giving a substantiated answer to each one.
Based on what I have heard tonight I think a lot of the issues and concems are based on
emotion and not substantiated on facts. The facts have been addressed on all the
concerns. One issue I see will be wildcat dumping if you do not have a landfill in place.
This is going to absolutely result in all the negative concerns by everyone here tonight. I
actually applaud DKL on their forward thinking in responding positively to the
environmental issues here and being willing to invest economically into the community of
Marana and the Northwest Pima County region.
Questions coming from the audience...where does he live? Did you cash your bonus
check yet?
Chairman Fogel addressed the audience. Could we please have a little bit of decorum?
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In response to audience, Ernie could you please give us your address. Mr. Felix had
already left.
David Morales came forward to address the Commission. Before I get going on with
what I have prepared, I would just like to make a couple of comments. I hope I don't get
timed for this.
Chairman Fogel stated you have 3 minutes.
David Morales stated the City of Tucson is the oldest city in the United States. This is a
known fact. Congress is a dump, St. Mary's is a dump, Speedway is a dump, Grant is a
dump, Prince is a dump, and for whatever reason Cortaro got bypassed and Tangerine
became the first sanitary landfill of all these dumps. This is a fact.
This is my statement. I am not here to waste the Planning Commissions time or my time
because time is of essence. I am totally opposed to a dump in the Town of Marana.
This political body is not here to annex land for a dump; it is here to annex land for a
sanitary landfill. The word dump is a negative term meant to excite people's emotions. 1
totally agree with the people who do want a dump near them, however, words and their
moods are important at this meeting. For the record the Town is going to annex land to
build a sanitary landfill and not a dump. The Tangerine Sanitary Landfill is closing its
gates in the near future. This makes this issue a "timely" issue. We cannot afford to
have wildcat dumping in Marana.
There are two issues that have merit. The value of the properties will go down because
of a landfill. Has anybody noticed that the Town of Marana has a major specific plan
next to the Tangerine landfill and the community of Gladden Farms? Soon the
Tangerine will have a crossroad of shopping malls, commercial centers and auto malls
all next to a landfill. Why would so many smart developers invest millions of dollars in
this area of Tangerine? So I ask you will property values go down or up?
The third issue is contamination to land and aquifer. The design, building and running a
"sanitary" landfill are regulated by the State of Arizona which has a higher standard than
the Federal government. According to ARS 49-741:
49-741. Local public facilities for solid waste mans ec~ment
Each county, city or town shall:
1. Provide or otherwise ensure proper arrangements are made for public facilities at such intervals
and as conveniently as the governing body deems necessary for the safe and sanitary disposal of
solid waste generated within its jurisdiction...
So it is a State law that you have to provide a dump or should we say a sanitary landfill.
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Kris James came forward to address the Commission. I am here tonight to oppose the
rezoning of the Kai property between Avra Valley and Silverbell. I would like to talk to
you on health issues related to living around a solid waste landfill. Hazardous landfills
and solid waste landfills are similar in their ability to produce toxic gases. These toxic
gases are known to cause ill effects, particularly cancer in humans who are exposed for
extended periods. Landfills emit airborne toxins into the local environment. Lung cancer
has been higher around 38 landfills in the New York State Health Department Study.
Volatile organic compounds, which can cause cancer, were found escaping off-site into
the air from 25 of those landfills. There are many researched reports indicating gas and
toxins from landfills cause birth defects, lung, bladder, and stomach cancers as well as
other respiratory problems.
As the waste in the landfill decomposes, it breaks down into such things as methane,
smog causing volatile organic compounds and air toxic pollutants known or suspected of
causing cancer and other serious health effects. EPA rules will reduce emissions of
VOCs, air toxics and other compounds from existing and new landfills by over 90
thousand tons annually, but only about 4% of the existing landfills nationwide are subject
to the 1996 Clean Air Act having to comply with EPA regulations. I do not claim to be a
scientist in all of the toxins and regulations of solid waste landfills, but I do know about
cancer.
My daughter has fought cancer that has been caused by environmental toxins. Her
immune system has been compromised and her lungs have been compromised by the
treatments that she had to have with cancer. She is a prime candidate to get cancer
again when the air and water becomes polluted with these toxic chemicals from the
landfill. Mr. Racy, you cannot pay me $20 million for my child's life.
Rebecca Vorholzer came forward to address the Commission. I have lived here all of
my life and went to school in the Marana Unified School District. I am in favor of this
landfill. Without I think there will be an increase in wildcat dumping which you already
see down the washes, which will eventually contaminate our water. I think Mr. Racy on
behalf of DKL has provided more than. enough information to ensure the safety of the
people and the surrounding areas. I applaud DKL for trying to solve a problem which will
be a main concern of everybody if we do not have a landfill. Thank you and I hope you
pass this.
Anna Felix came forward to address the Commission. I was at the February Stn
meeting. I came out of that meeting supporting the landfill. Mr. Racy answered all
questions and answered everything regarding the environment. I think DKL is going
over and above to try to keep this community safe. All I am asking is to please pass
this landfill.
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I have another little comment. I ask if my views don't agree with yours.... Everything
was said a little while ago when my husband came up. There was no need for that.
He is just giving his opinion.
Richard Swartz came forward to address the Commission. I live in Silverbell West.
Everyone who has spoken previous to me has stolen all my power and my points. I
have one last item that was hit upon in a general way and I would like to point it out
again. It is a repeat. The State of Vermont years ago had the wisdom to take the tax
payers money and purchase land that they thought they could protect the environment
with. Not only the environment on the top of the land, but the water tables. We have
here a fine example. (Showed map reflecting State land surrounding the site) Right in
the middle of what the State's wisdom was to protect the land from misuse and the
water shed is something being proposed that is so contradictory to that philosophy, it
is hard for me to understand why they went to such effort to pick that place. There
must be several others and apparently a few years ago there were studies made in
other areas and for one reason given, was transportation of 25 miles, I wish they
would go the 25 miles rather than build a landfill of this magnitude in the middle of
what the State thought was so priceless and valuable to the people of the State, that
they bought it themselves. (Referred to the map again) In the report they mentioned
two wells that are affected and they are along the southern edge. There are other
wells. (Pointed out the Silverbell West Community) Our water comes from a well
which is approximately'/2 mile from the northern tip of the proposed landfill. Even
though they say they will never get to that point for 30 years, why bother to run the
risk. We have a lot of people, not just our community, but a lot of other people who
are depending on that water table for water. In the State's wisdom they protected
what they could. The other is agricultural land which is also a very good use of land.
Arlan Colton came forward to address the Commission. Siting a landfill is never the
easiest thing in the world and this is proving to be that in spades. I want to first say
that I am the Planning Director for Pima County. I have never appeared at the Town
of Marana before. It is an honor. I also want to say that I have the highest respect for
my professional colleagues at the Town and at The Planning Center and for Mr. Racy,
who I work with on a regular basis.
I have been asked to represent Pima County and present to you tonight, effectively
raising some issues for your consideration. Pima County did submit a whole series of
comments twice on each draft of the plan. I assume that you have that in your agenda
packets.
The importance of the specific plan for this project cannot be understated both in terms
of its content from a regulatory basis and the zoning conditions you recommended you
be placed on the project. I would encourage you to take the time, continue to ask
questions and ensure that if you are going to pass this specific plan through to the
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Marana Municipal Complex
Town Council, whether tonight or in the future, all your questions are answered and
you have the tightest regulatory framework you can for the project.
My friend Mr. Racy said this is land use and not the use of the property as a landfill. I
would probably submit that you cannot separate the use in this case from the land use.
That is why it becomes important. I also need to let you know, and as soon as I am
done I will hand these out, because some members of the public came to the Pima
County Board of Supervisors and spoke under `Call to the Audience' last week, I have
received some petitions which I have copies of for the Commission, Staff and the
applicant.
From the County's perspective, I am going to raise 6 points that have been covered in
different ways by different people; I am going to do it slightly different.
1) The issue of flooding in the Brawley Wash and where the Brawley Wash
links combine.
The point that I want to make is that while we know that according to
statutes solid waste facilities subject to ADEQ approval cannot be placed on
any site if any part of that facility within '/2 mile of a 100 year floodplain with
100 year flows in excess of 25,000 cfs. Regional flood control districts
simply cannot determine about the regulatory discharge and has asked
FEMA for their opinion on this. We are waiting on that.
2) This is one area that is fortunate to have rising levels of ground water, partly
because of agricultural retirement but also because of the replenishment
facilities and recovery facilities for ground water recharge.
It is important to make sure that as this area rises, which it will continue to
do at 4 to 5 feet per year. That needs to be addressed
3) The visual impact.
The first time I have seen the visual analysis was tonight. I would suggest to
you that it needs to be part of the specific plant document. Understand that
Los Reales Landfill at a 1,000 acres and this is at 590 acres. Los Reales
has 400 acres of disposal area and this has 430 acres. Los Reales at build
out will be 190 feet above surrounding grade. This will be a bit higher at 205
to 233 feet. I think including that in the specific plan would be important
4) The issues of the airport have been addressed, but I would hope you would
act once you get the opinions of both Marana's Airport Operator and Pinar
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Airpark's Operator. Pinal does actually rehab airplanes so they are suitable
for flying again. So there are operations out of there.
5) Finally address where the waste stream material is coming from and if there
is-going to be any limitations on where that should be. Put that in the
specific plan. We did not see it in there today. We will have a sense of what
kind of landfill this is going to be.
6) Traffic issue was not so much the quantity of vehicles that are traveling, but
it is the impact on the roadway system. That probably needs to be
addressed. That is an issue that will come about with the Traffic Impact
Study.
It is all important because arguably, while this is a minor amendment to the plan by
Marana standards, we all know that this is a major amendment for the area. It is truly
a change of land use and so it is technically a minor amendment, but you get one bite
at this apple in terms of making your best possible recommendation. You are not
necessarily going to deal with the annexation or development agreement, but you will
deal with the specific plan. Lots of those questions I think you know and will need to
get answers for.
Tim Bolton came forward to address the Commission. I am the principal planner for
the Arizona State Land Department. So far you have heard a lot tonight. I am not
here to reiterate what others have said. I am merely here to request a continuance of
this proposal for a period of 45 days in order the department to fully evaluate and
assess the potential impacts that this proposal may have on the 2,800 acres that
surround the property. That is all have to say.
Chairman Fogel closed the hearing to the public.
Five minute recess 9:52
Called the meeting to order again at 10:02
Chairman Fogel stated I am going to ask Michael to take as much as 10 minutes to
rebut anything.
Remarks coming from audience
Chairman Fogel asked the audience to please let us have some decorum.
Michael Racy came forward to address the Commission. I will try to do it in much less
time than that. Many of the issues that were brought up are issues that a lot of time
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was spent on them. I am going to talk about a couple of items brought up that were
good items.
Suggestion that it be designed to a 500 Year Flood instead of a 100 Year Flood, we
are doing that. We commit to that.
The references to Suzanne Shields letter Pima County Flood Control District; you
heard portions of the letter and not the whole letter. We concur with her letter. No
one, not the best hydrologist in the world can stand out on the site and definitively tell if
you are within'/2 mile of 25,000 cfs, until the studies are done. That is not a study that
is done at the zoning level. In fact, we have gone well beyond what is done at the
zoning level of examination. That is a study and a legal requirement for the Arizona
Department of Environmental Quality, the EPA, and the Corps of Engineers. We are
very confident we can meet that standard and if we can't, we never get a permit and
the project doesn't go forward.
Planes do fly out of Pinal, that doesn't make it scheduled air service. Planes fly in and
out of Marana, it doesn't make it scheduled air service. I have talked with the FAA
and with Mr. Burkhart and Bill Dunn. I work with Mr. Burkhart and Mr. Dunn regularly.
Their positions on this were misrepresented to you. They have no concerns with this
use and the Town has talked with the FAA and the Town Staff. They can speak to
that. If the FAA isn't satisfied during the permitting process, they will reject it and we
will know that. That is part of the permitting process.
The other items that Mr. Colton brought up such as flooding, I mentioned. Rising
water gets analyzed in that process as well including the visualization in the specific
plan is correct. The height of Los Reales is comparable and the buffers around this
one are actually more than the buffers around Los Reales. There are houses, peoples
and businesses much closer. It is much more of a Tangerine proximity than it is in this
case.
All the other issues are and can be conditions. This has been a thorough process and
has not been a rushed process. Our competitor would desperately like to slow the
process down. They completed zoning last year on their project. In their specific plan
it states on page 15 that they expect the facility to be partially or totally owned by Pima
County. It is in the Tortolita Fan. It is the same design, it's over the same aquifers,
and it presents the same risks. My understanding is that Pima County chose not to go
forward with that acquisition. The developer is in financial trouble. They have
shopped it to everyone in the industry in Arizona and have no purchasers. They have
economic viability problems. They have shopped it out of state to investors in New
York. I have had two clients of mine in the Phoenix area approached to invest in it.
Maybe they will get an investor. It was predicated on growth in Eloy, La Osa, and
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Casa Grande. It has all slowed down. It is too far out to be a viable solution for
northern Pima County.
Mr. Bolton of the State Land Department, that is State Trust Land, it is not preservation
land. It was given to the State when the State was incorporated. They sell it for
development. It has nothing to do with conservation or preservation. It may be used
for that and it may be used for anything else. They are a land owner like every other.
We will work with the State Land Department. We have a meeting with them on March
4th. I met with Mr. Jim Adams and talked with him quickly at the legislature two days
ago. We will continue to work with them, but we couldn't disagree more with the
suggestion that there should be a continuance, because that simply continues the
emotion and the misinformation. Let's get to the study, science and engineering. Let's
get Michael Racy out of it and Ron Asta out of it. Let's get all the emotion out of it and
let's get the Department of Environmental Quality, the EPA, County Flood Control,
Town Flood Control and the experts that permit this into the process. Thank you very
much for the amount of time you spent.
Commissioner Schisler stated it was mentioned that the $20 million insurance in 50
or 70 years build out wouldn't be enough. Has that policy been considered to add
inflation costs?
Michael Racy answered my guess is, we will verify it, that it would have an escalator
on it for anything with this kind of life, just as the bond has an escalator on it.
Commissioner Schisler asked the issue that Mr. Colton alluded to on the waste
stream, is that considered.
Michael Racy answered that is something that gets considered. There are federal
laws on that as well. This is being designed and permitted for waste from this region
and not to be transmitted in from out-of-state waste. It can't be hazardous. It is not to
be rail shipped in. It is not economically viable in this area. They do that in Boston
and Chicago. The transportation costs kill you in solid waste management. The 50
mile round trip to the Durham Wash Landfill kills it among other factors. This is not the
sort of facility where you will be shipping in wastes from distant regions and we can
address that.
Chairman Fogel stated we at this time restrict comments to the Commission. Is there
any further discussion?
Commissioner Pound stated I would like to say that this is strictly a recommendation
for a change in zoning and that is all.
Chairman Fogel clarified it is a recommendation to the Town Council.
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Commissioner Pound stated so it will go to the Town Council just change the zoning
and not to approve any kind of use or permits or to override any kind of regulations.
This is the first step in a long process with several regulatory agencies. The EPA, Air
Quality, FAA, and FEMA; you are dealing with a half dozen of federal and state
agencies. This is very limited in scope. That is my comment on this.
Commissioner Adragna stated I just wanted to make a comment about one of the
concerns I have. I have made no apologies or secrets about the fact that when we are
dealing with specifically zoning changes and the relation of those proposed changes
as they relate to the General Plan, I have always been very concerned about adjacent
uses and transitions from one use to another. Specific plans are obviously a little bit of
a different animal because you are basically deviating from the standard zoning and
actually coming up with a specific set of regulations relating to whatever is being
proposed. Obviously, when we hear these things, we usually get a presentation and
get some type of visual reference to show us what a project may look like, but in reality
we are actually dealing with the right to have that use and not an actual development
plan. That is done outside of our scope. As that whole conversation relates back to
this particular application, I would just bring to your attention that one of the main
focuses on the presentation Mr. Racy made was that it has been shown through
Glendale, Chandler and many other locations that a landfill tends to act as a catalyst
for other more intensive uses than what we have adjacent to this property, which is
rural residential. When you take the mindset that you have a particular piece of
property that is being zoned for a heavy industrial use, that one, in my mind is not real
compatible with how the General Plan deals with that adjacent land around it.
Obviously, it gets convoluted because we have got an annexation involved in it too.
But, if that in fact is the case and the way it was presented, it appears that it is and a
landfill is a catalyst for other types of industrial type uses, it seems like it is a tall order
to make an adjacency between a heavy industrial use and then a large stretch of rural
residential before we get all the way down Avra Valley Road to the airport where the
other big concentration of the industrial uses are. That is why I asked about
infrastructure and the plans for the road, electricity and water. It seems to me that until
you have some basic area that has been earmarked either through the General Plan
process or with specific plans overtime or whatever, it makes sense to cluster those
together until they become large enough that they can start spreading along a transit
corridor like Avra Valley Road or Tangerine or whatever the case may be. I am not
making a statement about whether this is the perFect place for it. I think you could
make an argument either way, but I would point out that the way the General Plan
sets, maybe this is one of those things that would be the beginning of actually creating
an industrial core to tie the airport and this together and start working from both
directions to come in. I don't know; we are not there yet. I would just think about that.
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Febru a r-~~ 24, 21110
Marana Municipal Complex
Motion to approve Case No. PCZ-09057 Marana Regional Landfill Specific Plan
subject to the recommended conditions by Staff Moved by Commissioner Billy
Schisler, Seconded by Commissioner Gary Pound
Roll Call Vote: 3-2 Motion passed (Commissioners Jeffrey Adragna and Michael
Wiles voted nay) (Vice Chair Marcia Jakab and Commissioner Tina Le Page-Wood,
excused)
Kevin Kish recommended another 5 minute break to allow people to leave so we are
not disrupted.
Chairman Fogel stated to the audience if you folks are interested in leaving, now is the
time to do it.
Five Minute Recess 10:15
Called the meeting to order again at 10:20
C. Commission Action
None
D. Informational Items
1. Budget Update Presentation by Gilbert Davidson
Thank you very much for allowing me and our Staff to present and talk about a very
important topic that we have been dealing with for the last couple of months and will
continue to up until the Town Council approves the tentative and final budget.
I want to take just a few minutes, I know it has been a long evening for you, to make
sure that you are fully briefed and aware of the challenge that the Town of Marana
faces as it relates to our budget. Tonight I am going to highlight how we are dealing
with it, the framework of our budget and how it works. I will do that in a remarkably
quick way. Then I will go over the steps moving forward.
The Town of Marana this past year and the Town Council created what is called the
Marana Strategic Plan. We have five focus areas that were approved, Commerce,
Community Building, Heritage, Progress Innovation, and Recreation. That is the
guiding document that basically designates where we are making investments for our
community and the types of things that we would like to see done within and
throughout the Marana community.
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Obviously, with the fiscal crisis that we face, we are not able to fund all of those things
at the level that we hope and expect. To help frame some of our decisions moving
forward with the budget we have put together and again the Council has set out three
parameters by which to make decisions.
First, we want to make sure we have a safe community. I don't think there is anyone
that would argue that we wouldn't want a safe community, maybe a criminal may not
want it. I think most of our citizens and our businesses want to ensure a safe
community.
By safety, it is not just our men and women in uniform, police officers that are
protecting us. While that is a very important part and is the public face of it, there is a
group of individuals within the Town that do a lot of work behind the scenes and that
would be our Public Works, Public Services, and Operations and Maintenance crew.
Every time that there is graffiti on wall and every time there is damage done by an
individual, that could enable others to start making there mark and damaging things
throughout the community. It is much like a cancer or disease that can spread to other
areas of the community. It is very important that those operations crews respond
quickly to blight and other things that take place so it begins to stop some of that.
The second area is making sure we have a clean community which is part of our
safety element. The Town of Marana works very hard to clean roadways. We are the
only jurisdiction within Pima County that spends money and staff time cleaning along I-
10. That is important to us. As people drive into our community and have first
impressions, we want to make sure it looks like we have taken pride and that we are
maintaining things. It is very important for our future.
The final thing is having a healthy community. The Town of Marana has invested
tremendously over the past number of years in the creation of different programs.
Parks and Recreation programs and any number of citizen outreach and community
wide events. We want to make sure that we maintain some element of that for the
future.
Quickly, to highlight how the budget works, we have obvious revenues. The top three
revenues for the Town of Marana are sales tax, state shared revenues (combination of
sales, income and other specialty taxes collected on behalf of the state and then
remitted back to the cities and towns) and then final category which is the largest
segment of our budget is licenses and permits. There is a host of other ones that add
into the mix.
With revenue you then have the expense side. We have it broken out by major
categories. General Government will tend to be the regulatory things we have to do as
a community, whether it is financial obligations and accounting commitments that we
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February 24, 2010
Marana Municipal Complex
have to make. The Planning and Zoning Commission is a good example. That is a
regulatory advisory body to the Mayor and Council and we have to have a function for
that. You also have public safety, highway/streets, economic development and the
other remaining part of the list.
If you look at the numbers at the bottom, our revenue is estimated for this next fiscal
year to be at about $27 million. The expense is a little bit higher. That is our first and
foremost part of the deficit that we have to deal with.
Add in one more piece of this puzzle that we have to solve as we move forward with
the creation of the Fiscal Year 2011 Budget. In the Town of Marana and this is for
any jurisdiction, when you have surpluses or more revenue coming in than what the
expense is, buying replacement vehicles, new computers like what we have used here
tonight, equipment like the stand or seats, when you have extra revenue you can
easily accommodate for those expenses. When we have the downturn that we are
facing, these items don't just go away, it is not as if we don't get to replace vehicles or
if something breaks we don't fix it, we still have that obligation, but it has not been
factored into the overall budget structure. That is why we have a structural imbalance
that adds another $1.1 million that we have to factor into this budget. In terms of the
overall expense, we are looking at almost $31 million dollars above what is estimated
at the $27 million to come in.
There is also one-time revenue that Town of Marana deals with. We have to also be
very cautious in how we utilize that. There is contracting sales tax that is collected. If
anew business moves into Marana and build a new building, that money is just one-
time. They are going to build the building once and we collect the money. We have to
be very careful that we are not hiring staff and not creating ongoing obligations that
wouldn't be matched by that particular revenue sources. Licenses and permits
through our development services and other areas again it is one time it is collected
and is not something we experience each year. Those one time expenses need to be
tied to things such as our capita outlay. When we build things like this building, we
have a debt obligation that we pay for. It is one time that we construct this facility and
need to make sure we match it with the appropriate revenue source. That is basically
how the structure of our local government is organized.
Taking that we have a deficit that we are facing for next year like most every other city,
town and state government across this nation, the Town of Marana has been very
aggressive in trying to deal with this up to this point. For the last fiscal year we have
reduced our General Fund budget by over $7 million. We have done that through
being very aggressive. We have been looking line by line at everything we could
possibly cut out of the budget. Our departments have been very creative in making
sure that we maintain the services, but yet reducing the expense. We have also held
or eliminated 39 positions in the past two years. This does begin to have an impact on
eyular Council Meeting -November 3, 2010 -Page 99 of 138 57
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Marana Municipal Cumplex
our staff's ability to provide the level of services that we have to the community. If you
think about it, when you eliminate a position many times that function has to get
spread out among other staff members. We are not paying people more or rewarding
them anymore, but we are giving them more work. That is something we have to be
very cautious with.
Something I am very proud about is that our Town employees and Council came
together and voluntarily contributed over $500 thousand back to the General Fund.
That is unheard of in local government where employees come together and give
money back to the general fund. I am very proud of that and as I have gone out and
talked to citizens they have been very impressed that the Town employees have rallied
and tried to help in anyway that they possibly can to save employees, services and
programs that we provide.
Through all that we have minimized the impact I believe to the services. I have not
received many notifications whether in a meeting or through email or phone call where
citizens have seen a major difference in how we have been operating. So whether it is
road maintenance, services, parks and recreation programs, there has been very little
impact in terms of what we have provided and how we have tried to manage that.
The General Fund Revenues by type are sales tax and state share revenues which
make up 91 % of the Town's budget. Correlating that to the expense, it goes to parks
and recreation program, public services, public works, operations and maintenance
and our police department.
Expenditures by department gives you a broad view where we have allocated
resources. The police department has been our major emphasis and rightfully so.
Almost 28% of our budget is being allocated to public safety efforts.
When you get into some or our smaller departmental units, many of them will have
very specific tasks such as the clerk's office, which is a statutory position for the Town
of Marana. We have to be very careful. We can only cut so much without
compromising their ability to do their job.
This is a daunting challenge. If you think back to the original slide where I showed the
deficit, doing just across the board cut is not going to cut it. We would severely impact
some of these smaller departments which have nothing more to take out. We are
going to have to be very careful, thoughtful, and creative in how we approach the $3
million to $4 million deficit that we are facing.
Like any organization government, non-profit or private sector, usually your greatest
investment is your human asset. That is the same for the Town of Marana. We have
hired very talented staff to do job and perform things for our community. Contracted
egular Council Meeting -November 2010 -Page 100 of 138
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Fcbruar~ 24, 2010
~~1arana 1Vlunicipal Complex
services are when we may not have the in-house capability and contracted out certain
things. That is one area we are looking at is how we can maybe bring that in-house or
rebid it to save additional funds.
This brings us back to how we move forward and frame the decisions that we are
going to have to make and they will be very tough decisions. Earlier this evening we
had an open house at Twin Peaks Elementary School. It was very well attended. We
heard over and over the value of our programs and what it means to people. The
Mayor and Council that were present were very open and honest about the decisions
we are going to have to make in that every employee and every one of our programs
and services is going to feel some affect of this budget crisis. We are going to do it in
away that I hope will be very responsible to the needs of our community. We are not
just thinking about today and reacting in a quick not well thought out way, we are
thinking how we do this so it positions Marana for a very bright future so that we have
a quicker recovery than other communities that may .not be taking the same approach.
The next step in our budget process is March 9~'. The Council will be having a budget
study session. I will be presenting them a larger framework of how we are going to
move through the budget and some of the key areas that we are going to be focusing
on. I won't be getting into any specific positions that will be eliminated, but we will be
talking about how we are going to move forward with it and have Council direction on
that.
After that, through the rest of March, April and May, staff at various times with Council
and community input will be developing the actual budget document. The tentative
budge will be in early June and then the final budget in late June. The. tentative
budget, for education purposes is the setting of the cap that is created. Once the
Council approves the tentative budget they can't increase it or add any more to it, but
they could decrease it. Then the final budget is what we work off of for the fiscal year.
We have provided and will continue to make sure we have as much outreach to
citizens as possible. I appreciated the opportunity to talk after such a long evening,
but if you do have ideas, if you hear from other residents and citizens of our
community, if they have ideas, they can email us at budget(a~marana.com. We have
been taking in a number of different good suggestions that we are following up on. We
have a web site that has budget information. If they want to know more about Marana
they can certainly look through our website. I am always available if you would like to
talk individually and set up an appointment. We can get into more of the mechanics of
the budget. I do appreciate the service that you provide to our community.
Commissioner Wiles asked about the Marana Senior Center.
egular Council Meeting -November 3, 2010 -Page 101 of 138 ~~
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February 24, 2010
Marana Municipal Complex
Gilbert Davidson responded I have heard a lot about the Marana Senior Center
tonight. It is a valuable program. It will continue to be a valued program for our
community now and well into the future. The program is not going to be eliminated.
We are going to be creative in how we operate it. We are going to be looking at
leases. We are going to be looking at costs. We are going to be hopefully trying to
engage the community with volunteers. We are going to be doing a whole bunch of
different things. Programs like that mean something to people and they perform a very
valuable service for individuals. We want to make sure that we continue to provide
some level of that.
Chairman Fogel stated the state and federal government are looking to sell some
assets. Maybe even the City of Tucson. Have we examined any of that possibility?
We looked at a project tonight where the land is owned by the city. Could that land
have been sold to a developer?
Gilbert Davidson answered different jurisdictions have different capabilities and
opportunities. The City of Tucson in reference certainly does have large land holdings
throughout the region. We unfortunately don't have large land holdings. We have
very limited land holdings that are specifically tied to such as this building and some of
our park facilities. So we wouldn't be in the same position to necessarily sell or lease
back any of those things. I am confident we will be able to do our budget in a different
way that wouldn't involve selling off what the community has purchased. I think that is
something certainly in the future as you acquire additional land and it is just sitting, that
you could leverage that. One thing we will be doing is any surplus equipment such as
vehicles or old equipment that we have, we will be looking to auction things off through
the appropriate venues that the state allows. We are exploring those things.
Thank you very much and if you do have questions and want to know morel am
always available.
E. Planning Activity Reports
1. Monthly Project Report February 2010
2. Subdivision Lot Report February 2010
IX. FUTURE AGENDA ITEMS
None
X. ADJOURNMENT
Motion to Adjourn, Moved by Commissioner Billy Schisler, Seconded by
egular Councit Meeting -November 3,2010 -Page 102 of 138 ~O
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Marana Municipal Complex
Commissioner Gary Pound -Motion passed unanimously. (Vice Chair Marcia
Jakab and Commissioner Tina Le Page-Wood, excused)
The meeting was adjourned at 10:38 P.M.
CERTIFICATION
1 hereby certify that the foregoing minutes are the true and correct minutes of the
Marana Planning Commission Regular Meeting held on February 24, 2010 and further
certify that a quorum was present.
x
Sandra L. Morrison
Planning Commission Secretary
Meeting Length 4 hrs 3 mins
eyular Council Meeting -November 3. 2010 - P2ge 103 of 1313 h l
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11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
Council Chambers, November 3, 2010, 7:00:00 PM
To: Mayor and Council Item A 2
From: Frank Cassidy ,Town Attorney
Strategic Plan Focus Area:
Not Applicable
Subject: PUBLIC HEARING: Ordinance No. 2010.19: Relating to Development; approving
and authorizing the Mayor to execute the Marana Regional Landfill Development
Agreement
Discussion:
Summary of Application
The Planning Center, representing DKL Holdings, Inc., is requesting approval of the Marana
Regional Landfill Development Agreement ("Landfill DA" or "DA") from the Town Council as
provided in Section 04.05.03.H of the Marana Land Development Code. The proposed Landfill
DA between the Town of Marana, DKL Holdings, Inc., and H. Kai Family NG1; L.L.C. is
intended to regulate the development of the proposed municipal solid waste landfill in the event
that the rezoning, associated plans and permitting for the landfill are approved by all reviewing
entities including the Town of Marana and the Arizona Department of Environmental Quality.
Request
The proposed Landfill DA is intended to be considered by the Marana Town Council in
connection with, and only upon approval of, the proposed Marana Regional Landfill Specific
Plan. The proposed DA is intended to promote and facilitate orderly and planned development of
the proposed Marana Regional Landfill, a municipal solid waste landfill proposed for 590 acres
of land located approximately one mile north of Avra Valley Road, one mile east of Trico Road,
and one half mile south of Silverbell Road in a portion of Section 1, Township 12 South, Range
10 East.
As currently proposed, the Landfill DA provides the owner/developer with certain assurances and
protection of rights that they will be able to proceed in accordance with existing policies and
regulations and the approved Specific Plan and Development Plan for a specified period of time.
In exchange, the Landfill DA provides the Town with the appropriate assurances from the owner
that development of the Marana Regional Landfill will comply with all plan approvals, terms and
conditions, and that certain promised community benefits and Town fees will be provided.
The proposed Landfill DA is consistent with the Marana General Plan and the Marana Strategic
Plan.
Regular Council Meeting -November 3, 201.0 -Page 104 of 138
Overview of Key Landfill DA Provisions
Although the specific terms of the Landfill DA speak for themselves, some of the key terms
include the following:
•Introduction: The current property owner and the developer are parties to the DA.
•Recital D: The DA is tied to the Marana Regional Landfill Specific Plan.
•9[2(f): The DA is effective after the developer acquires the property and final entitlements are
granted, and continues in effect throughout the operation life of the landfill.
•9[4(b): The DA terminates if the developer decides not to go forward with a landfill or if a
rezoning is sought for something other than a landfill.
•9[4(c): The developer may terminate the DA if the town materially changes the zoning without
the developer's consent.
•9[4(e): The town may revert the zoning from specific plan to RD-180 if the landfill is not open
before the 8th anniversary of the DA.
•9[5: Garbage must be hauled to the landfill by a designated truck route, and may not be
transported to the landfill by rail
•9[9: The landfill may not exceed 165 feet in height at its highest point, and may not have an
average height of more than 135 feet.
•9[10: Hazardous materials may not be disposed of at the landfill in violation of applicable federal,
state, and local environmental laws and regulations.
•9[11: The developer must control litter at and surrounding the landfill and along the designated
haul route, and must remedy town-identified litter problems by the end of the next business day
or pay the town its clean-up costs plus $1,000 for three violations within any 30-day period.
•9[18: The developer shall pay the town a host fee of 4°Io of the average charge per ton or not less
than $1.20 per ton.
•9[19: The developer is required to provide two free dump days per year for Marana residents and
households within county areas depicted on the map attached as Exhibit D.
•9[20: The developer will charge a $10 non-commercial flat fee for up to one ton of eligible waste,
adjusted upward with the CPI.
•9[21: The developer will provide four free roll-offs per year at the town's request anywhere in the
town or in the county areas depicted on the map attached as Exhibit D.
•9[22: The developer will provide the town 30 vouchers per year entitling the deposit of up to two
tons of eligible waste at no charge.
•9[23: With well owners' consent, the developer will sample the five domestic wells located
within two miles of the landfill during the year after final entitlements are obtained for the
landfill. Upon detection of any groundwater contamination at sample wells located on the landfill
site, the developer is required to sample the five wells annually until no contamination is detected
at the sample wells.
•9[25: Asix-foot chain-link perimeter fence is required to be installed 100 feet beyond the active
cell areas, and the balance of the site is required to be enclosed with afive-strand wire fence.
Regular Council Meeting -November 3, 2010 -Page 105 of 138
•9[27: Before opening day, the developer is required to slurry seal or overlay the approximately
six miles of Avra Valley Road located in the town limits, design and construct right-turn lanes at
Avra Valley and Sandario, and aright-hand turn lane on westbound Avra Valley at Sanders. At
the town's request, the developer shall install a traffic signal at Avra Valley and Sandario three
years after opening day.
•9[28: Before opening day, the developer shall design and construct any Brawley Bridge
improvements needed to maintain an 80,000 pound rating.
•9[30: The landfill is required to be open for commercial and non-commercial customers six days
a week including at least four hours on Saturdays, excluding holidays.
•9[31: The developer is required to maintain throughout the life of the landfill environmental
insurance of $20M aggregate, $lOM per incident.
•9[47: The DA requirements apply whether the landfill is developed by this developer or by
anyone else.
•Exhibit D: Map of the county areas included in the free dump days and neighborhood roll-off
program (see 9[9[19 & 21).
•Exhibit E: Map of the five domestic wells located within two miles of the landfill (see 9[23).
Overview of Key Ongoing Landfill DA Negotiating Points
The Landfill DA has been through many drafts and has been the subject of two Town Council
study sessions. The DA has been the subject of more Council, staff, and public comments than
can reasonably be covered here. Making no attempt to be exhaustive, staff identifies the
following key provisions receiving ongoing criticism, negotiation and discussion:
•The effective date and duration of the DA (see 9[9[2(f) and 3).
•The designated truck route(s) and the associated restrictions (see 9[5).
•The rail hauling prohibition (see 9[5).
•The adequacy of the hazardous waste provisions (see 9[9[2(i) and 10).
•The geographic area where litter control is required to occur (see 9[11).
•The amount of the host fee (see 9[18).
•The sufficiency of the environmental insurance and groundwater protection provisions (see 9[9[23
and 31).
•The perimeter fencing provision (see 9[25).
•The adequacy of the infrastructure provisions (see 9[9[26-28).
•The unincorporated county areas included in the free dump days and neighborhood roll-off
program (see Exhibit D).
Public Notification
The public hearing for this request was properly advertised and all property owners within 300
feet of the subject property were notified by mail of the proposed Landfill DA and date of the
public hearing.
ATTACHMENTS:
Name: Description: Type:
~ Ord approvng_the_Landfill_Development_Agreement ORD Approving Landfill DA Ordinance
(00021979). DOC
D DKL =M_ arana_=
_Development_Agree.ment_110...5.5298 20,_DOC Exh A to Ord: Landfill DA Exhibit
Backup
Regular Council Meeting -November 3, 2010 -Page 106 of 138
~ Application and_Consent..pdf. Application and Consent Material
~ PCM- Backup
10028_Marana Regional_Landfill_Development Agreement Location Map Material
(Location_Map),pdf
Backup
O Planning Commisso..n_Resolution 2.0..1.0-0.1_(sgned)..pdf Planning Commission Resolution 2010-01
Material
~ WS_BinaryComparson DKL-_Marana_-
_Developmen..t_Agreement_17_
(WS_BnaryComparison_DKL__Marana_- Comparison of current DA to version Backup
_Development_Agreement_17 P_Z Versio_n-DKL =Marana -Presented to Commission Material
_Development_Agreement_11055298_20~.pdf
Staff Recommendation:
Staff recommends adoption of Ordinance No. 2010.19 adopting the Marana Regional Landfill
Development Agreement if the Town Council approves the Marana Regional Landfill rezoning.
Commission Recommendation - if applicable:
A Public Hearing was held by the Town of Marana Planning Commission on September 29,
2010. The Commission passed and adopted Planning Commission Resolution 2010-01
recommending that the Town Council approve the Marana Regional Landfill Development
Agreement with five minor revisions and corrections. A copy of the Commission Resolution is
attached as part of the backup materials for this item. The Resolution's language is consistent
with the eventual findings, report, recommendation, and vote of the Planning Commission.
The version of the Marana Regional Landfill Development Agreement attached as Exhibit A to
Ordinance 2010.19 as presented by staff with the materials for this item incorporates all of the
revisions recommended by the Planning Commission except #4, which provided: "Delineate
commercially reasonable hours of operation (no earlier than 7:00 a.m.) (Paragraph 30.)" The
Developer consented to all of the other requested revisions. A comparison draft, showing the
revisions between the version of the development agreement presented to the Planning
Commission and the version attached as Exhibit A to the proposed ordinance, is included as part
of the backup materials to this item.
Suggested Motion:
If the Marana Regional Landfill rezoning is approved, staff recommends that the Town
Council move one of the following options:
OPTION 1: I move to adopt Ordinance 2010.19 as presented by staff.
OPTION 2: I move to adopt Ordinance 2010.19 as presented by staff, subject to the following
modifications (add as necessary).
Regular Council Meeting -November 3, 2010 -Page 107 of 138
MARANA ORDINANCE N0.201019
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE THE MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT
WHEREAS the Marana Town Council finds that the Marana Regional Landfill
Development Agreement is consistent with the Marana General Plan, applicable specific plans,
and relevant Town policies; and
WHEREAS the Marana Town Council finds that the Marana Regional Landfill
Development Agreement is in the best interest of the Town and its citizens.
NOW, THEREFORE, BE IT' RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The Marana Regional Landfill Development Agreement is hereby approved
in the form attached to and incorporated by this reference in this ordinance as Exhibit A.
SECTION 2. The Mayor is hereby authorized and directed to execute the Marana
Regional Landfill Development Agreement for and on behalf of the Town of Marana.
SECTION 3. The various Town officers and employees are authorized and directed to
perform all acts necessary or desirable to give effect to this ordinance.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 3rd day of November, 2010.
Mayor Ed Honea
ATTEST:
APPROVED AS TO FORM:
Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney
Regular Council Meeting -November 3, 2010 -Page 108 of 138
{00021979.DOC /}
MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into this _ day of ,
2010, by and among TOWN OF MARANA, ARIZONA, a municipal corporation (the "Town"), DKL
HOLDINGS, INC., a Delaware corporation ("Developer"), and H. KAI FAMILY NGI, L.L.C., an
Arizona limited liability company ("Seller").
RECITALS
A. Pursuant to the provisions of that certain Agreement for the Sale of Real Property and
Joint Escrow Instructions dated as of December 14, 2009 between Seller and Developer
(the "Purchase Agreement"), Developer has contracted to purchase from Seller that
certain real property located within Pima County, Arizona, more particularly described in
Exhibit A attached hereto and referred to as the "Property."
B. Developer intends to develop the Property as a municipal solid waste landfill and related
facilities known as the Marana Regional Landfill (the "Landfill") in accordance with the
Specific Plan (defined below) and this Agreement.
C. The parties acknowledge that the Landfill is consistent with the Town's General Plan and
Strategic Plan, as of the date this Agreement is executed [A.R.S. § 9-SOO.OS.B].
D. The Marana Regional Landfill Specific Plan was approved on , 2010 by
Ordinance Number (as amended or modified, the "S~ecific Plan").
E. The parties hereto desire to enter into this Agreement to set forth their understandings and
agreements regarding development and operation of the Landfill. This Agreement is a
development agreement within the meaning of and pursuant to A.R.S. § 9-500.05.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties
hereto, the parties agree as set forth below:
1. Incoruoration of Recitals and Exhibits. The forgoing recitals and all exhibits attached hereto
are incorporated by this reference as though. fully set forth herein.
2. Definitions. The following terms shall have the meanings set forth below whenever used in this
Agreement, except where the context clearly indicates otherwise:
(a) "ADEQ" means Arizona Department of Environmental Quality or any successor agency
of the State of Arizona exercising regulatory authority over the Landfill similar to that currently exercised
by ADEQ.
110 5298.20
Regular ~OUnGI Meeting -November 3, 2010 -Page 109 of 138
(b) "Base Index" means, for the CPI adjustment to the Vehicle Flat Fee under Section 20,
(i) for the first Review Date, the CPI for calendar month May of the calendar year immediately prior to
the first Review Date calendar year, and (ii) for each subsequent Review Date, the CPI for the calendar
month May of the calendar year of the prior Review Date.
(c) "Closing DaX" means the last day on which the Landfill is open to receive Waste.
(d) "Commercially Reasonable Efforts" means, when describing the required standard of a
party's expected conduct, the efforts that a reasonable and prudent person or entity in such party's
position and of substantially equivalent economic means as such party would undertake in such course of
conduct.
(e) "CPI" means the consumer price index compiled and published by the United States
Department of Labor, Bureau of Labor Statistics, designated Consumer Price Index -All Urban
Consumers (CPI-U) 1982 - 1984 = 100: area: West-Size Class A, or, if said consumer price index ceases
to be published and there is no successor index, a reasonably equivalent index published by an
authoritative third party mutually agreed upon by the Town and Developer, acting reasonably and in good
faith. The CPI for any date means the CPI last published before the calendar month that includes such
date. For reference, a current databases print-out of the Consumer Price Index -All Urban Consumers
(CPI-U) 1982 - 1984 = 100: area: West-Size Class A, All items is attached as Exhibit B.
(f) "Effective Date" means the date upon which all of the following have occurred:
(i) Developer has acquired the Property; (ii) the Property has been annexed by the Town and (iii) Final
Entitlements have been granted for the Landfill
(g) "Environmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, agreement, judgments, orders and decrees, now of hereafter enacted, promulgated, or
amended, of the United States, the State of Arizona, or Pima County relating to pollution, the protection
or regulation of human health, natural resources, or the environment, or the emission, discharge, release
or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances
or waste of Hazardous Materials in the environment (including, without limitation, ambient air, surface
water, ground water or land or soil).
(h) "Final Entitlements" means grant or issuance of all final, complete and unappealable
licenses, permits, approvals (including Zoning Approvals), authorizations and entitlements granted by
applicable governmental authorities and legally required for the development, construction and operation
of the Landfill, but excluding any license, permit, approval, authorization or entitlement whose grant or
issuance is contingent upon completion of construction of any building. or other improvements included in
the Landfill.
(i) "Hazardous Materials" means any substance which is or contains (i) any "hazardous
substance" as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1986, as amended (42 U.S.C. §§9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the
Resource Conservation and Recovery Act (42 U.S.C. §§6901 et seq.) ("RCRA") or regulations
promulgated under RCRA; (iii) radon gas; and (iv) any additional substances or materials which are now
or hereafter classified or considered to be hazardous or toxic under Environmental Requirements or the
common law, or any other Applicable Laws, but excluding any material that is permitted to be deposited
in the Landfill by ADEQ.
11055298.20
Regular Council Meeting -November 3, 2010 -Page 110 of 138
(j) "Net Tonnage" means all Waste that is deposited at the Landfill through the commercial
operation of the Landfill, including, without limitation, Waste deposited pursuant to Section 20, but
excluding only the following: (i) liquid or semi-solid Waste as determined by the ADEQ's Paint Filter
Test standard, or any replacement liquid test standard, (ii) Waste that is prohibited from receipt at the
Landfill by state, federal or local law, regulation, rule, code, ordinance, order, license, permit or permit
condition, including land use restrictions or conditions applicable to the Landfill, (iii) materials used for
daily cover or alternative daily cover, interim cover, final cover or Landfill infrastructure as approved
pursuant to applicable landfill permits and (iv) Waste which is received and deposited at the Landfill for
no or nominal consideration (e.g. any periodic free tipping day or other free or nominal rate disposal
program) other than Waste received from Developer or any of its affiliates.
(k) "Opening Day" means the first day on which the Landfill is open to receive Waste.
(1) "Operation Life" means the. period between Opening Day and Closing Day.
(m) "Review Date" means the first July 1 to occur following the first anniversary of the
Opening Day and each July 1 thereafter.
(n) "Ton" means a short ton, being 2,000 pounds.
(o) "Waste" means non-hazardous solid waste intended for final disposal in a landfill and not
for beneficial use, as defined in the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.
and implementing Arizona state law, and in accordance with Federal and Arizona state laws and the terms
of any permit, license, authorization, registration or consent issued, granted, given or otherwise made
available by any governmental authority applicable to the Landfill and the Property.
(p) "Zoning Approvals" means any and all local zoning approvals (including any special use
zoning, variance or plan approvals or amendments) necessary to permit the development and operation of
the Landfill.
3. Term. The term of this Agreement shall commence on the Effective Date and continue for the
Operation Life of the Landfill, unless terminated sooner as provided in this Agreement or extended by
mutual agreement. Termination of this Agreement shall not extinguish the covenants or agreements that
by their terms require performance after termination. Unless the parties otherwise agree in writing each
such covenant and agreement shall survive termination of this Agreement.
4. Termination.
(a) End of Term. In accordance with Section 3, this Agreement shall terminate at the end of
its term unless extended by mutual agreement of Town and Developer.
(b) Zoning_Chan es. If Developer elects by written notice to the Town not to proceed with
the Landfill or obtains rezoning of the Property to authorize a use other than the Landfill, this Agreement
will terminate. Changes in the Specific Plan that do not require a change in the land use zone do not
constitute rezoning for purposes of this Section 4.
(c) Specific Plan Changes. Changes in the Specific Plan or modifications to the Agreement
pursuant to Section 04.05.08 of the Town's Land Development Code that materially increase or otherwise
materially alter the Developer's obligations under this Agreement, unless allowed by amendment to this
Agreement as set forth in Section 46, shall, at Developer's option, terminate this Agreement. If
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Developer elects to terminate this Agreement pursuant to this Section 4(cl, Developer shall provide
written notice to the Town exercising Developer's termination right.
(d) Default. This Agreement may be terminated pursuant to Section 34 due to breach of this
Agreement and failure to remedy.
(e) Reversion. If the Opening Day does not occur by the eighth (8~') anniversary of the later
of (i) the parties' execution and delivery of this Agreement or (ii) Seller or Developer's receipt of the
Zoning Approvals, Town may schedule a public hearing to determine compliance with Developer's
schedule of development of the Landfill or to grant an extension of time or cause the Property to revert to
its former zoning classification in accordance with A.R.S. § 9-462.01(E). Upon reversion of the Property
to its former zoning classification, this Agreement shall terminate.
5. Designation of Truck Route; No Rail Spur or Hauling. Developer shall propose a single
designated commercial truck route for delivery of Waste to the Landfill for the Town's approval.
Developer shall establish and shall use Commercially Reasonable Efforts to collect non-compliance
charges to encourage commercial haulers to use such designated truck route. Notwithstanding the
foregoing, commercial waste collection trucks that service customers in the general vicinity of the
Landfill and deposit collected Waste at the Landfill shall not be required to follow such designated truck
route if doing so would interfere with such collection trucks' service routes in such general vicinity.
Developer shall not install a rail spur to or on the Property. No Waste shall be accepted at the Landfill
which has, to the knowledge of Developer, been transported by rail.
6. Applicable Law. Developer shall construct and operate the Landfill in accordance with
applicable Federal and State laws, rules and regulations (collectively, "Applicable Laws"). If the Federal
Aviation Administration requires a study of the Landfill activity on the Property in accordance with
Applicable Laws, Developer will conduct the study at Developer's sole cost and expense.
7. ADEQ Approvals. Developer, at its sole cost and expense, shall use Commercially Reasonable
Efforts to obtain all required permits and licenses and final approval of a municipal solid waste facility
plan from ADEQ that will allow that Property to be used as a municipal solid waste landfill and related
facilities, with terms, conditions and stipulations acceptable to Developer (the "ADEQ Approvals"). The
ADEQ Approvals shall be deemed to be "final" on the later of (a) the next business day after the
expiration of the time within an appeal could be filed regarding issuance of the ADEQ Approvals
provided that no such appeal was filed or attempted to be filed, or (b) if such an appeal is filed, the next
business day after the successful final conclusion of such appeal in favor of Developer.
8. Third Partv Reviews and Approvals. Developer, at its sole cost and expense, shall use
Commercially Reasonable Efforts to obtain the Final Entitlements; provided that Developer shall not have
to pay the Town's costs or expenses incurred in evaluating submittals in excess of the fees ordinarily
charged for evaluation of entitlements submittals.
9. Landfill Elevation and Height Limits. Notwithstanding any provision of the Specific Plan to
the contrary, once constructed, the maximum elevation of the Landfill shall not exceed 2,145 feet above
sea level (being 165 feet above the baseline elevation grade reference of 1,980 feet existing on the south
property line of the Property), and the average height of the Landfill shall not exceed 135 feet.
Notwithstanding the foregoing, grade changes outside of the Landfill footprint (including, without
limitation, screening berms, flood protection structures, stormwater basins, building pads and temporary
stockpiles) shall not be included in calculating the Landfill's compliance with the foregoing elevation and
height limits.
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10. Hazardous Materials. No Hazardous Materials shall be disposed of at the Landfill in violation
of Applicable Laws. Further, Developer shall not accept for disposal at the Landfill any Waste that is
categorized as "hazardous material" or "hazardous substance", or any equivalent designation, under the
Applicable Laws of any state outside of Arizona in which such Waste was generated.
11. Litter Control. Developer shall keep the Property in a neat and orderly condition and work with
the adjacent property owners to pick up litter on adjacent properties resulting from Landfill operations
during the Operation Life of the Landfill. Particular attention will be paid to the administration building,
scale area, public disposal area, perimeter fencing and drainage channels. Developer shall follow
applicable ADEQ regulations relating to cover governing the active disposal areas. Developer shall
appoint a litter control team to control litter and other foreign material emanating from the Landfill, and
shall assign extra personnel to litter control as needed, including in and around the Silverbell West
subdivision to the north of the State land adjacent to the Property. Developer shall ensure that disposal
operations are limited to the smallest area reasonably possible, consistent with safety, efficiency and litter
control, and are conducted to minimize wind-blown litter. Developer shall ensure that active disposal
areas within the Landfill are covered at the end of each work day. To promote litter-free operation,
especially in regard to traffic between the Property and the Avra Valley Road -Interstate 10 interchange,
Developer shall (a) establish requirements for haulers to cover and secure loads, including charging
uncovered load fees, (b) use Commercially Reasonable Efforts to collect uncovered load fees and to ban
haulers that chronically violate such requirements, (c) employ personnel to remove litter along the
Property access drive to Avra Valley Road on a regular basis, but not less than once every thirty (30)
days, and (d) employ personnel to remove litter along Avra Valley Road from the intersection of Avra
Valley Road and the Property access drive to the Avra Valley Road -Interstate 10 interchange, along
Airline Road and Lambert Lane adjacent to the residential property known as Happy Acres, and in and
around the above-noted Silverbell West subdivision, all on a regular basis, but not less than once every
thirty (30) days. If Developer fails to comply with such litter removal obligations, Town may delivery
written notice to Developer specifying such failure and demand that Developer commence litter removal
activity in accordance with this Agreement. If Developer fails to commence such litter removal within
one (1) business day of Developer's receipt of such notice, Town may engage Town personnel or third-
party contractors to complete such litter removal on Developer's behalf and invoice Developer for the
cost of such work, which invoice shall be payable by Developer within thirty (30) days of Developer's
receipt. In addition to such clean-up costs, Developer shall pay Town a fine of $1,000 upon the third time
within any thirty (30)-day period, and upon any additional time within such thirty (30)-day period, that
Town, exercising the foregoing right, engages Town personnel or third-party contractors to complete such
litter removal on Developer's behalf.
12. Town Review of Developer Compliance Under Agreement.
(a) Prior to the Opening Day, Developer shall notify Town in writing of Developer's
compliance with all of its obligations due to be performed under this Agreement prior to the Opening Day
and the date that Developer has scheduled for the Opening Day. Town shall have fifteen (15) days from
the date of its receipt of such notice to deliver Developer a written request for a meeting with Developer's
representatives and/or an inspection of the Property to confirm Developer's compliance with its pre-
Opening Day obligations. If Town delivers such written notice within such time period, Developer and
Town shall cooperate to arrange such meeting and inspection as soon as practicable and in any event not
more than fifteen (15) days after the date of delivery of Town's written notice to Developer. If Town fails
to deliver such written notice, Town shall be deemed to have waived its right to require such meeting
and/or inspection, in which event Developer shall be free to commence operation of the Landfill in
accordance with Developer's schedule; provided, however, that such waiver shall not limit any other
rights of Town under this Agreement or Applicable Law to oversee and inspect the operation of the
Landfill and Developer's other obligations hereunder.
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(b) Following the one-year anniversary of the Opening Day, Town may deliver written
notice to Developer requesting a meeting with Developer's representatives and/or an inspection of the
Property to confirm Developer's compliance with its post-Opening Day obligations under this
Agreement. Town may request such meeting and/or inspection once during the time period commencing
on the one-year anniversary of the Opening Day and expiring on the day before the five-year anniversary
of the Opening Day. During any five year period beginning with the five-year anniversary of the Opening
Day and each successive five-year anniversary of the Opening Day thereafter during the Operation Life,
Town may deliver written notice to Developer requesting a meeting with Developer's representatives
and/or an inspection of the Property to confirm Developer's compliance with its post-Opening Day
obligations under this Agreement; provided that Town shall not request more than one such meeting
and/or inspection during any such five (5) year period. If Town delivers any such written notice,
Developer and Town shall cooperate to arrange such meeting and/or inspection as soon as practicable and
in any event not more than thirty (30) days after the date of delivery of Town's written notice to
Developer. If Town fails to deliver a notice for the period in question, Town shall be deemed to have
waived its right to require such meeting and/or inspection of the Property until the next anniversary date
referred to above; provided, however, that such waiver shall not limit any other right of Town under this
Agreement or Applicable Law to oversee and inspect the operation of the Landfill and Developer's other
obligations hereunder.
(c) If, based on any meeting and/or inspection referred to in Section 12(a) or 12 b above,
Town determines that Developer is not in compliance with any of its obligations under this Agreement,
Town shall notify Developer in writing of such non-compliance, whereupon Developer shall have thirty
(30) days to correct such non-compliance before Town may find Developer to be in default under this
Agreement; provided, however, that if Developer reasonably requires more than thirty (30) days to correct
such non-compliance, Developer shall have such additional time as is reasonably necessary to correct
such non-compliance before Town may find Developer to be in default under this Agreement. Upon
Developer completing any such corrective work, Developer shall permit Town representatives to inspect
such work to confirm that such non-compliance has been corrected.
(d) Developer shall obtain prior to the Opening day, and shall maintain during the Operation
Life, a performance bond in the amount of $100,000 securing Developer's performance obligations under
this Agreement.
13. Operation Life Reporting; Closure Plan.
(a) Within thirty (30) days after the fifth (5"') anniversary of the Opening Day, and within
thirty (30) days after each successive fifth (5`") anniversary date thereafter, Developer shall deliver to
Town a written calculation of the remaining Operation Life of the Landfill, including an estimation of
available remaining volume in the Landfill. Further, within thirty (30) days after each anniversary of the
Opening Day during the last five (5) years of the Operation Life of the Landfill, Developer shall deliver to
Town a written calculation of the remaining Operation Life of the Landfill, including an estimation of
available remaining volume in the Landfill. Notification, in accordance with Section 35 of this
Agreement, of the intent to close the Landfill shall be sent to Town at least ninety (90) days in advance of
the anticipated Closing Day.
(b) At a minimum, Developer's operations of the Landfill shall (i) provide that perimeter
berms be seeded and vegetated with native plan material that closely resembles the surrounding desert
unless prohibited by ADEQ, (ii) provide for Developer to design and construct man-made habitats on the
Property for burrowing owl communities, which habitat design and construction shall be undertaken with
the cooperation and input of the ADEQ or Arizona state wildlife authorities, and (iii) include designs
intended to induce habitation by burrowing owl communities and other natural wildlife, as prepared with
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Regular CounGl Meeting -November 3, 2010 -Page 114 of 138
the cooperation and input of the ADEQ or Arizona state wildlife authorities, but subject to ADEQ landfill
closure regulations and other Applicable Laws.
(c) At the end of the Operation Life of the Landfill, Developer, at its sole cost and expense,
shall adopt a closure plan for the Property subject to approval by ADEQ following the requirements of
Applicable Laws for closure of municipal solid waste landfills. Developer shall be responsible for all
closure and post-closure costs and expenses.
14. Closure and Post Closure Financial Assurances. Developer shall provide financial assurances
for costs of closure and post closure care, as required by Applicable Laws.
15. Habitat Conservation Plan. Upon Town's adoption of a habitat conservation plan, and subject
to Developer's review and approval of such plan (acting reasonably), Developer shall enter into such
habitat conservation plan.
16. Dedication of East Branch of Brawlev Wash; Maintenance. Following the later to occur of
(a) Opening Day or (b) completion of necessary improvements to the Property and any adjoining
properties, including, without limitation, levees, berms, drainage and natural habitat restoration,
Developer shall give Town written notice that such applicable event has occurred and offer to dedicate to
Town the open space described in Exhibit C attached hereto and commonly referred to as the East Branch
of Brawley Wash. Following delivery of such notice, Town may deliver written notice to Developer of
Town's election to accept such dedication so long as such notice is delivered prior to the Closing Day. If
Town elects by written notice to Developer to accept such dedication, then (i) Developer shall thereafter
promptly undertake such actions at its sole cost to formally dedicate the East Branch of Brawley Wash to
Town subject to Developer reserving rights during the Operation Life to conduct periodic maintenance or
repair required on any berms, levees or other improvements made by Developer in or around the East
Branch of Brawley Wash. Developer shall undertake such periodic maintenance and repairs at its sole
cost, subject to being granted reasonable and timely access to the East Branch of Brawley Wash to
conduct such work during the Operation Life. If Town fails to give any written notice to Developer of
Town's acceptance of the dedication of the East Branch of Brawley Wash, Developer shall remain
obligated to undertake such periodic maintenance and repairs during the Operation Life.
17. Force Maieure. In addition to any specific provisions of this Agreement, the performance by
either party hereunder shall not be deemed to be in default where there is a delay in performance caused
by or resulting from war, insurrection, terrorism, strikes, lockouts, riots, floods, earthquakes, fires,
casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargos,
lack of transportation, governmental restrictions or priority, unusually severe weather, inability of any
contractor, subcontractor or supplier to perform acts for such party, acts or the failure to act of any public
or governmental agent or entity, litigation relating to the Property initiated by a third party other that
Developer or the Town, or any other causes beyond the reasonable control the party claiming an
extension of time to perform (each, a "force majeure event"), and the party affected by the force majeure
event gives notice to the other party after the occurrence of such event. In the event that any party to the
Agreement is unable or fails to perform due to a force majeure event and such party has given the notice
as provided above, then the time for the performance of the other party shall also be extended for a period
of time equal to the period of the delay plus a reasonable start-up period.
18. Host Fees.
(a) Developer shall pay the Town a "Host Fee" as set forth in this Section 18. The Host Fee
shall be paid for each calendar quarter during the Operation Life based on total Net Tonnage deposited at
the Landfill in such calendar quarter. The Host Fee shall be equal to four percent (4%) of the average
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Regular ouncil Meeting -November 3, 2010 -Page 115 of 138
charge per Ton of Net Tonnage that third-party customers of the Landfill pay to deposit Waste at the
Landfill during the calendar quarter in question multiplied by the aggregate Net Tonnage deposited at the
Landfill during such calendar quarter; provided, however, that in no event shall the Host Fee be calculated
at less than $1.20 per Ton of such Net Tonnage. The Host Fee shall only be payable in respect of
amounts actually collected by Developer and shall only apply to amounts charged for the deposit of
eligible Waste at the Landfill. Without limiting the generality of the foregoing, no Host Fee shall be
payable in respect of amounts collected by Developer from customers of the Landfill as fees, fines,
damages, penalties or other charges for such customers' failure to comply with Applicable Laws or
Landfill rules or to compensate or reimburse Developer for having to separate mixed Waste loads or
undertake other work or liability resulting from such customers' delivery to the Landfill of Waste that is
ineligible for deposit at the Landfill.
(b) Host Fee payments shall be made to the Town General Fund and transmitted to Town at
the address set forth in Section 35. In the event Developer fails to make payment within ten (10) business
days after receipt of written notice from Town that a specific payment was not timely made, Developer
shall, in addition to the required payment, pay a late fee of ten percent (10%) of the total amount due for
said quarter.
(c) Host Fees shall be calculated and paid by Developer to Town within forty-five (45) days
after the end of each calendar quarter in which such Host Fees are earned. Within forty-five (45) days
after the end of each calendar quarter, Developer shall deliver to Town a written report (a " uarterl
Report"), certified in writing by Developer as being true and correct, of (i) the Net Tonnage deposited at
the Landfill and (ii) Developer's determination of the quarterly Host Fee payment due under
Section 18(a) with respect thereto (the "Host Fee Determination"), as derived from Developer's review of
its operational, financial and other relevant books and records as of the end of such calendar quarter. The
Quarterly Report shall contain reasonable detail as to how the Host Fee Determination was made by
Developer, including details of any ineligible Waste processing costs under the neighborhood container
program referred to in Section 21 or the voucher program referred to in Section 22. In light of the
unpredictability of the available volumes of Waste, number of customers, future laws and regulations
and/or the business operations of Developer, Town acknowledges that Developer has not made any
representations regarding the volume of Net Tonnage or the amount of any Host Fees to be paid
hereunder. Developer specifically reserves the right to reject any Waste received at the Landfill.
(d) Developer shall retain for at least three (3) years accurate records of Net Tonnage
deposited at the Landfill for final disposal, including gate receipts. In addition to the Quarterly Reports,
Developer shall deliver to Town, from time to time, copies of all periodic reports filed by or on behalf of
Developer with the State of Arizona or any other applicable governmental body with respect to volumes
and types of Waste deposited at the Landfill.
(e) Developer shall install, operate and maintain at the Landfill, accurate and reliable scales,
certified by the Arizona Department of Weights and Measures. Such scales shall be kept in good
condition and repair at all times while the Landfill is open for business. Town shall have the right, in
connection with Town's review and audit rights referred to in Section 18(f), to test the accuracy of such
scales, provided that such testing does not unreasonably interfere with the operation of the Landfill.
Notwithstanding the foregoing, Developer may charge customers of the Landfill using methods other than
weight-based fees, including volume-based fees and flat fees determined in Developer's sole discretion,
provided that such alternative charge methods shall not affect the method for calculating the Host Fee
payable to Town as contemplated hereunder.
(f) From time to time, upon Town's written request, but not more frequently than once per
calendar year, Developer shall make its records applicable to calculation of the Host Fee Determinations
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Regular ~OUnGI Meeting -November 3, 2010 -Page 116 of 138
covering the record retention period set forth in Section 18(d) above available to Town for review and
audit by Town or Town's accountants or other representatives. If, following any such review and audit,
Town believes that any Host Fee Determination was improperly made, Town may give written notice
thereof to Developer, in which event Town and Developer shall promptly cause their respective
representatives to confer with each other with a view to resolving such matter in good faith. If the
representatives of Town and Developer are unable to resolve such matter within thirty (30) days after the
date of delivery of Town's notice to Developer, Town and Developer shall refer the dispute to a mutually
acceptable firm of independent certified public accountants (the "Independent Accountants") for final
determination. The Independent Accountants may request of Town and/or Developer such documents
and information as may be necessary or appropriate for proper determination of the matter, and Town and
Developer shall cooperate to promptly satisfy any such request. The determination by the Independent
Accountants of such matter shall be final and binding on Town and Developer, and may be enforced as an
arbitration award in the state or federal courts of Arizona. Town's out-of-pocket costs of conducting a
review and audit described above shall be borne by Town, unless the results of such review and audit, as
finally determined by agreement of Town and Developer or by the Independent Accountants, show that
Town was underpaid by more than five percent (5%) for the period under review, in which event
Developer shall reimburse Town all of such out-of-pocket costs and the costs of the Independent
Accountants upon presentation of receipts or other reasonable documentation thereof.
(g) Any Host Fee amount which, based on the separate agreement of Town and Developer or
a determination of the Independent Accountants, is payable by one party to the other shall be paid within
thirty (30) days after the agreement or determination and any such payment not timely paid in accordance
with this Section 18 shall bear interest at the rate of nine percent (9%) per annum until paid.
19. Free Public Access. On one Saturday in March and one Saturday in October (each, as selected
by Developer) during the Operation Life, Developer shall allow each Town household (and all
households not within the Town but which are located in the geographic area depicted on Exhibit D
attached hereto) to deliver Waste directly to a site designated by Developer at the Landfill free of charge.
Notice of each such free public access date together with terms for delivery of Waste consistent with this
Section 19 shall be published at least two (2) weeks in advance of such free public access date in a local
Marana newspaper reasonably acceptable to the Town. The costs of such notice shall be for Developer's
sole account. Waste delivered during these free public days shall be excluded from the calculation of the
Host Fees under Section 18. Developer shall be permitted to impose reasonable restrictions on such free
public access, including, without limitation, (a) a maximum of two (2) Tons per household per six-month
period (any amount not used in a six-month period shall not be carried forward to any succeeding six-
month period), (b) limit to two cars or pickup trucks per household per six-month period;. (c) individuals
presenting evidence (e.g., driver's license and utility bill) of residency within Town or within the area
depicted on Exhibit D, as applicable; or (d) prohibition of commercial vehicle capacity for delivery of
Waste. Residents shall pay the posted gate rate for any amount in excess of two tons per six-month
period.
20. Customer Vehicle Flat Fees. Non-commercial landfill customers shall be charged a flat fee of
$10.00 per non-commercial vehicle (the "Vehicle Flat Fee") for up to the first one (1) Ton of eligible
Waste deposited by such vehicle at the Landfill. Any Net Tonnage of Waste in excess of one (1) Ton
deposited by such vehicle shall be subject to Developer's posted gate rates in effect from time to time.
The Vehicle Flat Fee shall be subject to annual upwards adjustment by an amount equal to any positive
change in the CPI. On each Review Date, the Vehicle Flat Fee shall be increased by any positive
percentage change reflected in the CPI when compared to the applicable Base Index, rounded to the
nearest one (1) cent. The formula for such adjustment shall be as follows:
Adjustment amount = I + [(RDCPI - BI) / BI]
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Where: RDCPI =CPI existing on the Review Date; and
BI =Base Index
E.g. If the Vehicle Flat Fee in effect for cars prior to adjustment is $10.00, the most recently
reported CPI on the Review Date is 228.2 and the Base Index is 223.9, then the positive
percentage change between the Base Index and the CPI on the Review Date, i.e., 1 +
[(228.2-223.9)/223.9], is 1.0192%. The adjustment to the Host Fee is thus calculated as
follows:
$10.00 x 1.0912% _ $10.19205, rounded to $10.19.
Notwithstanding the foregoing, in no event shall any CPI-based increase in the Vehicle Flat Fee cause the
Vehicle Flat Fee to exceed the average per-Ton eligible Waste disposal cost charged to non-commercial
customers using solid waste landfills or transfer stations in the greater Tucson, Arizona metropolitan area.
To the extent such limitation applies to any CPI-based increase in the Vehicle Flat Fee, Developer may
not in any subsequent year's CPI-based adjustment to the Vehicle Flat Fee claim as part of such
adjustment the amount of any prior year's increase in the Vehicle Flat Fee that would have occurred but
for the application of this paragraph. In no event shall any CPI-based adjustment to the Vehicle Flat Fee
cause the Vehicle Flat Fee to decrease from one year to the next. In the event the CPI for a Review Date
reflects a negative percentage change when compared to the applicable Base Index, the Vehicle Flat Fee
for the then commencing year shall equal the Vehicle Flat Fee payable during the immediately preceding
year.
21. Neighborhood Container Program. During the Operation Life of the Landfill, during each
calendar quarter (a calendar quarter being each of January through March, April through June, July
through September, and October through December), upon the request of Town given at least fifteen (15)
days in advance, Developer shall arrange for up to four (4) roll-off containers to be placed in
neighborhoods determined by Town within Town limits and/or any neighborhood outside of Town limits
but within the geographic area depicted on Exhibit D attached hereto (not more than four (4) such
neighborhoods per calendar quarter) for individuals residing in such neighborhoods to dispose of Waste,
and Developer shall arrange for the retrieval of such containers when full and for the disposal of their
contents at the Landfill. The costs of providing and retrieving such containers and for disposing of their
contents shall be for the sole account of Developer; provided, however, that if Developer must remove
Waste from any such container based on such Waste not being eligible for disposal at the Landfill based
on Applicable Laws, and Developer's cost of such removal and disposal of such Waste at another facility
exceeds $1,000 per individual container or $2,000 in the aggregate for all containers in any calendar
quarter, Developer may credit its full costs of such removal and disposal of such Waste against Host Fees
payable to Town. If Developer exercises its right to credit such costs against Host Fees payable to Town,
Developer shall provide Town with receipts or other appropriate evidence of Developer's costs of such
removal and disposal of such ineligible Waste. No Host Fees shall be payable in respect of Waste
deposited at the Landfill from the neighborhood container program contemplated by this Section 21.
22. Town Voucher Program. Commencing on the Opening Day, for each calendar year of the
Operation Life of the Landfill (prorated in the first year for any partial calendar year), Developer shall
provide Town with thirty (30) vouchers, each voucher entitling the holder to deposit up to two (2) Tons of
Waste to the Landfill free of charge. Town shall have sole discretion as to the distribution of such
vouchers, provided that such vouchers may not be distributed or used for commercial benefit. Unused
vouchers from a particular calendar year shall expire at the end of such calendar year and may not be used
in any subsequent calendar year. A person depositing Waste at the Landfill under a voucher who exceeds
the two (2) Ton limit of such voucher shall pay the posted gate rate for any Net Tonnage in excess of such
limit. To the extent Developer must remove Waste from any such voucher-related deposit based on such
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Regular ~OUnGI Meeting -November 3, 2010 -Page 118 of 138
Waste not being eligible for disposal at the Landfill based on Applicable Laws, Developer may credit its
cost of such removal and its cost of arranging for proper disposal of such Waste at another facility against
Host Fees payable to Town. If Developer must relocate and dispose of Waste deposited at the Landfill
based on such Waste not being eligible for disposal at the Landfill based on Applicable Laws, Developer
may credit its full costs of such relocation and disposal of such Waste against Host Fees payable to Town.
If Developer exercises its right to credit such costs against Host Fees payable to Town, Developer shall
provide Town with receipts or other appropriate evidence of Developer's costs of such relocation and
disposal of such ineligible Waste. Waste deposited at the Landfill under a voucher shall be excluded from
the calculation of the Host Fees otherwise due the Town under Section 18.
23. Neighboring Ground Water Well Monitoring. If provided access to a source located prior to
any treatment such as a water softener, .Developer shall sample the five (5) domestic water wells
registered within two (2) miles down gradient from the Property listed on Exhibit E attached hereto. No
later than sixty (60) days following receipt of Final Entitlements for the Landfill, Developer shall send
written notice, to the address used by Pima County for sending tax bills, to the owner of each property on
which any of such water wells exist to determine if such owner wishes to have such water well sampled.
If any such property owner does not elect to have such well sampled by Developer by sending written
notice to Developer within thirty (30) days after Developer's written notice was mailed, Developer shall
not be required to sample such owner's well in the future. If such property owner elects to have
Developer sample such well and provides Developer with appropriate access to such well, Developer
shall gather enough samples to establish an adequate background sample set (at Developer's discretion)
from such well over a one (1)-year period in order to obtain a statistically valid background determination
of the quality of the water in such well. Developer shall provide the results of such sampling to the
property owner. Developer shall sample each such well for parameters that are deemed standard for State
and Federal landfill monitoring requirements and that are reasonably expected to be associated with
landfill-related constituents. After such initial sampling and during the Operation Life, if Developer's
sampling of its own test wells on the Property indicate that ground water contamination from the Landfill
is occurring, Developer shall sample each such property owner's wells on an annual basis (subject to
being granted appropriate access to such wells) until five years after Developer's sampling of its own test
wells on the Property indicate no further ground water contamination from the Landfill.
24. Town-Generated Waste. Developer shall allow Town to dispose of qualifying Town-generated
Waste eligible to be deposited in the Landfill at a rate equal to the lesser of (a) ninety percent (90%) of
the published gate rate on the date of deposit or (b) the lowest commercial vehicle rate actually charged
by Developer at the Landfill on the date of deposit. Town-generated Waste qualifying for such discount
shall mean Waste generated exclusively by Town and delivered in Waste delivery vehicles containing
only Town-generated Waste, as determined by Developer in its reasonable discretion. Town-generated
Waste mixed with other Waste shall not be eligible for such discount and Developer shall have no
obligation to separate Town-generated Waste from other Waste delivered to the Landfill.
25. Perimeter Fence. Prior to Opening Day, owner shall install a six (6) foot chain link fence on the
entire Southern perimeter boundary of the facility. A six (6) foot chain link fence on the western and
eastern perimeter boundaries will be built in phases. The first phase for both eastern and western
boundaries shall be constructed before Opening Day and will start at the southern boundary and extend to
the north one hundred (100) feet past the first active cell. Each phase of chain link fence there after will
be constructed to maintain a minimum of a one hundred (100) foot extension beyond the advancing
operation ultimately enclosing the entire site in chain link fence. The portion of the facility that has not
had chain link fence installed will have a five (5) strand wire fence as permitted by ADEQ. Prior to
Opening Day, signage stating "no trespassing" in Spanish and English shall be posted at least every one
hundred (100) feet along the entire perimeter of the Landfill site.
Regular Council Meeting -November 3, 2010 -Page 119 of 138 11
26. Property Access Intersection Improvements. Developer, at its sole cost and expense, shall
provide for the design and construction of certain improvements to the intersection of Avra Valley Road
and the Property access drive (the "Intersection Improvements"). The Intersection Improvements shall
include, but are not limited to: (a) a deceleration lane for each direction of travel on Avra Valley Road,
and (b) other road improvements deemed necessary by Town based on any traffic impact analysis,
drainage study or any other applicable study required by Town. Prior to construction of the Intersection
Improvements, Developer, at its sole cost and expense, shall submit to Town (i) an independent traffic
impact analysis, drainage study and any other study required the Town and (ii) plans and specifications
for the Intersection Improvements. Such studies, plans and specifications shall be subject to the approval
of Town, which approval may not be unreasonably withheld, conditioned or delayed. Construction of the
Intersection Improvements shall be in accordance with the applicable code requirements and standards of
Town. Developer shall commence and substantially complete construction of the Intersection
Improvements on or prior to Opening Day; provided that any delay caused or contributed to by Town,
including, without limitation, failure to timely approve the Intersection Improvements shall extend the
date for substantial completion by one day for each day of such delay. Developer agrees not to develop or
actively participate with any third party in the development of Silverbell Road for purposes of allowing
Silverbell Road to be used as a means of access to the Property.
27. Other Avra Valley Road Improvements.
(a) Following the second anniversary of the Opening Day, the Town may deliver written
notice to Developer requesting a traffic signal at the intersection of Avra Valley Road and Sandario Road,
Marana, Arizona; provided that such notice contains a traffic signal study conducted by the Town in
accordance with the latest edition of the Manual on Uniform Traffic Control Devices concluding that the
traffic signal is warranted. Developer shall design and install such traffic signal at the intersection of
Avra Valley Road and Sandario Road, Marana, Arizona on or before the one-year anniversary of deliver y
of the Town's notice requesting such signal.
(b) Prior to the Opening Day, Developer shall design and construct in accordance with Town
standards aright-turn lane on eastbound Avra Valley Road at Sandario Road and a right turn lane on
northbound Sandario Road at Avra Valley Road.
(c) Prior to the Opening Day Developer shall design and construct in accordance with Town
standards aright-turn lane on westbound Avra Valley Road at Sanders Road.
(d) Prior to Opening Day, Developer shall provide slurry seal and/or asphalt overlay on the
approximately six (6)-mile segment of Avra Valley Road between the current East Marana Town line and
the current West Marana Town line located just west of the proposed Landfill entrance as mutually agreed
to by Developer and Town based on findings of geotechnical report(s) to be obtained by Developer, at its
own cost and expense. If the section of Avra Valley Road from Interstate 10 to the current East Marana
Town line has not been improved by third parties prior to the Opening Day, then Developer shall provide
slurry seal and/or asphalt overlay on that section of Avra Valley Road not already improved prior to
Developer's slurry seal and/or asphalt overlay work.
28. Brawlev Bridge Improvement. Developer, at its sole cost and expense, shall provide for such
repairs and upgrading of the East Branch of the Brawley Wash Bridge on Avra Valley Road as are
necessary to maintain the current 80,000 pound rating for such bridge (the "Bridge Improvements").
Prior to construction of the Bridge Improvements, Developer, at its sole cost and expense, shall submit to
Town plans and specifications for the Bridge Improvements. Such plans and specifications shall be
subject to the approval of Town, which approval may not be unreasonably withheld, conditioned or
delayed. Construction of the Bridge Improvements shall be in accordance with the applicable code
iio s29s.zo 12
Regular ~ouncil Meeting -November 3, 2010 -Page 120 of 138
requirements and standards of Town. Developer shall substantially complete construction of the Bridge
Improvements prior to Opening Day; provided that any delay caused or contributed to by Town,
including, without limitation, failure to timely approve the Bridge Improvements shall extend the date for
substantial completion by one day for each day of such delay.
29. Use of Fox Easement. Following the Opening Day, if requested by the Arizona State Land
Department (including any successor department), Developer shall enter into an agreement with the
Arizona State Land Department to permit State or other third party vehicles to use the "Fox Easement
Area", as set forth in that certain Amended and Restated Easement dated November 30, 2009 (the "Fox
Easement") and recorded in the Office of the Pima County Arizona Recorder in Docket 13696, Page 174,
for purposes. of accessing State of Arizona grazing lands located on the east side of the access road to the
Property. Such use of the Fox Easement shall at all times be in compliance with the terms of the Fox
Easement and in common with Developer and any other parties permitted to use the Fox Easement Area,
shall not exceed the rights of Developer to the Fox Easement Area, and shall not unreasonably interfere
with Landfill access or operations.
30. Operating Hours of Landfill. Commencing on the Opening Day and throughout the Operation
Life, Developer shall cause the Landfill to be open to receive eligible Waste from commercial and non-
commercial customers during normal business hours at least six (6) days per week, including at least four
(4) hours on each Saturday, excluding recognized holidays.
31. Environmental Insurance. Prior to Opening Day, a pollution legal liability, environmental
impairment or other similar policy of insurance shall be in force covering the Property in an amount not
less than $20,000,000 aggregate, $10,000,000 each incident. Such insurance may have self insured
retention in excess of $1,000,000 but not more than $5,000,000 so long as Developer (a) provides a letter
of credit or bond in an amount equal to the self-insured retention amount, or (b) demonstrates to Town's
satisfaction (acting reasonably and in good faith) that Developer has current financial worth and/or
financial stability sufficient to satisfy such self insurance risk. Such insurance coverage shall remain in
force during the remainder of the term of this Agreement. On the tenth anniversary of the Opening Day,
and on each successive tenth anniversary thereafter prior to the Closing Day, Developer shall review the
adequacy of its insurance coverage, taking into account effects of inflation and industry standards for such
insurance. Developer may adjust its insurance coverage based on Developer's review; provided that
Developer may not reduce coverage below the limits set forth in this Section 31.
32. Conflict Of Interest. This Agreement is subject to the provisions of A.R.S. § 38-511.
33. No Personal Liability. No member, official or employee of the Town shall be personally liable
to Developer, or any successor or assignee, (a) in the event of any default or breach by the Town, (b) for
any amount which may become due to the Developer or its successor or assign, or (c) pursuant to any
obligation of the Town under the terms of this Agreement.
34. Default. It shall be a default hereunder if either party fails to perform or unreasonably delays
performing any of its obligations hereunder or otherwise act in accordance with any term or provision of
this Agreement and such failure or unreasonable delay continues for a period of sixty (60) days after
written notice from the non-defaulting party specifying in reasonable detail the nature of the failure or
delay and the manner in which such failure or delay may be satisfactorily cured. However, if the failure
or delay is such that more than sixty (60) days would reasonably be required to perform such action or
comply with any term or provision hereof, then the defaulting party shall have such additional time as
may be necessary to perform or comply so long as the defaulting party commences performance or
compliance within the cure period and diligently proceeds to complete such performance or fulfill such
obligation.
Regula~~(;ou9ncil Meeting -November 3, 2010 -Page 121 of 138 13
35. Notices. All Notices which shall or may be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly giving if (a) delivered personally to the party at the address set
forth below; (b) deposited in the United States Mail, certified return receipt requested, postage prepaid to
the party and addressed as set forth below; or (c) personally delivered or mailed in like manner to such
other address as either party hereto may designate in writing.
If to Developer: DKL Holdings, Inc.
Attention: Larry D. Henk
4050 W. Ray Road, # 17
PMB 209
Chandler, Arizona 85266
Fax: (480) 419-3543
If to Town: Gilbert Davidson, Town Manager
Marana Municipal Complex
11555 W. Civic Center Drive
Marana, Arizona 85653
Fax: (520) 382-1998
With a copy to: Frank Cassidy, Town Attorney
Marana Municipal Complex
11555 W. Civic Center Drive
Marana, Arizona 85653
Fax: (520) 382-1998
Either party may designate any other address for this purpose by written notice to the other party in the
manner described herein. Notices shall be deemed given and received on the date personally delivered or
two (2) business days after being mailed.
36. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona.
37. Conflict. In the event of any conflict between the terms of this Agreement and the Specific Plan,
the terms of this Agreement shall govern.
38. Successors and Assigns. The Developer's rights and obligations hereunder may only be assigned
to and assumed by a person or entity that has either (a) acquired the Property or (b) assumed Developer's
contractual right to acquire the Property and, in either case, only by a written instrument, recorded in the
Official Records of Pima County, Arizona expressly assigning and assuming such rights and obligations.
Developer shall send notice of such assignment and assumption in accordance with Section 35 to the
Town, but such assignment and assumption shall not be subject to the Town's consent. All of the
provisions hereof shall inure to the benefit of and be binding upon the successors and assigns. This
Agreement is not binding upon any subsequent municipality that may annex or incorporate the Property.
39. Third Parties. No term or provision of this Agreement shall be for the benefit of any person or
entity not a party hereto, and no such other person or entity shall have the right or cause of action
hereunder.
40. No Agency Relationship, No Partnership or Joint Venture. Developer shall not in any way
exercise any portion of the authority or sovereign powers of the Town and shall not make or contract or
commit. or in any way represent itself as an agent for the Town. This Agreement shall not create any
i io sz98.zo 14
Regular ~OUnGI Meeting -November 3, 2010 -Page 122 of 138
agency relationship between Developer and the Town. Under no circumstances shall the parties hereto be
considered partners or joint ventures.
41. Waiver. No delay in exercising any right or remedy shall constitute a waiver. No waiver by
either party of any breach or default of any of the terms, covenants or conditions of this Agreement shall
be construed or held to be a waiver of any succeeding or preceding breach or default of the same or other
term, covenant or condition herein contained.
42. Headings. The headings for the Sections of this Agreement are for convenience and reference
purposes only and in no way define, limit or describe the scope or intent of said Sections nor in any way
affect this Agreement.
43. Attornevs' Fees. In the event it becomes necessary for either party to this Agreement to employ
legal counsel or to bring an action at law or other proceedings to enforce any of the terms, covenants or
conditions of this Agreement or defend any action related to this Agreement, each party be responsible for
its own attorneys' fees.
44. Severability. In the event that any term, phrase, clause, sentence, paragraph, section, provision
or other portion of the Agreement shall become illegal null or void or against public policy, for any
reason or shall be held by any court of competent jurisdiction to be illegal, null or void or against public
policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in full
force and effect to the fullest extent permitted by law.
45. Recordation. This Agreement shall be recorded in the Official Records of the County Recorder
of Pima County, Arizona, not later than ten (10) days after its full execution. Once the requirements of
the Agreement have been fulfilled, either party, upon request of the other party, will record an
acknowledgment of the fulfillment of the terms hereof and termination of this Agreement.
46. Amendment to Agreement. No change of addition is to be made to this Agreement except by
written amendment executed by Town and Developer. Within ten (10) days after approval and execution
of the amendment to this Agreement, the amendment shall be recorded in the Official Recorder of the
County Recorder of Pima County, Arizona.
47. Seller Consent. By executing this Agreement, Seller hereby acknowledges that it is aware of and
consents to Developer's undertaking and performance of Developer's obligations under this Agreement..
Notwithstanding any other provision of this Agreement to the contrary, the parties agree that if Developer
fails to complete its purchase of the Property pursuant to the terms of the Purchase Agreement due to a
material default of Seller under the Purchase Agreement or a failure of any of Developer's closing
conditions set forth in the Purchase Agreement, Developer may elect in its sole discretion, as evidenced
by written notice delivered to Town, to terminate its development of the Landfill and all of its obligations
under this Agreement. If Developer exercises such termination right, Developer shall be immediately
relieved of its obligations under this Agreement. Thereafter, if Seller or any other third party undertakes
to proceed with the development of the Property as a solid waste landfill (whether as contemplated by this
Agreement or otherwise), Seller or such other third party's development of the Property shall be subject
to this Agreement, with Seller or such third party having the obligations of the "Developer" hereunder.
48. Authori Each of the parties represents and warrants to the other that the persons executing
this Agreement on behalf of the respective parties are authorized and empowered to bind the party on
whose behalf each such individual, in his/her official capacity, is signing.
110 5298.20 1 S
Regular ~ounal Meeting -November 3, 2010 -Page 123 of 138
49. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations,
negotiations and understandings of the parties hereto, oral or written, pertaining to the subject matter
hereof are hereby superseded and merged herein.
[Signatures on Following Page]
I10 5298.0 16
Regular ~OUnGi Meeting -November 3, 2010 -Page 124 of 138
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of
the Effective Date.
TOWN OF MARANA, ARIZONA, a municipal
corporation
By: _
Name:
Title:
Attest:
Marana Town Clerk
Approved as to Form and Within the Powers and
Authority Granted under the Laws of the State
of Arizona to the Town of Marana
Marana Town Attorney
STATE OF ARIZONA )
ss.
County of )
This agreement was acknowledged before me this _ day of , 2010, by
,the of the Town of Marana, a municipal
corporation, on behalf of the Town of Marana.
Notary Public
My Commission Expires:
Regular CounGl Meeting -November 3, 2010 -Page 125 of 138 1 ~
DKL HOLDINGS, INC., a Delaware
corporation
STATE OF ARIZONA )
ss.
County of )
By: _
Name:
Title:
This agreement was acknowledged before me this _ day of , 2010, by Larry
D. Henk, the President of DKL Holdings, Inc., a Delaware corporation, on behalf of DKL Holdings, Inc.
My Commission Expires:
STATE OF ARIZONA )
ss.
County of )
Notary Public
H. KAI FAMILY NG1, L.L.C., an Arizona
limited liability company
By:
Name:
Title:
This agreement was acknowledged before me this _ day of , 2010, by
Herbert Kai, the Manager of H. Kai Family NGI, L.L.C., an Arizona limited liability company, on behalf
of H. Kai Family NG 1, L.L.C.
My Commission Expires:
Notary Public
i io55sz9s.zo 18
Regular c;ounGl Meeting -November 3, 2010 -Page 126 of 138
EXHIBIT A
PROPERTY
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110 5298.0
Regular ~ounal Meeting -November 3, 2010 -Page 127 of 138
EXHIBIT B
CPI DATABASE PRINT-OUT
Consumer Price Index -All Urban Consumers
Original Data Value
Seriesld: CUURA400SAO,CUUSA400SA0
Not Seasonally Adjusted
Area: West- Size Class A
Item: All items
Base Period: 1982-84=100
Years: 2000 to 2010
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oet Nov Dec Annual HALF? HALF2
2000 172.3 173.4 174.9 175.2 175.5 175.8 176.8 177.6 178.4 179.0 178.8 179.0 176.4 174.5 178.3
2001 180.1 181.3 182.0 182.5 183.4 184.4 184.2 184.1 184.7 184.6 184.3 183.5 183.3 182.3 184.2
2002 184.4 185.4 186.2 187.2 187.5 187.2 187.4 187.9 188.2 188.4 188.4 188.0 187.2 186.3 188.1
2003 189.2 190.9 192.1 191.7 191.2 190.9 190.9 191.7 192.3 191.9 191.0 190.6 191.2 191.0 191.4
2004 191.7 193.2 194.5 194.6 195.9 195.9 195.4 195.5 196.4 197.5 197.6 196.5 195.4 194.3 196.5
2005 196.7 198.3 199.8 201.3 201.5 200.5 201.3 202.4 204.5 205.4 204.2 203.0 201.6 199.7 203.5
2006 204.7 205.7 206.8 208.6 210.3 209.5 210.0 210.7 211.3 210.5 209.7 209.6 209.0 207.6 210.3
',2007 211.102 212.549 214.393 215.540 216.640 215.901 215.855 215.825 216.429 217.314 218.196 218.020 215.647 214.354 216.940
12008 219.036 219.799 221.997 222.689 224.704 226.767 227.562 226.541 225.910 224.967 220.925 218.698 223.300 222.499 224.101
2009 219.806 220.955 221.124 221.790 222.659 223.908 223.498 224.072 224.412 224.372 223.489 223.058 222.762 221.707 223.817
2010 223.852 223.989 224.636 225.040 225.571 225.291 224.730
11055298.0
Regular Council Meeting -November 3, 2010 -Page 128 of 138
EXHIBIT C
BRAWLEY WASH DESCRIPTION
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• ~ - ~ ~' LANDFILL .
lCatlOn area Will be _ ` BUFFER & ANCILLARY AREA {
~I design during the ~ ° •°~ OPEN sPACE ;
_~> STORMWATER BASIN ;~
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110 5298.0
Regular ouncil Meeting -November 3, 2010 -Page 129 of 138
SAM
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110 5298.0
Regular ouncil Meeting -November 3, 2010 -Page 130 of 138
EXHIBIT E
SAMPLING WATER WELLS
LEGEND
Site Boundary
3~, -.! Township, Range & Section Lines c ~ 75t DE91's
Jurisdiction Boundary
Sampling Water Wells
Reg. No. Owner Name Well Type
598424 DONALD MELOCHE EXEMPT
506352 EARLEY,W W EXEMPT
611183 HICE, CHARLES & MARY, EXEMPT
805125 MANCINI, VITTORIO,E EXEMPT
618391 KAI JR,H NON-EXEMPT
Norzrr. c' 1 eoo ~~
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FILE NAME DKL-Ol_privr~}e_gw_wellsmxd
SOURC[ Pimo County GOT GIS. 2010
Regul~76,~o3q$c~bMeeting -November 3, 2010 -Page 131 of 138
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Regular Council Meeting -November 3, 2010 -Page 132 of 138
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Regular Council Meeting -November 3, 2010 -Page 133 of 138
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Marana Regional Landfill
Development Agreement
CASE PCM-10028
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Request o 3250 6500 ft. N
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A request by The Planning Center, representing DKL Holdings, Inc., for approval
of the Marana Regional Landfill Development Agreement.
Data Disclaimer: The Town of Marana provides this map information 'As Is' at the request of the user with the understanding that is not guaranteed to be acxurate,
correct or complete and conclusions drawn from such information are the responsibility of the user. In no event shall The Town of Marana become liable to users of these
data, or any other part~~tty~h, for any loss or direct, indirect, special,incidental or consequential damages, including but not limited to time, money or goodwill, arising from the
user ~arif~ tianG~ffNeetin ' -November 3 2010 - Pa a 134 of 138
MARANA PLANNING COMMISSION
RESOLUTION N0.2010-01
A RESOLUTION OF THE TOWN OF MARANA PLANNING COMMISSION, MAKING A
WRITTEN REPORT AND RECOMMENDATION TO THE MARANA TOWN COUNCIL
CONCERNING THE PROPOSED MARANA REGIONAL LANDFILL DEVELOPMENT
AGREEMENT, MAKING FINDINGS IN CONNECTION WITH THE PLANNING
COMMISSION'S DECISION AND RECOMMENDATION, AND AUTHORIZING THE
CHAIR TO PRESENT THE PLANNING COMMISSION'S FINDINGS AND
RECOMMENDATION TO THE TOWN COUNCIL.
A. Report. The Marana Planning Commission hereby reports to the Marana. Town Council, as
follows:
1. The Marana Regional Landfill Development Agreement (sometimes referred to in this
resolution as the "Landfill DA" or "DA"} was brought for consideration before the Marana
Planning Commission at its regular meeting on September 29, 2010.
2. The agenda materials for the September 29 Marana Planning Commission regular
meeting included the following:
a. A draft of the proposed Landfill DA identified by the number "11055298.16" in the
footer, including Exhibit A (a map and legal description of the property), Exhibit B (table
entitled "CPI Database Print-Out"), Exhibit C {a depiction of the proposed landfill
overlaid on an aerial .photograph, entitled "Brawley Wash Description"}, Exhibit D (a
map overlaid on an aerial photograph, entitled "Map for Free Public Access and
Neighborhood Container Program"), and Exhibit E (a map overlaid on an aerial
photograph, entitled "Sampling Water Wells" and containing a list of five wells).
b. A staff report providing a summary of key terms and provisions of the Landfill DA,
an overview of the key ongoing Landfill DA negotiating points, and an explanation of the
Planning Commission's role in reviewing and making a recommendation concerning the
proposed Landfill DA.
c. Astaff-prepared draft of Marana Planning Commission Resolution No. 2010-O1.
3. The Marana Planning Commission held a public hearing on the proposed Landfill DA,
where representatives of the developer, DKL Holdings, Inc., and eight members of the public
provided comments and feedback relating to the proposed Landfill DA.
Regula~~~~r~~ November 3, 2010 -Page 135 of 138 _ 1 _ 9/29/2010 8:20 PM FJC
B. Findings. Based on the documents provided in the record, the staff report, and the public
testimony, the Marana Planning Commission makes the following findings:
1. The proposed Landfill DA will promote and facilitate orderly and planned development
of the proposed Marana .Regional Landfill, a municipal solid waste landfill proposed for 590
acres of land located approximately one mile north of Avra Valley Road, one mile east of
Trico Road, and one half mile south of Silverbell Road in a portion of Section 1, Township
12 South, Range 10 East.
2. The proposed Landfill DA provides the owner and ~ developer with certain assurances
and protection of rights that they will be able to proceed in accordance with existing
applicable laws, regulations, and policies and in accordance with the Marana Regional
Landfill Specific Plan and Development Plan as they are currently proposed and are pending
consideration by the Marana Town Council.
3. The proposed Landfill DA will provide the Town with appropriate assurances from the
owner and developer that development of the Marana Regional Landfill will comply with all
plan approvals, terms, and conditions, and will comply with all applicable federal, state, and
local laws and regulations.
4. The proposed Landfill DA will provide the Town with certain appropriate community
benefits and fees.
5. The proposed Landfill DA is consistent with the Marana General Plan and the Marana
Strategic Plan.
C. Recommendation. Based on the foregoing report and findings, the Marana Planning
Commission recommends that, if the Marana Town Council approves the Marana Regional
Landfill Specif c Plan, the proposed Landfill DA be approved with the following corrections and
revisions:
1. Define "commercially reasonable efforts."
2. In paragraph 11, expand the litter control requirements to include the Silverbell West
neighborhood.
3. Paragraph 23 should be revised to require the five identified surrounding wells to be
monitored for a period of five years after the onsite monitoring wells indicate no groundwater
pollution.
4. Delineate commercially reasonable hours of operation (no earlier than 7:00 a.m.).
(Paragraph 30.)
5. The words "this Section 30" at the end of paragraph 31 should be revised to read "this
Section 31."
D. Authorization. The Marana Planning Commission hereby authorizes Norman Fogel, the
Chair of the Planning Commission, to present the Planning Commission's findings and
recommendations at one or more Marana Town Council meetings regarding this matter.
Regula{r ir~~ November 3, 2010 -Page 136 of 138 _ 2 _ 9/292010 8:20 PM FJC
PASSED AND ADOPTED BY THE PLANNING COMMISSION OF THE TOWN OF MARANA,
ARIZONA, this 29~' day of September, 2010, on a vote in favor, none opposed, and one
absent.
rman Fogel, Chair
ATTEST:
Terri Byler, 'ng Secretary
Regula~0~~l~rjg1~ November 3, 2010 -Page 137 of 138 _ 3 _ 9/29/2010 8:20 PM FJC
Document comparison by Workshare Professional on Wednesday, October 27, 2010
5:27:56 PM
Input:
file://C:/Documents and Settings/fcassidy/My
Document 1 ID Documents/DKL -Marana -Development Agreement 17
PZ Version.doc
Description DKL -Marana -Development Agreement 17 PZ Version
file://C:/Documents and Settings/fcassidy/My
Document 2 ID Documents/DKL -Marana -Development
Agreement 11055298 20.DOC
Description DKL -Marana -Development Agreement 11055298 20
.Rendering set standard
Redline Summary:
No. Change Text
1-2 Insertion {d) "Commercially...such course of conduct.
3 Change ~"`CPI" means the consumer price index" changed
to "(d) "CPI" means the consumer price index"
4 Change ""Effective Date" means the date" changed to "(e)
"Effective Date" means the date"
5 Change ""Environmental Requirements" means" changed
to "(f) "Environmental Requirements" means"
6 Change ""Final Entitlements" means grant" changed to
"(g) "Final Entitlements" means grant"
7 Change ""Hazardous Materials" means any" changed to
"(h) "Hazardous Materials" means any"
8 Change '~"Net Tonnage" means all Waste that" changed to
"(i) "Net Tonnage" means all Waste that"
9 Change ""Opening Day" means the first day" changed to
"(j) "Opening Day" means the first day"
10 Change ""Operation Life" means the period" changed to
"(k) "Operation Life" means the period"
11 Change ""Review Date" means the first July" changed to
"(1) "Review Date" means the first July"
12 Change ""Ton" means a short ton, being 2,000" changed
to "(m) "Ton" means a short ton, being 2,000"
13 Change ""Waste" means non-hazardous solid" changed to
"(n) "Waste" means non-hazardous solid"
14 Change ""Zoning Approvals" means any and" changed to
"(o) "Zoning Approvals" means any and"
"{including any special use zoning or variance"
15-16 Change changed to "(including any special use zoning,
variance"
"variance) necessary to permit the development"
17 Change changed to "variance or plan...permit the
development"
"Developer shall establish...non-compliance
18-19 Change charges" changed to "Developer shall
establish...non-compliance charges"
"sole cost and expense,...all required permits"
20-21 Change changed to "sole cost and expense,...all required
permits"
"sole cost and expense,...the Final Entitlements;"
22-23 Change changed to "sole cost and expense,...the Final
Entitlements;"
24 Change "personnel to litter...ensure that disposal" changed
to "personnel to litter...ensure that disposal"
25-26 Change "charging uncovered load...uncovered load fees"
changed to "charging uncovered load...uncovered
load fees"
"Road -Interstate 10...Airline Road and Lambert"
27-28 Change changed to "Road -Interstate 10...Airline Road
and Lambert"
29 Change "residential property...basis, but not less" changed
to "residential property...basis, but not less"
30 Format change force majeure event
"appropriate access to... sampling of its own"
31 Change changed to "appropriate access to...sampling of
its own"
32-33 Change "limits set forth in this Section 30." changed to
"limits set forth in this Section 31."
34 Deletion 49. Force Majeure. No...the other party
thereof.
35 Change "Entire Agreement. This Agreement" changed to
"50. Entire Agreement. This Agreement"
Statistics:
Count
Insertions 13
Deletions 21
Moved from 0
Moved to 0
Style change 0
Format changed 1
Total changes 35
MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS DEVELOPMENT AGREEMENT ("A~reement") is entered into this day of ,
2010, by and among TOWN OF MARANA, ARIZONA, a municipal corporation (the "Town"), DKL
HOLDINGS, INC., a Delaware corporation ("Developer"), and H. KAI FAMILY NG1, L.L.C., an
Arizona limited liability company ("Seller").
RECITALS
A. Pursuant to the provisions of that certain Agreement for the Sale of Real Property and
Joint Escrow Instructions dated as of December 14, 2009 between Seller and Developer
(the "Purchase Agreement"), Developer has contracted to purchase from Seller that
certain real property located within Pima County, Arizona, more particularly described in
Exhibit A attached hereto and referred to as the "Property."
B. Developer intends to develop the Property as a municipal solid waste landfill and related
facilities known as the Marana Regional Landfill (the "Landfill") in accordance with the
Specific Plan (defined below) and this Agreement.
C. The parties acknowledge that the Landfill is consistent with the Town's General Plan and
Strategic Plan, as of the date this Agreement is executed [A.R.S. § 9-SOO.OS.B].
D. The Marana Regional Landfill Specific Plan was approved on , 2010 by
Ordinance Number (as amended or modified, the "Specific Plan").
E. The parties hereto desire to enter into this Agreement to set forth their understandings and
agreements regarding development and operation of the Landfill. This Agreement is a
development agreement within the meaning of and pursuant to A.R.S. § 9-500.05.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties
hereto, the parties agree as set forth below:
1. Incorporation of Recitals and Exhibits. The forgoing recitals and all exhibits attached hereto
are incorporated by this reference as though fully set forth herein.
2. Definitions. The following terms shall have the meanings set forth below whenever used in this
Agreement, except where the context clearly indicates otherwise:
(a) "ADEO" means Arizona Department of Environmental Quality or any successor agency
of the State of Arizona exercising regulatory authority over the Landfill similar to that currently exercised
by ADEQ.
11055298.20
(b} "Base Index" means, for the CPI adjustment to the Vehicle Flat Fee under Section 20, (i)
for the first Review Date, the CPI for calendar month May of the calendar year immediately prior to the
first Review Date calendar year, and (ii) for each subsequent Review Date, the CPI for the calendar
month May of the calendar year of the prior Review Date.
(c) "Closing DaX" means the last day on which the Landfill is open to receive Waste.
(d) 1"Commercially Reasonable Efforts" means. when describing the reauired standard of a
nartv_ 's expected conduct. the ~ efforts that a reasonable and nru~nerson or entry in such ~nartv's
position and of substantially eauivalent economic means as such nartv would undertake in such course of
conduct.2 .
(e) ~3"CPI" means the consumer price index compiled and published by the United States
Department of Labor, Bureau of Labor Statistics, designated Consumer Price Index -All Urban
Consumers (CPI-U) 1982 - 1984 = 100: area: West-Size Class A, or, if said consumer price index ceases
to be published and there is no successor index, a reasonably equivalent index published by an
authoritative third party mutually agreed upon by the Town and Developer, acting reasonably and in good
faith. The CPI for any date means the CPI last published before the calendar month that includes such
date. For reference, a current databases print-out of the Consumer Price Index -All Urban Consumers
(CPI-U) 1982 - 1984 = 100: area: West-Size Class A, All items is attached as Exhibit B.
(f) (e)-4"Effective Date" means the date upon which all of the following have occurred: (i)
Developer has acquired the Property; (ii) the Property has been annexed by the Town and (iii) Final
Entitlements have been granted for the Landfill.
(g) ~}-5"Environmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, agreement, judgments, orders and decrees, now of hereafter enacted, promulgated, or
amended, of the United States, the State of Arizona, or Pima County relating to pollution, the protection
or regulation of human health, natural resources, or the environment, or the emission, discharge, release
or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances
or waste of Hazardous Materials in the environment (including, without limitation, ambient air, surface
water, ground water or land or soil).
(h) f~-6"Final Entitlements" means grant or issuance of all final, complete and unappealable
licenses, permits, approvals (including Zoning Approvals), authorizations and entitlements granted by
applicable governmental authorities and legally required for the development, construction and operation
of the Landfill, but excluding any license, permit, approval, authorization or entitlement whose grant or
issuance is contingent upon completion of construction of any building or other improvements included in
the Landfill.
(i) (~-~"Hazardous Materials" means any substance which is or contains (i) any "hazardous
substance" as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1986, as amended (42 U.S.C. §§9601 et seq.) ("CERCLA") or any
regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the
Resource Conservation and Recovery Act (42 U.S.C. §§6901 et seq.) ("RCRA") or regulations
promulgated under RCRA; (iii) radon gas; and (iv) any additional substances or materials which are now
or hereafter classified or considered to be hazardous or toxic under Environmental Requirements or the
common law, or any other Applicable Laws, but excluding any material that is permitted to be deposited
in the Landfill by ADEQ.
iiossz9s.zo 2
~j) (-i}-g"Net Tonnage" means all Waste that is deposited at the Landfill through the
commercial operation of the Landfill, including, without limitation, Waste deposited pursuant to Section
20, but excluding only the following: (i) liquid or semi-solid Waste as determined by the ADEQ's Paint
Filter Test standard, or any replacement liquid test standard, (ii) Waste that is prohibited from receipt at
the Landfill by state, federal or local law, regulation, rule, code, ordinance, order, license, permit or
permit condition, including land use restrictions or conditions applicable to the Landfill, (iii} materials
used for daily cover or alternative daily cover, interim cover, final cover or Landfill infrastructure as
approved pursuant to applicable landfill permits and (iv) Waste which is received and deposited at the
Landfill for no or nominal consideration (e.g. any periodic free tipping day or other free or nominal rate
disposal program) other than Waste received from Developer or any of its affiliates.
(k) {fi}-9"Opening DaX" means the first day on which the Landfill is open to receive Waste.
(1~ {-l~}lo"Operation Life" means the period between Opening Day and Closing Day.
{m) (4-}-11"Review Date" means the first July 1 to occur following the first anniversary of the
Opening Day and each July 1 thereafter.
(n) (ter}-12"Ton" means a short ton, being 2,000 pounds.
(o) (-n-}-13"Waste" means non-hazardous solid waste intended for final disposal in a landfill
and not for beneficial use, as defined in the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901
et seq. and implementing Arizona state law, and in accordance with Federal and Arizona state laws and
the terms of any permit, license, authorization, registration or consent issued, granted, given or otherwise
made available by any governmental authority applicable to the Landfill and the Property.
(p) l~,l 14«Zoning Approvals" means any and all local zoning approvals (including any
special use zoni°nTg-errs}16 variances lap a~nrovals or amendmentsl~) necessary to permit the
development and operation of the Landfill.
3. Term. The term of this Agreement shall commence on the Effective Date and continue for the
Operation Life of the Landfill, unless terminated sooner as provided in this Agreement or extended by
mutual agreement. Termination of this Agreement shall not extinguish the covenants or agreements that
by their terms require performance after termination. Unless the parties otherwise agree in writing each
such covenant and agreement shall survive termination of this Agreement.
4. Termination.
{a) End of Term. In accordance with Section 3, this Agreement shall terminate at the end of
its term unless extended by mutual agreement of Town and Developer.
(b} Zoning Chan._ges. If Developer elects by written notice to the Town not to proceed with
the Landfill or obtains rezoning of the Property to authorize a use other than the Landfill, this Agreement
will terminate. Changes in the Specific Plan that do not require a change in the land use zone do not
constitute rezoning for purposes of this Section 4.
(c) Specific Plan Changes. Changes in the Specific Plan or modifications to the Agreement
pursuant to Section 04.05.08 of the Town's Land Development Code that materially increase or otherwise
materially alter the Developer's obligations under this Agreement, unless allowed by amendment to this
Agreement as set forth in Section 46, shall, at Developer's option, terminate this Agreement. If
i ioss29s.2o 3
Developer elects to terminate this Agreement pursuant to this Section 4(c), Developer shall provide
written notice to the Town exercising Developer's termination right.
(d) Default. This Agreement may be terminated pursuant to Section 34 due to breach of this
Agreement and failure to remedy.
(e) Reversion. If the Opening Day does not occur by the eighth (8~`) anniversary of the later
of (i) the parties' execution and delivery of this Agreement or (ii) Seller or Developer's receipt of the
Zoning Approvals, Town may schedule a public hearing to determine compliance with Developer's
schedule of development of the Landfill or to grant an extension of time or cause the Property to revert to
its former zoning classification in accordance with A.R.S. § 9-462.01(E). Upon reversion of the Property
to its former zoning classification, this Agreement shall terminate.
5. Designation of Truck Route; No Rail Shur or Hauling. Developer shall propose a single
designated commercial truck route for delivery of Waste to the Landfill for the Town's approval.
Developer shall establish and shall use 18Commerciallv Reasonable
F~ff~t~19 to collect non-compliance charges to encourage commercial haulers to use such designated truck
route. Notwithstanding the foregoing, commercial waste collection trucks that service customers in the
general vicinity of the Landfill and deposit collected Waste at the Landfill shall not be required to follow
such designated truck route if doing so would interfere with such collection trucks' service routes in such
general vicinity. Developer shall not install a rail spur to or on the Property. No Waste shall be accepted
at the Landfill which has, to the knowledge of Developer, been transported by rail.
6. Applicable Law. Developer shall construct and operate the Landfill in accordance with
applicable Federal and State laws, rules and regulations (collectively, "A~plicable Laws"). If the Federal
Aviation Administration requires a study of the Landfill activity on the Property in accordance with
Applicable Laws, Developer will conduct the study at Developer's sole cost and expense.
7. ADEO Aparovals. Developer, at its sole cost and expense, shall use
~s20 .omm r iall Rea onable ,fort 21 to obtain all required permits and licenses and final approval
of a municipal solid waste facility plan from ADEQ that will allow that Property to be used as a
municipal solid waste landfill and related facilities, with terms, conditions and stipulations acceptable to
Developer (the "ADEQ Approvals"). The ADEQ Approvals shall be deemed to be "final" on the later of
(a) the next business day after the expiration of the time within an appeal could be filed regarding
issuance of the ADEQ Approvals provided that no such appeal was filed or attempted to be filed, or (b) if
such an appeal is filed, the next business day after the successful final conclusion of such appeal in favor
of Developer.
8. Third Party Reviews and Aparovals. Developer, at its sole cost and expense, shall use
Ee~~~ere-~le~~~-1°~~:~22Cominercially Reasonable Efforts23 to obtain the Final Entitlements;
provided that Developer shall not have to pay the Town's costs or expenses incurred in evaluating
submittals in excess of the fees ordinarily charged for evaluation of entitlements submittals.
9. Landfill Elevation and Height Limits. Notwithstanding any provision of the Specific Plan to
the contrary, once constructed, the maximum elevation of the Landfill shall not exceed 2,145 feet above
sea level (being 165 feet above the baseline elevation grade reference of 1,980 feet existing on the south
property line of the Property), and the average height of the Landfill shall not exceed 135 feet.
Notwithstanding the foregoing, grade changes outside of the Landfill footprint (including, without
limitation, screening berms, flood protection structures, stormwater basins, building pads and temporary
stockpiles) shall not be included in calculating the Landfill's compliance with the foregoing elevation and
height limits.
11055298.20 4
10. Hazardous Materials. No Hazardous Materials shall be disposed of at the Landfill in violation
of Applicable Laws. Further, Developer shall not accept for disposal at the Landfill any Waste that is
categorized as "hazardous material" or "hazardous substance", or any equivalent designation, under the
Applicable Laws of any state outside of Arizona in which such Waste was generated.
11. Litter Control. Developer shall keep the Property in a neat and orderly condition and work with
the adjacent property owners to pick up litter on adjacent properties resulting from Landfill operations
during the Operation Life of the Landfill. Particular attention will be paid to the administration building,
scale area, public disposal area, perimeter fencing and drainage channels. Developer shall follow
applicable ADEQ regulations relating to cover governing the active disposal areas. Developer shall
appoint a litter control team to control litter and other foreign material emanating from the Landfill, and
shall assign extra personnel to litter control as neededg in and around the Silverbell West
subdivision to the north of the State land adjacent to the Pronertv24. Developer shall ensure that disposal
operations are limited to the smallest area reasonably possible, consistent with safety, efficiency and litter
control, and are conducted to minimize wind-blown litter. Developer shall ensure that active disposal
areas within the Landfill are covered at the end of each work day. To promote litter-free operation,
especially in regard to traffic between the Property and the Avra Valley Road -Interstate 10 interchange,
Developer shall (a) establish requirements for haulers to cover and secure loads, including charging
uncovered load fees, (b} use 25Commercially Reasonable Efforts26 to
collect uncovered load fees and to ban haulers that chronically violate such requirements, (c) employ
personnel to remove litter along the Property access drive to Avra Valley Road on a regular basis, but not
less than once every thirty (30) days, and (d) employ personnel to remove litter along Avra Valley Road
from the intersection of Avra Valley Road and the Property access drive to the Avra Valley Road -
Interstate 10 interchange--a~27}28 along Airline Road and Lambert Lane adjacent to the residential
property known as Happy Acres. and in and around the above-noted Silverbell West subdivision. x1129 on
a regular basis, but not less than once every thirty (30) days. If Developer fails to comply with such litter
removal obligations, Town may delivery written notice to Developer specifying such failure and demand
that Developer commence litter removal activity in accordance with this Agreement. If Developer fails to
commence such litter removal within one (1) business day of Developer's receipt of such notice, Town
may engage Town personnel or third-party contractors to complete such litter removal on Developer's
behalf and invoice Developer for the cost of such work, which invoice shall be payable by Developer
within thirty (30) days of Developer's receipt. In addition to such clean-up costs, Developer shall pay
Town a fine of $1,000 upon the third time within any thirty (30)-day period, and upon any additional time
within such thirty (30)-day period, that Town, exercising the foregoing right, engages Town personnel or
third-party contractors to complete such litter removal on Developer's behalf.
12. Town Review of Developer Compliance Under Agreement.
(a) Prior to the Opening Day, Developer shall notify Town in writing of Developer's
compliance with all of its obligations due to be performed under this Agreement prior to the Opening Day
and the date that Developer has scheduled for the Opening Day. Town shall have fifteen (15} days from
the date of its receipt of such notice to deliver Developer a written request for a meeting with Developer's
representatives and/or an inspection of the Property to confirm Developer's compliance with its
pre-Opening Day obligations. If Town delivers such written notice within such time period, Developer
and Town shall cooperate to arrange such meeting and inspection as soon as practicable and in any event
not more than fifteen (15} days after the date of delivery of Town's written notice to Developer. If Town
fails to deliver such written notice, Town shall be deemed to have waived its right to require such meeting
andlor inspection, in which event Developer shall be free to commence operation of the Landfill in
accordance with Developer's schedule; provided, however, that such waiver shall not limit any other
rights of Town under this Agreement or Applicable Law to oversee and inspect the operation of the
Landfill and Developer's other obligations hereunder.
11055298.20
(b) Following the one-year anniversary of the Opening Day, Town may deliver written
notice to Developer requesting a meeting with Developer's representatives and/or an inspection of the
Property to confirm Developer's compliance with its post-Opening Day obligations under this
Agreement. Town may request such meeting and/or inspection once during the time period commencing
on the one-year anniversary of the Opening Day and expiring on the day before the five-year anniversary
of the Opening Day. During any five year period beginning with the five-year anniversary of the
Opening Day and each successive five-year anniversary of the Opening Day thereafter during the
Operation Life, Town may deliver written notice to Developer requesting a meeting with Developer's
representatives and/or an inspection of the Property to confirm Developer's compliance with its
post-Opening Day obligations under this Agreement; provided that Town shall not request more than one
such meeting and/or inspection during any such five (5) year period. If Town delivers any such written
notice, Developer and Town shall cooperate to arrange such meeting and/or inspection as soon as
practicable and in any event not more than thirty (30) days after the date of delivery of Town's written
notice to Developer. If Town fails to deliver a notice for the period in question, Town shall be deemed to
have waived its right to require such meeting and/or inspection of the Property until the next anniversary
date referred to above; provided, however, that such waiver shall not limit any other right of Town under
this Agreement or Applicable Law to oversee and inspect the operation of the Landfill and Developer's
other obligations hereunder.
(c) If, based on any meeting and/or inspection referred to in Section 12(al or 12~b1 above,
Town determines that Developer is not in compliance with any of its obligations under this Agreement,
Town shall notify Developer in writing of such non-compliance, whereupon Developer shall have thirty
(30) days to correct such non-compliance before Town may find Developer to be in default under this
Agreement; provided, however, that if Developer reasonably requires more than thirty (30) days to
correct such non-compliance, Developer shall have such additional time as is reasonably necessary to
correct such non-compliance before Town may find Developer to be in default under this Agreement.
Upon Developer completing any such corrective work, Developer shall permit Town representatives to
inspect such work to confirm that such non-compliance has been corrected.
(d) Developer shall obtain prior to the Opening day, and shall maintain during the Operation
Life, a performance bond in the amount of $100,000 securing Developer's performance obligations under
this Agreement.
13. Operation Life Reporting: Closure Plan.
(a) Within thirty (30} days after the fifth (5~'} anniversary of the Opening Day, and within
thirty (30) days after each successive fifth (5~') anniversary date thereafter, Developer shall deliver to
Town a written calculation of the remaining Operation Life of the Landfill, including an estimation of
available remaining volume in the Landfill. Further, within thirty (30) days after each anniversary of the
Opening Day during the last five (5) years of the Operation Life of the Landfill, Developer shall deliver to
Town a written calculation of the remaining Operation Life of the Landfill, including an estimation of
available remaining volume in the Landfill. Notification, in accordance with Section 35 of this
Agreement, of the intent to close the Landfill shall be sent to Town at least ninety (90) days in advance of
the anticipated Closing Day.
(b) At a minimum, Developer's operations of the Landfill shall (i) provide that perimeter
berms be seeded and vegetated with native plan material that closely resembles the surrounding desert
unless prohibited by ADEQ, (ii) provide for Developer to design and construct man-made habitats on the
Property for burrowing owl communities, which habitat design and construction shall be undertaken with
the cooperation and input of the ADEQ or Arizona state wildlife authorities, and (iii) include designs
intended to induce habitation by burrowing owl communities and other natural wildlife, as prepared with
11055298.20 6
the cooperation and input of the ADEQ or Arizona state wildlife authorities, but subject to ADEQ landfill
closure regulations and other Applicable Laws.
(c) At the end of the Operation Life of the Landfill, Developer, at its sole cost and expense,
shall adopt a closure plan for the Property subject to approval by ADEQ following the requirements of
Applicable Laws for closure of municipal solid waste landfills. Developer shall be responsible for all
closure and post-closure costs and expenses.
14. Closure and Post Closure Financial Assurances. Developer shall provide financial assurances
for costs of closure and post closure care, as required by Applicable Laws.
15. Habitat Conservation Plan. Upon Town's adoption of a habitat conservation plan, and subject
to Developer's review and approval of such plan {acting reasonably), Developer shall enter into such
habitat conservation plan.
16. Dedication of East Branch of Brawley Wash; Maintenance. Following the later to occur of
(a) Opening Day or (b) completion of necessary improvements to the Property and any adjoining
properties, including, without limitation, levees, berms, drainage and natural habitat restoration,
Developer shall give Town written notice that such applicable event has occurred and offer to dedicate to
Town the open space described in Exhibit C attached hereto and commonly referred to as the East Branch
of Brawley Wash. Following delivery of such notice, Town may deliver written notice to Developer of
Town's election to accept such dedication so long as such notice is delivered prior to the Closing Day. If
Town elects by written notice to Developer to accept such dedication, then (i) Developer shall thereafter
promptly undertake such actions at its sole cost to formally dedicate the East Branch of Brawley Wash to
Town subject to Developer reserving rights during the Operation Life to conduct periodic maintenance or
repair required on any berms, levees or other improvements made by Developer in or around the East
Branch of Brawley Wash. Developer shall undertake such periodic maintenance and repairs at its sole
cost, subject to being granted reasonable and timely access to the East Branch of Brawley Wash to
conduct such work during the Operation Life. If Town fails to give any written notice to Developer of
Town's acceptance of the dedication of the East Branch of Brawley Wash, Developer shall remain
obligated to undertake such periodic maintenance and repairs during the Operation Life.
17. Force Majeure. In addition to any specific provisions of this Agreement, the performance by
either party hereunder shall not be deemed to be in default where there is a delay in performance caused
by or resulting from war, insurrection, terrorism, strikes, lockouts, riots, floods, earthquakes, fires,
casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargos,
lack of transportation, governmental restrictions or priority, unusually severe weather, inability of any
contractor, subcontractor or supplier to perform acts for such party, acts or the failure to act of any public
or governmental agent or entity, litigation relating to the Property initiated by a third party other that
Developer or the Town, or any other causes beyond the reasonable control the party claiming an
extension of time to perform (each, a " ~ ~. _ ~ _ .~ :.30"), and the party affected by the force
majeure event gives notice to the other party after the occurrence of such event. In the event that any
party to the Agreement is unable or fails to perform due to a force majeure event and such parry has given
the notice as provided above, then the time for the performance of the other party shall also be extended
for a period of time equal to the period of the delay plus a reasonable start-up period.
18. Host Fees.
(a) Developer shall pay the Town a "Host Fee" as set forth in this Section 18. The Host Fee
shall be paid for each calendar quarter during the Operation Life based on total Net Tonnage deposited at
the Landfill in such calendar quarter. The Host Fee shall be equal to four percent (4%) of the average
11015298.20 7
charge per Ton of Net Tonnage that third-party customers of the Landfill pay to deposit Waste at the
Landfill during the calendar quarter in question multiplied by the aggregate Net Tonnage deposited at the
Landfill during such calendar quarter; provided, however, that in no event shall the Host Fee be
calculated at less than $1.20 per Ton of such Net Tonnage. The Host Fee shall only be payable in respect
of amounts actually collected by Developer and shall only apply to amounts charged for the deposit of
eligible Waste at the Landfill. Without limiting the generality of the foregoing, no Host Fee shall be
payable in respect of amounts collected by Developer from customers of the Landfill as fees, fines,
damages, penalties or other charges for such customers' failure to comply with Applicable Laws or
Landfill rules or to compensate or reimburse Developer for having to separate mixed Waste loads or
undertake other work or liability resulting from such customers' delivery to the Landfill of Waste that is
ineligible for deposit at the Landfill.
(b) Host Fee payments shall be made to the Town General Fund and transmitted to Town at
the address set forth in Section 35. In the event Developer fails to make payment within ten (10) business
days after receipt of written notice from Town that a specific payment was not timely made, Developer
shall, in addition to the required payment, pay a late fee of ten percent (10%) of the total amount due for
said quarter.
(c) Host Fees shall be calculated and paid by Developer to Town within forty-five (45) days
after the end of each calendar quarter in which such Host Fees are earned. Within forty-five (45) days
after the end of each calendar quarter, Developer shall deliver to Town a written report {a " uarterl
Report"), certified in writing by Developer as being true and correct, of (i) the Net Tonnage deposited at
the Landfill and (ii) Developer's determination of the quarterly Host Fee payment due under Section
11 g(al with respect thereto (the "Host Fee Determination"}, as derived from Developer's review of its
operational, financial and other relevant books and records as of the end of such calendar quarter. The
Quarterly Report shall contain reasonable detail as to how the Host Fee Determination was made by
Developer, including details of any ineligible Waste processing costs under the neighborhood container
program referred to in Section 21 or the voucher program referred to in Section 22. In light of the
unpredictability of the available volumes of Waste, number of customers, future laws and regulations
and/or the business operations of Developer, Town acknowledges that Developer has not made any
representations regarding the volume of Net Tonnage or the amount of any Host Fees to be paid
hereunder. Developer specifically reserves the right to reject any Waste received at the Landfill.
(d) Developer shall retain for at least three (3) years accurate records of Net Tonnage
deposited at the Landfill for final disposal, including gate receipts. In addition to the Quarterly Reports,
Developer shall deliver to Town, from time to time, copies of all periodic reports filed by or on behalf of
Developer with the State of Arizona or any other applicable governmental body with respect to volumes
and types of Waste deposited at the Landfill.
(e) Developer shall install, operate and maintain at the Landfill, accurate and reliable scales,
certified by the Arizona Department of Weights and Measures. Such scales shall be kept in good
condition and repair at all times while the Landfill is open for business. Town shall have the right, in
connection with Town's review and audit rights referred to in Section 18(fl, to test the accuracy of such
scales, provided that such testing does not unreasonably interfere with the operation of the Landfill.
Notwithstanding the foregoing, Developer may charge customers of the Landfill using methods other than
weight-based fees, including volume-based fees and flat fees determined in Developer's sole discretion,
provided that such alternative charge methods shall not affect the method for calculating the Host Fee
payable to Town as contemplated hereunder.
(f) From time to time, upon Town's written request, but not more frequently than once per
calendar year, Developer shall make its records applicable to calculation of the Host Fee Determinations
11055298.20 8
covering the record retention period set forth in Section 18(d) above available to Town for review and
audit by Town or Town's accountants or other representatives. If, following any such review and audit,
Town believes that any Host Fee Determination was improperly made, Town may give written notice
thereof to Developer, in which event Town and Developer shall promptly cause their respective
representatives to confer with each other with a view to resolving such matter in good faith. If the
representatives of Town and Developer are unable to resolve such matter within thirty {30) days after the
date of delivery of Town's notice to Developer, Town and Developer shall refer the dispute to a mutually
acceptable firm of independent certified public accountants (the "Independent Accountants"} for final
determination. The Independent Accountants may request of Town and/or Developer such documents
and information as may be necessary or appropriate for proper determination of the matter, and Town and
Developer shall cooperate to promptly satisfy any such request. The determination by the Independent
Accountants of such matter shall be final and binding on Town and Developer, and may be enforced as an
arbitration award in the state or federal courts of Arizona. Town's out-of-pocket costs of conducting a
review and audit described above shall be borne by Town, unless the results of such review and audit, as
finally determined by agreement of Town and Developer or by the Independent Accountants, show that
Town was underpaid by more than five percent (5%) for the period under review, in which event
Developer shall reimburse Town all of such out-of-pocket costs and the costs of the Independent
Accountants upon presentation of receipts or other reasonable documentation thereof.
(g) Any Host Fee amount which, based on the separate agreement of Town and Developer or
a determination of the Independent Accountants, is payable by one party to the other shall be paid within
thirty (30) days after the agreement or determination and any such payment not timely paid in accordance
with this Section 18 shall bear interest at the rate of nine percent (9%) per annum until paid.
19. Free Public Access. On one Saturday in March and one Saturday in October (each, as selected
by Developer) during the Operation Life, Developer shall allow each Town household (and all
households not within the Town but which are located in the geographic area depicted on Exhibit D
attached hereto) to deliver Waste directly to a site designated by Developer at the Landfill free of charge.
Notice of each such free public access date together with terms for delivery of Waste consistent with this
Section 19 shall be published at least two {2) weeks in advance of such free public access date in a local
Marana newspaper reasonably acceptable to the Town. The costs of such notice shall be for Developer's
sole account. Waste delivered during these free public days shall be excluded from the calculation of the
Host Fees under Section 18. Developer shall be permitted to impose reasonable restrictions on such free
public access, including, without limitation, (a) a maximum of two (2) Tons per household per six-month
period (any amount not used in a six-month period shall not be carried forward to any succeeding
six-month period), (b) limit to two cars or pickup trucks per household per six-month period; (c)
individuals presenting evidence (e.g., driver's license and utility bill) of residency within Town or within
the area depicted on Exhibit D, as applicable; or (d) prohibition of commercial vehicle capacity for
delivery of Waste. Residents shall pay the posted gate rate for any amount in excess of two tons per
six-month period.
20. Customer Vehicle Flat Fees. Non-commercial landfill customers shall be charged a flat fee of
$10.00 per non-commercial vehicle {the "Vehicle Flat Fee") for up to the first one (1) Ton of eligible
Waste deposited by such vehicle at the Landfill. Any Net Tonnage of Waste in excess of one (1) Ton
deposited by such vehicle shall be subject to Developer's posted gate rates in effect from time to time.
The Vehicle Flat Fee shall be subject to annual upwards adjustment by an amount equal to any positive
change in the CPI. On each Review Date, the Vehicle Flat Fee shall be increased by any positive
percentage change reflected in the CPI when compared to the applicable Base Index, rounded to the
nearest one (1) cent. The formula for such adjustment shall be as follows:
Adjustment amount = 1 + [(RDCPI - BI) / BI]
i ioss29s.2o 9
Where: RDCPI =CPI existing on the Review Date; and
BI =Base Index
E.g. If the Vehicle Flat Fee in effect for cars prior to adjustment is $10.00, the most recently
reported CPI on the Review Date is 228.2 and the Base Index is 223.9, then the positive
percentage change between the Base Index and the CPI on the Review Date, i.e., 1 +
[(228.2-223.9)/223.9], is 1.0192%. The adjustment to the Host Fee is thus calculated as
follows:
$10.00 x 1.0912% _ $10.19205, rounded to $10.19.
Notwithstanding the foregoing, in no event shall any CPI-based increase in the Vehicle Flat Fee cause the
Vehicle Flat Fee to exceed the average per-Ton eligible Waste disposal cost charged to non-commercial
customers using solid waste landfills or transfer stations in the greater Tucson, Arizona metropolitan area.
To the extent such limitation applies to any CPI-based increase in the Vehicle Flat Fee, Developer may
not in any subsequent year's CPI-based adjustment to the Vehicle Flat Fee claim as part of such
adjustment the amount of any prior year's increase in the Vehicle Flat Fee that would have occurred but
for the application of this paragraph. In no event shall any CPI-based adjustment to the Vehicle Flat Fee
cause the Vehicle Flat Fee to decrease from one year to the next. In the event the CPI for a Review Date
reflects a negative percentage change when compared to the applicable Base Index, the Vehicle Flat Fee
for the then commencing year shall equal the Vehicle Flat Fee payable during the immediately preceding
year.
21. Neighborhood Container Program. During the Operation Life of the Landfill, during each
calendar quarter (a calendar quarter being each of January through March, April through June, July
through September, and October through December), upon the request of Town given at least fifteen (15)
days in advance, Developer shall arrange for up to four (4) roll-off containers to be placed in
neighborhoods determined by Town within Town limits and/or any neighborhood outside of Town limits
but within. the geographic area depicted on Exhibit D attached hereto (not more than four (4) such
neighborhoods per calendar quarter) for individuals residing in such neighborhoods to dispose of Waste,
and Developer shall arrange for the retrieval of such containers when full and for the disposal of their
contents at the Landfill. The costs of providing and retrieving such containers and for disposing of their
contents shall be for the sole account of Developer; provided, however, that if Developer must remove
Waste from any such container based on such Waste not being eligible for disposal at the Landfill based
on Applicable Laws, and Developer's cost of such removal and disposal of such Waste at another facility
exceeds $1,000 per individual container or $2,000 in the aggregate for all containers in any calendar
quarter, Developer may credit its full costs of such removal and disposal of such Waste against Host Fees
payable to Town. If Developer exercises its right to credit such costs against Host Fees payable to Town,
Developer shall provide Town with receipts or other appropriate evidence of Developer's costs of such
removal and disposal of such ineligible Waste. No Host Fees shall be payable in respect of Waste
deposited at the Landfill from the neighborhood container program contemplated by this Section 21.
22. Town Voucher Program. Commencing on the Opening Day, for each calendar year of the
Operation Life of the Landfill (prorated in the first year for any partial calendar year), Developer shall
provide Town with thirty (30) vouchers, each voucher entitling the holder to deposit up to two (2) Tons of
Waste to the Landfill free of charge. Town shall have sole discretion as to the distribution of such
vouchers, provided that such vouchers may not be distributed or used for commercial benefit. Unused
vouchers from a particular calendar year shall expire at the end of such calendar year and may not be used
in any subsequent calendar year. A person depositing Waste at the Landfill under a voucher who exceeds
the two (2) Ton limit of such voucher shall pay the posted gate rate for any Net Tonnage in excess of such
11055298.20 10
limit. To the extent Developer must remove Waste from any such voucher-related deposit based on such
Waste not being eligible for disposal at the Landfill based on Applicable Laws, Developer may credit its
cost of such removal and its cost of arranging for proper disposal of such Waste at another facility against
Host Fees payable to Town. If Developer must relocate and dispose of Waste deposited at the Landfill
based on such Waste not being eligible for disposal at the Landfill based on Applicable Laws, Developer
may credit its full costs of such relocation and disposal of such Waste against Host Fees payable to Town.
If Developer exercises its right to credit such costs against Host Fees payable to Town, Developer shall
provide Town with receipts or other appropriate evidence of Developer's costs of such relocation and
disposal of such ineligible Waste. Waste deposited at the Landfill under a voucher shall be excluded
from the calculation of the Host Fees otherwise due the Town under Section 18.
23. Neighboring Ground Water Well Monitoring. If provided access to a source located prior to
any treatment such as a water softener, Developer shall sample the five (5) domestic water wells
registered within two (2) miles down gradient from the Property listed on Exhibit E attached hereto. No
later than sixty (60) days following receipt of Final Entitlements for the Landfill, Developer shall send
written notice, to the address used by Pima County for sending tax bills, to the owner of each property on
which any of such water wells exist to determine if such owner wishes to have such water well sampled.
If any such property owner does not elect to have such well sampled by Developer by sending written
notice to Developer within thirty (30) days after Developer's written notice was mailed, Developer shall
not be required to sample such owner's well in the future. If such property owner elects to have
Developer sample such well and provides Developer with appropriate access to such well, Developer
shall gather enough samples to establish an adequate background sample set (at Developer's discretion)
from such well over a one (1)-year period in order to obtain a statistically valid background determination
of the quality of the water in such well. Developer shall provide the results of such sampling to the
property owner. Developer shall sample each such well for parameters that are deemed standard for State
and Federal landfill monitoring requirements and that are reasonably expected to be associated with
landfill-related constituents. After such initial sampling and during the Operation Life, if Developer's
sampling of its own test wells on the Property indicate that ground water contamination from the Landfill
is occurring, Developer shall sample each such property owner's wells on an annual basis (subject to
being granted appropriate access to such wells) until five years after31 Developer's sampling of its own
test wells on the Property indicate no further ground water contamination from the Landfill.
24. Town-Generated Waste. Developer shall allow Town to dispose of qualifying Town-generated
Waste eligible to be deposited in the Landfill at a rate equal to the lesser of (a) ninety percent (90%) of
the published gate rate on the date of deposit or (b) the lowest commercial vehicle rate actually charged
by Developer at the Landfill on the date of deposit. Town-generated Waste qualifying for such discount
shall mean Waste generated exclusively by Town and delivered in Waste delivery vehicles containing
only Town-generated Waste, as determined by Developer in its reasonable discretion. Town-generated
Waste mixed with other Waste shall not be eligible for such discount and Developer shall have no
obligation to separate Town-generated Waste from other Waste delivered to the Landfill.
25. Perimeter Fence. Prior to Opening Day, owner shall install a six (6) foot chain link fence on the
entire Southern perimeter boundary of the facility. A six (6) foot chain link fence on the western and
eastern perimeter boundaries will be built in phases. The first phase for both eastern and western
boundaries shall be constructed before Opening Day and will start at the southern boundary and extend to
the north one hundred (100) feet past the first active cell. Each phase of chain link fence there after will
be constructed to maintain a minimum of a one hundred (100) foot extension beyond the advancing
operation ultimately enclosing the entire site in chain link fence. The portion of the facility that has not
had chain link fence installed will have a five (5) strand wire fence as permitted by ADEQ. Prior to
Opening Day, signage stating "no trespassing" in Spanish and English shall be posted at least every one
hundred (100) feet along the entire perimeter of the Landfill site.
i iossz9s.zo 11
26. Property Access Intersection Improvements. Developer, at its sole cost and expense, shall
provide for the design and construction of certain improvements to the intersection of Avra Valley Road
and the Property access drive (the "Intersection Improvements"). The Intersection Improvements shall
include, but are not limited to: (a) a deceleration lane for each direction of travel on Avra Valley Road,
and (b) other road improvements deemed necessary by Town based on any traffic impact analysis,
drainage study or any other applicable study required by Town. Prior to construction of the Intersection
Improvements, Developer, at its sole cost and expense, shall submit to Town (i) an independent traffic
impact analysis, drainage study and any other study required the Town and (ii) plans and specifications
for the Intersection Improvements. Such studies, plans and specifications shall be subject to the approval
of Town, which approval may not be unreasonably withheld, conditioned or delayed. Construction of the
Intersection Improvements shall be in accordance with the applicable code requirements and standards of
Town. Developer shall commence and substantially complete construction of the Intersection
Improvements on or prior to Opening Day; provided that any delay caused or contributed to by Town,
including, without limitation, failure to timely approve the Intersection Improvements shall extend the
date for substantial completion by one day for each day of such delay. Developer agrees not to develop
or actively participate with any third party in the development of Silverbell Road for purposes of allowing
Silverbell Road to be used as a means of access to the Property.
27. Other Avra Valley Road Improvements.
(a) Following the second anniversary of the Opening Day, the Town may deliver written
notice to Developer requesting a traffic signal at the intersection of Avra Valley Road and Sandario Road,
Marana, Arizona; provided that such notice contains a traffic signal study conducted by the Town in
accordance with the latest edition of the Manual on Uniform Traffic Control Devices concluding that the
traffic signal is warranted. Developer shall design and install such traffic signal at the intersection of
Avra Valley Road and Sandario Road, Marana, Arizona on or before the one-year anniversary of deliver
y of the Town's notice requesting such signal.
(b) Prior to the Opening Day, Developer shall design and construct in accordance with Town
standards aright-turn lane on eastbound Avra Valley Road at Sandario Road and a right turn lane on
northbound Sandario Road at Avra Valley Road.
(c) Prior to the Opening Day Developer shall design and construct in accordance with Town
standards aright-turn lane on westbound Avra Valley Road at Sanders Road.
(d) Prior to Opening Day, Developer shall provide slurry seal and/or asphalt overlay on the
approximately six (6)-mile segment of Avra Valley Road between the current East Marana Town line and
the current West Marana Town line located just west of the proposed Landfill entrance as mutually agreed
to by Developer and Town based on findings of geotechnical report(s) to be obtained by Developer, at its
own cost and expense. If the section of Avra Valley Road from Interstate 10 to the current East Marana
Town line has not been improved by third parties prior to the Opening Day, then Developer shall provide
slurry seal and/or asphalt overlay on that section of Avra Valley Road not already improved prior to
Developer's slurry seal and/or asphalt overlay work.
28. Brawley Bridge Improvement. Developer, at its sole cost and expense, shall provide for such
repairs and upgrading of the East Branch of the Brawley Wash Bridge on Avra Valley Road as are
necessary to maintain the current 80,000 pound rating for such bridge (the "Bridge Improvements").
Prior to construction of the Bridge Improvements, Developer, at its sole cost and expense, shall submit to
Town plans and specifications for the Bridge Improvements. Such plans and specifications shall be
subject to the approval of Town, which approval may not be unreasonably withheld, conditioned or
delayed. Construction of the Bridge Improvements shall be in accordance with the applicable code
11055298.20 12
requirements and standards of Town. Developer shall substantially complete construction of the Bridge
Improvements prior to Opening Day; provided that any delay caused or contributed to by Town,
including, without limitation, failure to timely approve the Bridge Improvements shall extend the date for
substantial completion by one day for each day of such delay.
29. Use of Fox Easement. Following the Opening Day, if requested by the Arizona State Land
Department (including any successor department), Developer shall enter into an agreement with the
Arizona State Land Department to permit State or other third party vehicles to use the "Fox Easement
Area", as set forth in that certain Amended and Restated Easement dated November 30, 2009 (the "Fox
Easement") and recorded in the Office of the Pima County Arizona Recorder in Docket 13696, Page 174,
for purposes of accessing State of Arizona grazing lands located on the east side of the access road to the
Property. Such use of the Fox Easement shall at all times be in compliance with the terms of the Fox
Easement and in common with Developer and any other parties permitted to use the Fox Easement Area,
shall not exceed the rights of Developer to the Fox Easement Area, and shall not unreasonably interfere
with Landfill access or operations.
30. Operating Hours of Landfill. Commencing on the Opening Day and throughout the Operation
Life, Developer shall cause the Landfill to be open to receive eligible Waste from commercial and
non-commercial customers during normal business hours at least six (6) days per week, including at least
four (4) hours on each Saturday, excluding recognized holidays.
31. Environmental Insurance. Prior to Opening Day, a pollution legal liability, environmental
impairment or other similar policy of insurance shall be in force covering the Property in an amount not
less than $20,000,000 aggregate, $10,000,000 each incident. Such insurance may have self insured
retention in excess of $1,000,000 but not more than $5,000,000 so long as Developer (a) provides a letter
of credit or bond in an amount equal to the self-insured retention amount, or (b) demonstrates to Town's
satisfaction (acting reasonably and in good faith) that Developer has current financial worth and/or
financial stability sufficient to satisfy such self insurance risk. Such insurance coverage shall remain in
force during the remainder of the term of this Agreement. On the tenth anniversary of the Opening Day,
and on each successive tenth anniversary thereafter prior to the Closing Day, Developer shall review the
adequacy of its insurance coverage, taking into account effects of inflation and industry standards for
such insurance. Developer may adjust its insurance coverage based on Developer's review; provided that
Developer may not reduce coverage below the limits set forth in this Section 3$32.1+33
32. Conflict Of Interest. This Agreement is subject to the provisions of A.R.S. § 38-511.
33. No Personal Liability. No member, official or employee of the Town shall be personally liable
to Developer, or any successor or assignee, (a) in the event of any default or breach by the Town, (b) for
any amount which may become due to the Developer or its successor or assign, or (c) pursuant to any
obligation of the Town under the terms of this Agreement.
34. Default. It shall be a default hereunder if either party fails to perform or unreasonably delays
performing any of its obligations hereunder or otherwise act in accordance with any term or provision of
this Agreement and such failure or unreasonable delay continues for a period of sixty (60) days after
written notice from the non-defaulting party specifying in reasonable detail the nature of the failure or
delay and the manner in which such failure or delay may be satisfactorily cured. However, if the failure
or delay is such that more than sixty (60) days would reasonably be required to perform such action or
comply with any term or provision hereof, then the defaulting party shall have such additional time as
may be necessary to perform or comply so long as the defaulting party commences performance or
compliance within the cure period and diligently proceeds to complete such performance or fulfill such
obligation.
11055298.20 13
35. Notices. All Notices which shall or may be given pursuant to this Agreement shall be in writing
and shall be deemed to have been duly giving if (a) delivered personally to the party at the address set
forth below; (b) deposited in the United States Mail, certified return receipt requested, postage prepaid to
the party and addressed as set forth below; or {c) personally delivered or mailed in like manner to such
other address as either party hereto may designate in writing.
If to Developer: DKL Holdings, Inc.
Attention: Larry D. Henk
4050 W. Ray Road, # 17
PMB 209
Chandler, Arizona 85266
Fax: (480) 419-3543
If to Town: Gilbert Davidson, Town Manager
Marana Municipal Complex
11555 W. Civic Center Drive
Marana, Arizona 85653
Fax: (520) 382-1998
With a copy to: Frank Cassidy, Town Attorney
Marana Municipal Complex
11555 W. Civic Center Drive
Marana, Arizona 85653
Fax: (520) 382-1998
Either party may designate any other address for this purpose by written notice to the other party in the
manner described herein. Notices shall be deemed given and received on the date personally delivered or
two (2) business days after being mailed.
36. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona.
37. Conflict. In the event of any conflict between the terms of this Agreement and the Specific Plan,
the terms of this Agreement shall govern.
38. Successors and Assigns. The Developer's rights and obligations hereunder may only be assigned
to and assumed by a person or entity that has either (a) acquired the Property or (b) assumed Developer's
contractual right to acquire the Property and, in either case, only by a written instrument, recorded in the
Official Records of Pima County, Arizona expressly assigning and assuming such rights and obligations.
Developer shall send notice of such assignment and assumption in accordance with Section 35 to the
Town, but such assignment and assumption shall not be subject to the Town's consent. All of the
provisions hereof shall inure to the benefit of and be binding upon the successors and assigns. This
Agreement is not binding upon any subsequent municipality that may annex or incorporate the Property.
39. Third Parties. No term or provision of this Agreement shall be for the benefit of any person or
entity not a party hereto, and no such other person or entity shall have the right or cause of action
hereunder.
40. No Agency Relationship, No Partnership or Joint Venture. Developer shall not in any way
exercise any portion of the authority or sovereign powers of the Town and shall not make or contract or
commit or in any way represent itself as an agent for the Town. This Agreement shall not create any
iiossz9s.zo 14
agency relationship between Developer and the Town. Under no circumstances shall the parties hereto be
considered partners or joint ventures.
41. Waiver. No delay in exercising any right or remedy shall constitute a waiver. No waiver by
either party of any breach or default of any of the terms, covenants or conditions of this Agreement shall
be construed or held to be a waiver of any succeeding or preceding breach or default of the same or other
term, covenant or condition herein contained.
42. Heap The headings for the Sections of this Agreement are for convenience and reference
purposes only and in no way define, limit or describe the scope or intent of said Sections nor in any way
affect this Agreement.
43. Attorneys' Fees. In the event it becomes necessary for either party to this Agreement to employ
legal counsel or to bring an action at law or other proceedings to enforce any of the terms, covenants or
conditions of this Agreement or defend any action related to this Agreement, each party be responsible for
its own attorneys' fees.
44. Severability. In the event that any term, phrase, clause, sentence, paragraph, section, provision
or other portion of the Agreement shall become illegal null or void or against public policy, for any
reason or shall be held by any court of competent jurisdiction to be illegal, null or void or against public
policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in full
force and effect to the fullest extent permitted by law.
45. Recordation. This Agreement shall be recorded in the Official Records of the County Recorder
of Pima County, Arizona, not later than ten (10) days after its full execution. Once the requirements of
the Agreement have been fulfilled, either party, upon request of the other party, will record an
acknowledgment of the fulfillment of the terms hereof and termination of this Agreement.
46. Amendment to Agreement. No change of addition is to be made to this Agreement except by
written amendment executed by Town and Developer. Within ten (10) days after approval and execution
of the amendment to this Agreement, the amendment shall be recorded in the Official Recorder of the
County Recorder of Pima County, Arizona.
47. Seller Consent. By executing this Agreement, Seller hereby acknowledges that it is aware of and
consents to Developer's undertaking and performance of Developer's obligations under this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, the parties agree that if Developer
fails to complete its purchase of the Property pursuant to the terms of the Purchase Agreement due to a
material default of Seller under the Purchase Agreement or a failure of any of Developer's closing
conditions set forth in the Purchase Agreement, Developer may elect in its sole discretion, as evidenced
by written notice delivered to Town, to terminate its development of the Landfill and all of its obligations
under this Agreement. If Developer exercises such termination right, Developer shall be immediately
relieved of its obligations under this Agreement. Thereafter, if Seller or any other third party undertakes
to proceed with the development of the Property as a solid waste landfill (whether as contemplated by this
Agreement or otherwise), Seller or such other third party's development of the Property shall be subject
to this Agreement, with Seller or such third party having the obligations of the "Developer" hereunder.
48. Authority. Each of the parties represents and warrants to the other that the persons executing
this Agreement on behalf of the respective parties are authorized and empowered to bind the party on
whose behalf each such individual, in his/her official capacity, is signing.
11055298.20 15
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34
49. ~35Entire Agreement. This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements,
representations, negotiations and understandings of the parties hereto, oral or written, pertaining to the
subject matter hereof are hereby superseded and merged herein.
[Signatures on Following Page]
11055298.20 16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of
the Effective Date.
STATE OF ARIZONA )
ss.
County of )
TOWN OF MARANA, ARIZONA, a municipal
corporation
By: _
Name:
Title:
Attest:
Marana Town Clerk
Approved as to Form and Within the Powers and
Authority Granted under the Laws of the State
of Arizona to the Town of Marana
Marana Town Attorney
This agreement was acknowledged before me this day of , 2010, by
,the of the Town of Marana, a municipal
corporation, on behalf of the Town of Marana.
Notary Public
My Commission Expires:
i ioss29s.zo 17
DKL HOLDINGS, INC., a Delaware
corporation
STATE OF ARIZONA )
ss.
County of )
This agreement was acknowledged before me this day of , 2010, by
Larry D. Henk, the President of DKL Holdings, Inc., a Delaware corporation, on behalf of DKL
Holdings, Inc.
My Commission Expires:
STATE OF ARIZONA )
ss.
County of )
This agreement was acknowledged before me this day of , 2010, by
Herbert Kai, the Manager of H. Kai Family NGI, L.L.C., an Arizona limited liability company, on behalf
of H. Kai Family NG1, L.L.C.
My Commission Expires:
By: _
Name:
Title:
Notary Public
H. KAI FAMILY NG1, L.L.C., an Arizona
limited liability company
By: _
Name:
Title:
Notary Public
iiossz9s.zo 18
EXHIBIT A
PROPERTY
11055298.20
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11055298.20
EXHIBIT B
CPI DATABASE PRINT-OUT
11055298.20
EXHIBIT C
BRAWLEY WASH DESCRIPTION
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11055298.20
EXHIBIT D
MAP FOR FREE PUBLIC ACCESS AND NEIGHBORHOOD CONTAINER PROGI
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EXHIBIT E
SAMPLING WATER WELLS
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506352 EARLEY,W W EXEMPT
611183 HICE, CHARLES & MARY, EXEMPT
805125 MANCINI, VITTORIO,E EXEMPT
11055298.20
IEGEN_D
--- Site Boundary -- --
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618391 KAI JR,H NON-EXEMPT
11055298.20
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11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653
Council Chambers, November 3, 2010, 7:00:00 PM
To: Mayor and Council Item D 1
From: Gilbert Davidson ,Town Manager
Strategic Plan Focus Area:
Not Applicable
Subject: Legislative/Intergovernmental Report_ regarding all pending state and federal
legislation and report on recent meetings of other legislative bodies
Discussion:
This item is scheduled for each regular council meeting in order to provide an opportunity for
discussion of any legislative or regional intergovernmental item that might arise. Periodically, an
oral report may be given to supplement the Legislative Bulletins.
ATTACHMENTS:
Name: Description: Type:
No Attachments Available
Staff Recommendation:
Upon the request of Council, staff will be pleased to provide recommendations on specific
legislative/intergovernmental issues.
Suggested Motion:
Mayor and Council's pleasure.
Regular Council Meeting -November 3, 2010 -Page 138 of 138