HomeMy WebLinkAboutResolution 2011-032 agreement with tucson audubon society for borrow pit restoration MARANA RESOLUTION NO. 2011-32
RELATING TO THE ENVIRONMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE AN AGREEMENT WITH TUCSON AUDUBON SOCIETY FOR BORROW PIT
RESTORATION
WHEREAS the Town owns land formerly used as a borrow pit located along the Santa Cruz
River in the north half of the northeast quarter of Section 17, Township 12 South, Range 12 East,
Gila and Salt River Base and Meridian, Pima County, Arizona, Assessor's Parcel Numbers
226 -03 -0120 and -0130 (the "Borrow Pit "); and
WHEREAS Tucson Audubon Society is an Arizona non -profit corporation devoted to
conservation of birds and their habitats; and
WHEREAS the Town and Tucson Audubon Society desire for Tucson Audubon Society to
assess, design, restore, and stabilize habitat at the Borrow Pit; and
WHEREAS the funding for this item will be paid from mitigation funds currently held by the
Town and required to be used solely for habitat restoration purposes; and
WHEREAS the Mayor and Council find that the best interests of the Town of Marana and its
citizens are served by the approval and execution of the agreement between the Town and
Tucson Audubon Society for restoration of the Borrow Pit.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the "Agreement between the Town of Marana and
Tucson Audubon Society for Borrow Pit Restoration" attached to and incorporated by this reference
in this resolution as Exhibit A is hereby approved, the Mayor is hereby authorized and directed to
execute it for and on behalf of the Town of Marana, and the Town's Manager and staff are hereby
directed and authorized to undertake all other and further tasks required or beneficial to carry out the
terms, obligations, and objectives of the agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 1 day of March, 2011.
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ATTEST: waftj� APPROVED AS TO FORM:
?ocellyn-Bronson, Town Clerk ank C sidy, Town torney
AGREEMENT BETWEEN THE TOWN OF MARANA AND
TUCSON AUDUBON SOCIETY FOR BORROW PIT RESTORATION
THis AGREEMENT is entered into by and between the Town of Marana, an Arizona municipal
corporation, with its principal offices at 11555 West Civic Center Drive, Marana, Arizona 85653
(the "Town "), and TUCSON AUDUBON SOCIETY, an Arizona non -profit corporation, with its prin-
cipal offices at 300 East University Boulevard #120, Tucson, Arizona 85705 ( "Tucson Audu-
bon"). The Town and Tucson Audubon are sometimes collectively referred to in this Agreement
as the "Parties," either of which is sometimes individually referred to as a "Party."
RECITALS
A. The Town is an Arizona municipal corporation that owns land formerly used as a borrow
pit located along the Santa Cruz River in the north half of the northeast quarter of Section 17,
Township 12 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, Ari-
zona, Assessor's Parcel Numbers 226 -03 -0120 and -0130 (the `Borrow Pit ").
B. Tucson Audubon is an Arizona non - profit corporation devoted to conservation of birds
and their habitats.
C. The Town and Tucson Audubon desire for Tucson Audubon to assess, design, restore, and
stabilize habitat at the Borrow Pit in the manner more specifically described in this Agreement
and generally referred to in this Agreement as the "Work."
D. The Town is authorized under Arizona Revised Statutes section 34 -201 (F) (2) to con-
struct recreational projects, including trails, playgrounds, ballparks and other similar facilities
and excluding buildings, structures, building additions and alterations to buildings, structures and
building additions, with volunteer workers or workers provided by a nonprofit organization
without advertising for bids for labor and materials, provided that the total cost of the work does
not exceed $150,000 in 2001 dollars.
E. Tucson Audubon's performance of the Work as set forth in this Agreement falls within the
Town's authority described in recital D above.
AGREEMENT
NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the intent
of the Parties in entering into this Agreement, and in consideration of the terms of this Agree-
ment, the Parties hereby agree as follows:
1. Detailed description of the Work and Tucson Audubon's responsibilities. Tucson Audubon
shall undertake the following site assessment and design, restoration implementation, and post
implementation consultation tasks as part of the Work under this Agreement:
a. Site assessment and design.
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i. Maps and mapping. Tucson Audubon will acquire from the Town or other existing
sources hard copies of and electronic access to maps that will be necessary for assessment
and planning of the Borrow Pit.
ii. Site visits. Tucson Audubon will make a series of visits to the Borrow Pit in order
to plan work there.
iii. Restoration and vegetation enhancement plan.
(1) Tucson Audubon will represent in written and graphic form a plan for vegeta-
tion enhancement and other potential work to help restore and stabilize habitat at the
Borrow Pit. A time line will be included in the plan.
(2) The restoration plan will analyze factors such as topography, slope, surface
water flow, standing surface water, groundwater, cold air drainage, soils, existing
vegetation, and sun angles in order to develop a plan.
(3) Based on these factors, the restoration plan will describe where to re- vegetate,
how much vegetation to introduce, and the planting and irrigation techniques most
likely to succeed in this environment. Rainwater harvesting will be integrated into the
irrigation plan, as well as other irrigation techniques outside of drip irrigation due to
the likely impracticality of using drip irrigation at this site.
(4) The plan will also describe recommended plant species for introduction into
this area, including trees, shrubs and grasses, and consider whether this will be done
through planting, seeding or a combination of the two.
(5) Tucson Audubon will consult with the Town to see what in -kind materials,
equipment, and /or personnel may be available from the Town to make restoration
work more efficient.
b. Restoration implementation.
i. The implementation of restoration work onsite by Tucson Audubon will result in
vegetation being planted (and perhaps seeded) that Tucson Audubon believes has the best
chance of surviving and providing habitat for birds and other wildlife. It will be planted
in areas, in species combinations, and at densities where Tucson Audubon believes it is
most likely to succeed in meeting these goals.
ii. Tucson Audubon will plant using rainwater harvesting techniques to enhance the
ability of plants to survive.
iii. Other work may be done, as will be outlined in the restoration plan, including pro-
tecting plantings from predation, addressing erosion issues, or others.
iv. Tucson Audubon may use both employees and volunteers to implement the re-
vegetation and any other techniques used. In all cases the work of employees and/or vol-
unteers will be overseen by Tucson Audubon's Habitats Program Manager and Field Su-
pervisor.
v. All materials (plant materials and other) will be purchased by Tucson Audubon
personnel.
c. Consultation on post- implementation stewardship
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i. During the Town's operation, maintenance and long -term stewardship of the site,
Tucson Audubon will provide written recommendations for continued care of plants and
any other enhancements made to the Borrow Pit under this agreement and will provide
the Town with other general recommendations for future stewardship of the site.
2. Payment by the Town.
a. General. The Town shall pay Tucson Audubon an amount not to exceed $40,600 for
the Work under this Agreement.
b. Budget. The Parties have jointly prepared a budget including categories of work. Tuc-
son Audubon will bill the Town, and the Town will pay Tucson Audubon, amounts consis-
tent with the not -to- exceed figures for each category of work shown in the budget. The not-
to- exceed figures for the individual budget categories may be modified by a document signed
by representatives of the Town and Tucson Audubon as long as the total budget does not ex-
ceed $40,600.
c. Invoicing. Tucson Audubon will invoice the Town at intervals throughout the work. At
the preference of the Town's representative, invoices for materials (plants, other materials,
etc.) may be delivered to the Town to be paid directly to vendors.
3. Tucson Audubon as independent contractor. In the performance of the Work, Tucson
Audubon shall act solely as an independent contractor, and nothing expressed or implied in this
Agreement shall be construed to create the relationship of employer and employee, partnership,
principal and agent, or to create a joint venture between the Town and Tucson Audubon.
4. Insurance. Tucson Audubon shall maintain insurance with the following required cover-
ages and limits, and the Town shall be named as an additional insured on the commercial general
liability insurance policy:
Worker's Compensation: Statutory
Employer's Liability: U.S. $1,000,000
Commercial General Liability: U.S. $1,000,000 per occurrence
U.S. $2,000,000 aggregate
Business Auto Liability: U.S. $1,000,000 combined single limit
5. Regulatory compliance and approvals. Each Party shall at its own expense comply with
all applicable federal, state and local laws, rules, and regulations in connection with its obliga-
tions under this Agreement.
6. Appointment of representatives. To further the commitment of the Parties to cooperate in
the progress of the Work, the Town and Tucson Audubon each shall designate and appoint a
representative to act as a liaison the Town and its various departments and Tucson Audubon. The
initial representative for the Town shall be Janine Spencer, Environmental Project Coordinator,
and the initial representative for Tucson Audubon shall be Kendall Kroesen, Habitats Program
Manager. The representatives shall be available at all reasonable times to discuss and review the
performance of the Parties to this Agreement and their responsibilities in connection with the
Work.
7. Notices. All notices, requests, demands, and other communications under this Agreement
shall be in writing and shall be deemed given if personally delivered or mailed, certified mail,
return receipt requested; to the following addresses:
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If to the Town, to: Town Manager
11555 W. Civic Center Drive - Bldg A3
Marana, AZ 85653
If to Tucson Audubon, to: Tucson Audubon Society
300 East University Boulevard #120,
Tucson, Arizona 85705
8. Entire Agreement. This Agreement constitutes the entire agreement and understanding of
the Parties pertaining to the subject matter of the Agreement and supersedes all offers, negotia-
tions, and other agreements of any kind. All prior and contemporaneous agreements, representa-
tions and understandings of the Parties, oral or written, are superseded and merged in this
Agreement.
9. Authority to Execute Agreement. The individuals executing this Agreement hereby repre-
sent that they have full right, power, and authority to execute this Agreement on behalf of their
respective Parties.
10. Force Majeure. Notwithstanding any other term, condition or provision of this Agree-
ment to the contrary, if any Party to this Agreement is precluded from satisfying or fulfilling any
duty or obligation imposed upon it due to labor strikes, material shortages, war, civil distur-
bances, weather conditions, natural disasters, acts of God, or other events beyond the control of
such Party, the time period provided herein for the performance by such Party of such duty or
obligation shall be extended for a period equal to the delay occasioned by such events.
11. Immigration laws. Tucson Audubon warrants that it will at all times comply with all fed-
eral immigration laws and regulations that relate to its employees and with Arizona Revised
Statutes section (A.R.S. §) 23 -214 (A). Tucson Audubon acknowledges that pursuant to A.R.S.
§ 41 -4401 and effective September 30, 2008, a breach of this warranty is a material breach of
this Agreement subject to penalties up to and including termination of this Agreement, and that
the Town retains the legal right to inspect the papers of any employee who works on the Agree-
ment to ensure compliance with this warranty.
12. Scrutinized business operations. Tucson Audubon certifies that it does not have, nor will
it for the duration of this Agreement have, scrutinized business operations in Sudan or Iran as
defined in A.R.S. § 35 -391 and A.R.S. § 35 -393, respectively.
13. Conflict of interest. This Agreement is subject to the provisions of A.R.S. § 38 -511,
which provides for termination in certain instances involving conflicts of interest.
14. Attorneys' Fees. The prevailing Party in a civil action to enforce this Agreement shall be
entitled to recover from the other Party, in addition to any relief to which such prevailing Party
may be entitled, all costs, expenses and reasonable attorneys' fees incurred in connection with
that civil action.
15. Governing Law. This Agreement shall be construed in accordance with the laws of the
State of Arizona.
16. Termination. Either Party may terminate its participation in this Agreement for any rea-
son upon at least fifteen days' prior written notice to the other Party. Upon termination, the Town
shall have no further obligation to Tucson Audubon, other than for payment of acceptable ser-
vices rendered prior to termination.
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•
IN WITNESS WHEREOF, the Parties have duly executed this instrument below.
The "Town" "Tucson Audubon"
TOWN OF MARANA, an Arizona municipal TUCSON AUDUBON SOCIETY an Arizona
corporation non - profit corporation
Ed Honea, ayor Dr Paul Green, Executive Director
Date: �" f` �� Date
ATTEST:
_ Clerk Date
APPROV AS TO FORM:
31
`To At ey to
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