HomeMy WebLinkAboutOrdinance 2013.023 authorizing an amendment to the marana regional landfill development agreementf
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F. ANN RODRIGUEZ, RECORDER
Recorded By: JAF •
DEPUTY RECORDER
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SMARA
TOWN OF MARANA
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MARANA ORDINANCE NO. 2013.023
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE AMENDMENT NO. 1 TO THE MARANA REGIONAL LANDFILL
DEVELOPMENT AGREEMENT.
WHEREAS on November 3, 2010, the Marana Town Council adopted Ordinance
No. 2010.19, approving and authorizing the Mayor to execute the Marana Regional Landfill
Development Agreement (the "Development Agreement"); and
WHEREAS the Development Agreement provided for the developer to provide certain
Avra Valley Road improvements as mutually agreed to by the developer and the Town based on
findings of a geotechnical report to be obtained by the developer; and
WHEREAS the geotechnical report has now been obtained and provides clarification
regarding the condition of the road and the preferred methodology for completing the Avra
Valley Road improvements; and
WHEREAS the developer and the Town now desire to amend certain provisions of the
Development Agreement relating to the Avra Valley Road improvements; and
WHEREAS the Marana Town Council finds that the amendments to the Development
Agreement contemplated by this ordinance are non-substantial changes made to provide
clarification to the developer and the Town; and
WHEREAS the Marana Town Council finds that the Marana Regional Landfill
Development Agreement, as amended by this ordinance, is consistent with the Marana General
Plan, applicable specific plans, and relevant Town policies; and
WHEREAS the Marana Town Council finds that Amendment No. 1 to 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. Amendment No. 1 to 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.
Marana Ordinance No. 2013.023 - 1-
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SECTION 2. The Mayor is hereby authorized and directed to execute Amendment No. 1
to 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 a11 acts necessary or desirable to give effect to this ordinance.
PASSED �ND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 19�' day of September, 2013.
.,,�---
Mayor E Hon `
ATTEST:
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� ocelyn ronson, Town Clerk
RECEIVED
SEP 19 2013
Town of Marana
Glerk's Office
0
Mazana Ordinance No. 2013.023 - 2-
APPROVED AS TO FORIVI:
AMENDMENT NO. 1 TO
MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT
TOWN OF 11+IARANA, ARIZONA
THIS AMENDMENT NO. 1 TO MARANA REGIONAL LANDFILL DEVELOPMENT
AGREEMENT (this "Amendment") is entered into as of this _ day of , 2013, by and among
TOWN OF MARANA, ARIZONA, a municipal corporation ("Town"), DKL HOLDINGS, INC., a
Delaware corporation ("DKL"), and WASTE MANAGEMENT OF ARIZONA, INC., a California
corporation ("Waste Mana ement").
RECITALS
A. Town, DKL and H. Kai Family NG1, L.L.C. ("Kai") are parties to that certain Marana
Regional Landfill Development Agreement dated as of November 3, •2010 (the
"Development Agreement") regarding the development of the Property as a municipal
solid waste landfill and related facilities known as the Marana Regional LandfilL
B. Effective as of September 7, 2012, concurrently with Kai's sale to Waste Management of
the Property, DKL assigned all of its rights under the Development Agreement to Waste
Management, and Waste Management assumed substantially all of DKL's obligations
under the Development Agreement, such that Waste Management assumed the role as
Developer under the Development Agreement as of such date. DKL retained certain
obligations under the Development Agreement for the funding of certain improvements
offsite of the Property.
C. Pursuant to Section 47 of the Development Agreement, the Development Agreement may
be amended by a written agreement executed by Town and Developer.
D. Town, Waste Management (in its capacity as Developer) and DKL wish to amend the
Developer's performance requirements under Section 28 of the Development Agreement,
as provided herein.
E. Initially capitalized terms used but not defined in this Amendment have the respective
meanings given to them in the Development Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual obligations af the parties
hereto, the parties agree as set forth below:
l. Incorporation of Recitals. The forgoing recitals are incorporated by this reference as though
fully set forth herein.
Exhibit A- Ordinance No. 2013.023
2. Amendment to Requirements Under Section 28(d) of Development A�reement.
(a) Within ten (10) days following Town's execution and delivery of this Amendment
(following prior approval of this Amendment by Town Council), Waste Management shall pay Town the
aggregate amount of Six Hundred Thousand Dollars ($600,000). Based on such payment obligation of
Waste Management and in light of DKL's payment obligation under Section 3 below, upon receipt by
Town of such Six Hundred Thousand Dollar ($600,000) payment from Waste Management, the
requirement in the first sentence of Section 28(d) of the Development Ageement regarding slurry seal
and/or asphalt overlay work to be performed by Developer prior to Opening Day shall be deemed waived
by Town without any further notice or action by Town.
(b) The second sentence of Section 28(d) of the Development Agreement is hereby amended
to read as follows:
"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
third anniversary of the Opening Day, then Developer shall, before such
third anniversary, provide slurry seal and/ar asphalt overlay on that
section of Avra Valley Road not already improved prior to Developer's
slurry seal and/or asphalt overlay work."
(c) After giving effect to the amendment referred to in clause (b) above, Section 28(d) of the
Development Agreement is hereby further amended by inserting the following provisions at the end
thereof:
"Notwithstanding the foregoing, if Developer is prevented from being
able to complete sueh slurry seal and/or asphalt overlay work by the third
anniversary of the Opening Day based on the actions of Pima County,
Town or any other governmental autharity (or any agent thereo�, the
time period far Developer's completion of such work shall be
automatically extended by an amount of time equal to the duration of
such delay. If Developer fails to complete such slurry seal and/or asphalt
overlay work by the third anniversary of the Opening Day, as such
deadline may be extended pursuant to the immediately preceding
sentence, Developer shall pay Town a royalty equal to $0.25 per Ton of
Net Tonnage deposited at the Landfill &om the day after such
deadline date through and including the date on which such work is
completed, whether by Developer or any other person or entity. Such
royalty shall be calculated on a calendar quarter basis and paid to Town
within thirty (30) days after the end of the calendar quarter in which such
royalty is earned."
3. Further Pavment ObliEations. DKL shall pay Town the aggegate sum of Five Hundred
Thousand Dollars and Four Cents ($500,000.04) in twelve (12) equal installments of $41,666.67 each,
with the first such installment to be paid on April 15, 2014, and with each successive installment to be
paid every three (3) months thereafter (i.e., July 15, October 15, January 15, April 15, etc.) until such
aggregate payment obligation is fully satisfied. If DKL defaults in making any such installment payment
when due, and fails to cure such default within ten { 10) days after written notice thereof is given to DKL,
Town may, by written notice to Waste Management, require Waste Management to make such payment
on DKL's behalf. Waste Management shall pay such amount to Town within ten (10) days after Waste
E�chibit A- Ordinance No. 2013.023 2
Management's receipt of such written request therefor. Any such payment by Waste Management shall
be counted and included in satisfaction of DKL's aggregate payment obligation under this Section 3.
4. Effectiveness of Develonment A�reement. Except as expressly provided in this Amendment,
the Development Agreement remains unchanged and in full force and effect.
5. Notices. All Notices which shall or may be given pursuant to this Amendment 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 Waste Management: Waste Management of Arizona, Inc.
Attention: General Counsel
222 South Mi11 Avenue, Suite 333
Tempe, Arizona 85281
If to DKL: DKL Holdings, Inc.
Attention: Larry D. Henk
2454 South 7`�' Avenue
Phoeni�c, Arizona 85007
Faar: (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
Any party hereto 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.
6. Third Parties. No term or provision of this Amendment 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.
7. Recordation. This Amendment 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.
8. Amendment to A�reement. No change of addition is to be made to this Amendment except by
written amendment executed by Town, Developer and DKL.
E�ibit A- Ordinance No. 2013.023
9. Authoritv. Each of the parties represents and warrants to the other that the persons executing
this Amendment 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.
10. Entire A�reement. This Amendment 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.
[Signatutes on Following Page]
Exhibit A- Ordinance No. 2013.023 4
� . .
IN WIT'NESS WHEREOF, the parties hereto have executed this Amendment No. 1 to Marana
Regional Landfill Development Agreement to be effective as of the date first written above.
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:
Exhibit A— Ordinance No. 2013A23 5
� a J � s e . . . .. .
. DKL HOLDINGS, INC., a Delaware
corporation
By:
Name:
Title:
STATE OF ARIZONA )
) ss.
County of )
This agreement was acknowledged before me this _ day of , 2013, by Larry D.
Henk, the President of DKL Holdings, Inc., a Delaware corporation, on behalf of DKL Holdings, Inc.
Notary Public
My Commission Expires:
WASTE MANAGEMENT OF ARIZONA,
INC., a California corporation
By:
Name:
Title:
STATE OF )
) ss.
County of )
This agreement was acknowledged before me this day of , 2013, by
, the of Waste Management of California, Ina, a
California corporation, on behalf of Waste Management of California, Ina
Notary Public
My Commission Expires:
E�ibit A- Ordinance No. 2013.023 6