HomeMy WebLinkAboutResolution 2013-086 relating to habitat preservation agreementMARANA RESOLUTION NO. 2013-086
RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE
MAYOR TO EXECUTE AN AGREEMENT TO TERMINATE THE HABITAT
PRESERVATION AGREEMENT RELATING TO TORTOLITA PRESERVE
WHEREAS pursuant to Section 7(a)(2) of the Endangered Species Act, the United States
Fish and Wildlife Service (USFWS) issued a Biological Opinion dated October 23, 2000 (the
"Biological Opinion") concerning potential impacts to the cactus ferruginous pygmy owl ("Pyg-
my Owl") and its designated critical habitat in connection with the development of Dove Moun-
tain; and
WHEREAS as called for in the conservation measures of the Biological Opinion, the
Town entered into a Habitat Preservation Agreement to minimize impacts to the Pygmy Owl,
and also entered into a 99-year lease with the Arizona State Land Department to preserve 2,397
acres of open space adjacent to Dove Mountain (the "Preservation Lease"�; and
WHEREAS on October 24, 2000, the Town Council adopted Resolution No. 2000-114,
adopting and authorizing execution of the Habitat Preservation Agreement for Tortolita Preserve
between the Town of Marana, Cottonwood Properties, Inc., RedHawk Marana, LLC, Rita Land
Corporation and the USFWS; and
WHEREAS as set forth in the 71 Federal Register 19452 (April 14, 2006) ("Delisting
Rule"), the USFWS removed the Pygmy Owl from the Federal List of Endangered and Threat-
ened Wildlife and removed the critical habitat designation for the Pygmy Owl, actions which
resulted in the Biological Opinion no longer being in full force and effect for the Pygmy Owl;
and
WHEREAS the Preservation Lease and Habitat Preservation Agreement were established
solely for mitigating impacts to the Pygmy Owl, and the Delisting Rule stipulates that the con-
servation measures provided by the Endangered Species Act no longer apply to the Pygmy Owl
and thereby eliminated the USFWS conservation requirements associated with the Preservation
Lease, the Habitat Preservation Agreement, and the Biological Opinion; and
WHEREAS the parties to the Habitat Preservation Agreement now desire to terminate
that Agreement as it is no longer necessary due to the Delisting Rule; and
WHEREAS the Mayor and Council finds that termination of the Habitat Preservation
Agreement is in the best interests of the Town of Marana and its citizens.
Resolution No. 2013-086 - 1 -
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The agreement to terminate the Habitat Preservation Agreement attached as
Exhibit A to and incorporated by this reference in this resolution is hereby approved, and the
Mayor is hereby authorized to execute it for and on behalf of the Town of Marana.
SECTION 2. The Town's Manager and staff are hereby directed and authorized to under-
take all other and further tasks required or beneficial to carry out the terms, obligations, and ob-
jectives of the termination agreement approved by this resolution.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 1 St day of October, 2013.
ATTEST:
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Jocelyn C. Bronson, Town Clerk
Resolution No. 2013-086 - 2 -
TERMINATION OF HABITAT PRESERVATION AGREEMENT
(Terminates the agreement recorded at Docket 11418, Page 1876)
This agreement ("Termination Agreement") to terminate the Habitat Preservation
Agreement executed on or around October 24, 2000 ("Habitat Preservation Agreement") is
entered into as of , 2013, by RedHawk Marana, LLC, Rita Land Corporation
and Cottonwood Properties, Inc. (collectively "Applicant"), the Town of Marana ("Town"), and
the United States Fish and Wildlife Service ("USFWS"), all of which are collectively referred to as
the "Parties."
RECITALS
A. Pursuant to Section 7(a)(2) of the Endangered Species Act (the "ESA"), USFWS has
issued a Biological Opinion dated October 23, 2000 (the "Biological Opinion") concerning
potential impacts to the cactus ferruginous pygmy owl ("Pygmy Owl") and its designated
critical habitat (collectively the "Pygmy Owl Impacts") and concerning impacts to the Lesser
Long Nosed Bat in connection with the development of Dove Mountain (as defined in the
Biological Opinion); and
B. As called for in the conservation measures of the Biological Opinion, the Town
entered into the Habitat Preservation Agreement to minimize Pygmy Owl Impacts and entered
into a 99 year lease with the Arizona State Land Department to preserve 2,397 acres of open
space adjacent to Dove Mountain ("Preservation Lease").
C. The Habitat Preservation Agreement was entered into by RedHawk Marana, LLC,
Rita Land Corporation, Cottonwood Properties, Inc., and Town of Marana. The document was
signed and entered into by the parties in October 2000. The Habitat Preservation Agreement
was filed on November 3, 2000 with the office of the Pima County Recorder at Docket 11418,
Page 1876.
D. As set forth in the 71 Federal Register 19452 (April 14, 2006) (Delisting Rule"), the
USFWS removed the Pygmy Owl from the Federal List of Endangered and Threatened Wildlife
and removed the critical habitat designation for the Pygmy Owl, actions which terminated the
maximum disturbance ratio and other requirements of the Biological Opinion for the Pygmy
OwL
E. The Preservation Lease and Habitat Preservation Agreement were established
solely for mitigating Pygmy Owl Impacts. The Delisting Rule stipulates that the conservation
measures provided by the ESA no longer apply to the Pygmy Owl and thereby eliminated the
EXHIBIT A TO RESOLUTION 2013-086 � TERMINATION OF HABITAT PRESERVATION AGREEMENT
-1-
USFWS conservation requirements associated with the Preservation Lease, the Habitat
Preservation Agreement, and the Biological Opinion (#2-21-99-F-363, October 23, 2000).
In consideration of the foregoing, the Parties hereby affirm, covenant, and agree as follows:
1. Habitat Preservation Agreement. The Habitat Preservation Agreement and all of
the conservation requirements thereunder are of no further force and effect.
2. Miscellaneous. The Parties each represent to the other that they have the full
power and authority to enter into this Termination Agreement. The Parties hereby affirm the
accuracy of the recitals set forth above.
3. Applicable Law. This Termination Agreement shall be governed by and construed
in accordance with the laws and regulations of the United States and the State of Arizona.
4. Recordin�. Town of Marana shall file this Agreement in the office of the Recorder
of Pima County, Arizona.
5. Notices. Notices under this Termination Agreement may be given by personal
delivery, facsimile, or by U.S. mail, return receipt requested, to the Parties at their respective
addresses set out below, with notice being deemed effective on the date so delivered. The
Parties acknowledge that the Habitat Preservation Agreement has not been assigned since
October 2000.
a. If to Applicant:
Cottonwood Properties, Inc.
William Hallinan
3567 E. Sunrise Dr., Ste. 219
Tucson, AZ 85718
b. If to Town:
Gilbert Davidson, Town Manager
11555 W. Civic Center Dr.
Marana, AZ 85653
c. If to USFWS
United States Fish & Wildlife Service
Attn: Steven Spangle
2321 W. Roya) Palm Rd., Ste. 103
Phoenix, AZ 85021
6. _Relationship to Endan�ered Species Act (ESA). The terms of this Termination
Agreement shall be construed in accordance with the ESA and applicable federal law. Nothing
in this Termination Agreement is intended to limit the authority of the USFWS to fulfill its
responsibilities under the ESA. Moreover, nothing in this agreement is intended to limit or
EXHIBIT A TO RESOLUTION 2013-086 TERMINATION OF HABITAT PRESERVATION A6REEMENT
2
diminish the legal obligations and responsibilities of the USFWS as an agency of the federal
government.
7. Duplicate Ori�inals. This Termination Agreement may be executed in any number
of duplicate originals. A complete original of this Termination Agreement shall be maintained
in the official records of each of the Parties.
8. Liability. On behalf of itself, its officers, directors, members, employees, agents,
and representatives, each Party agrees that it will be responsible for its own acts and omissions
and the results thereof and that it is not responsible for the acts or omissions of any other
Party, nor the results thereof. Each Party therefore agrees that it will assume the risk and
liability to itself, its agents, employees, and volunteers for any damages resulting in any manner
from the conduct of the Party's own operations and/or of its agents, employees, and/or
volunteers under this Termination Agreement. Each Party further releases and waives all claims
against every other Party for compensation for any loss, cost, damage, expense, or other
liability arising out of the performance of this Termination Agreement, including without
limitation any loss, cost, damage, or other liability arising out of the other Party's negligence.
9. Dama�es. No Party shall be liable in damages to any other Party or other person
for any damages, including monetary, that may result from this Termination Agreement, any
performance or failure to perform a mandatory or discretionary obligation imposed by this
Termination Agreement or any other cause of action arising from this Termination Agreement.
EXECUTED in multiple counterpart originals as of the date first set forth above.
REDHAWK MARANA, L.L.C., an Arizona limited liability
company
By: DMBG Investments, Inc., an Arizona
corporation, its manager
By:
Name:
Title:
RITA LAND CORPORATION, an Arizona corporation
By:
Name:
Title:
EXHBIT A- RESOLUTION 2013-086 TERMINATION Of HABITAT PRESERVATION AGREEMENT
-3-
COTTONWOOD PROPERTIES, INC., an Arizona
corporation
By:
Name:
Title:
TOWN OF MARANA, an Arizona municipa) corporation
By:
Name:
Title:
UNITED STATES FISH & WILDLIFE SERVICE
�
Name:
Title:
STATE OF ARIZONA )
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County of Pima )
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The foregoing instrument was acknowledged before me this day of September, 2013 by
. the of DMBG Investments, Inc., an Arizona
corporation, manager of REDHAWK MARANA, L.L.C., an Arizona limited (iability company, on
behalf of the LLC.
(Seal)
Notary Public
EXHBIT A - RESOLUTION 2013-086
-
TERMINATION OF HABITAT PRESERVATION AGREEMENT
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing instrument was acknowledged before me this day of September, 2013 by
, the of RITA LAND CORPORATION, an
Arizona corporation, on behalf of the corporation.
(Seal)
Notary Public
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing instrument was acknowledged before me this day of September, 2013 by
, the of COTTONWOOD PROPERTIES, INC., an
Arizona corporation, on behalf of the corporation.
(Seal)
Notary Public
STATE OF ARIZONA ) ,
) ss.
County of Pima )
The foregoing instrument was acknowledged before me this day of September, 2013 by
. the of the TOWN OF MARANA, an Arizona
municipal corporation, on behalf of the town.
(Seal)
Notary Public
STATE OF ARIZONA )
) ss.
County of Pima )
The foregoing instrument was acknowledged before me this day of September, 2013 by
, the of UNITED STATES FISH & WILDLIFE
SERVICE, on its behalf.
(Seal)
Notary Public
EXHBIT A- RESOLUTION 2013-O8E TERMINATION OF HABITAT PRESERVATION AGREEMENT
-5-