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HomeMy WebLinkAbout11/21/2006 Blue Sheet IGA for Wildlife Corridors in Marana TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: November 21, 2006 AGENDA ITEM: I. 4 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Resolution No. 2006-188: Relating to Real Estate; approving and au- thorizing the execution of an intergovernmental agreement between Pima County and the Town of Marana to provide mitigation funding for wildlife corridors in the Marana area. DISCUSSION The 2004 Willow Ridge Development Agreement provided for the contribution of $6,400 per residential lot within the Willow Ridge property for the acquisition, maintenance, enhancement, and improvement of lands in the general vicinity of the Willow Ridge project for the purposes of passive recreation, open space preservation, habitat restoration, and disturbance mitigation. With the concurrence of the U. S. Department of the Interior, Fish and Wildlife Service (FWS), Pima County has identified certain wildlife corridors within approximately three miles northwest of the Willow Ridge project which will protect the habitat and species affected by the Willow Ridge project. Specifically, Pima County has identified certain lands located southeast of the Avra Valley Road/I-lO interchange for acquisition as part of an important link between the Tuc- son Mountains and the Tortolita Fan area. The IGA proposed for approval by this agenda item would transfer to the County $5,000 per lot of the Willow Ridge mitigation funding for the purpose of acquiring, maintaining wildlife corri- dors between the Tucson Mountains and the Tortolita Fan. The funds would be paid quarterly, with the amount varying depending upon the number of building permits issued within the Wil- low Ridge project. To date, no building permits have been issued in Willow Ridge (nor can they be issued until completion of the Cortaro Road project); however, the Town currently anticipates a total of 190 total lots within Willow Ridge, which will generate a total of $1,216,000 in mitiga- tion funds, $950,000 of which will be transferred to Pima County pursuant to this proposed IGA. RECOMMENDATION Staff recommends adoption of Resolution No. 2006-188, approving and authorizing the execu- tion of the IGA with Pima County to provide mitigation funding for wildlife corridors. ATTACHMENT(S) IGA with Pima County. SUGGESTED MOTION I move to adopt Resolution No. 2006-188. {00002869.DOC I} FJC/cds 10//30/06 MARANA RESOLUTION NO. 2006-188 RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN OF MARANA TO PROVIDE MITIGATION FUNDING FOR WILDLIFE CORRIDORS IN THE MARANA AREA. WHEREAS, the 2004 Willow Ridge Development Agreement provided for a contribution to Pima County for the acquisition, maintenance, enhancement, and improvement oflands in the gen- eral vicinity ofthe Willow Ridge project for the purposes of passive recreation, open space preserva- tion, habitat restoration and disturbance mitigation; and WHEREAS, the Town of Maran a and Pima County have reached agreement about how best to accomplish this purpose; and WHEREAS, the Mayor and Council of the Town of Maran a find that it is in the best interests of the public to enter into an intergovernmental agreement reflecting this understanding with Pima County. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the intergovernmental agreement between the Town of Marana and Pima County attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Mar ana . IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and au- thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives of the intergovernmental agreement. PASSED, ADOPTED, and APPROVED by the Mayor and Council of the Town of Maran a, Arizona, this 21st day of November, 2006. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00002870.DOC I} FJC:cds10130106 INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN OF MARANA TO PROVIDE MITIGATION FUNDING FOR WILDLIFE CORRIDORS IN THE MARANA AREA THIS INTERGOVERNMENTAL AGREEMENT (this "IGA") is entered into by and between PIMA COUNTY, a political subdivision of the State of Arizona (the "County") and the TOWN OF MARANA, an Arizona municipal corporation, (the "Town"). The Town and the County are some- times collectively referred to as the "Parties" and individually referred to as a "Party." RECITALS A. The Parties are authorized by Arizona Revised Statutes section ("A.R.S. f') 11-952, et seq., to enter into agreements for joint and cooperative action. B. The County desires to purchase environmentally sensitive lands so that they may be permanently preserved. C. The County has identified for possible purchase certain environmentally sensitive land located in the general vicinity of the l-lO/Avra Valley Road interchange, where there are impor- tant wildlife corridors between the Tortolita Mountains and the Tucson Mountains and along cer- tain washes that traverse the area including but not limited to the Hardy Wash (collectively the "Wildlife Corridors"). D. The County needs additional funding to acquire and maintain the Wildlife Corridors, which run through lands in and adjacent to the town limits of the Town. E. The Town has entered into a development agreement with the developer of the Willow Ridge project located immediately south of Cortaro Road and just over a half mile east of 1-10. This development agreement is referred to in this IGA as the "Willow Ridge Development Agreement" and is recorded at Docket 12292, Page 6664, of the Pima County Recorder's Office. The property that is the subject of the Willow Ridge Development Agreement is more particu- larly described in Exhibit A to Marana Ordinance 2004.07 (the "Property"). F. The Willow Ridge Development Agreement addresses requirements and conditions for the Willow Ridge project, which was originally anticipated to have up to 200 units and is now expected to have about 155 residential units. G. Paragraph 2.2 of the Willow Ridge Development Agreement requires the project de- veloper to pay an open space, park and trail system contribution of $6,400 for each residential lot within the Property, payable upon the issuance of a building permit for construction of a resi- dence on that lot, to be used by the Town to acquire, maintain, enhance and improve lands in the general vicinity of the Willow Ridge project for the purposes of passive recreation, open space preservation, habitat restoration, and disturbance mitigation. This contribution is referred to in this IGA as the "Willow Ridge Mitigation In-Lieu Fee." H. The Willow Ridge Mitigation In-Lieu Fee was an environmental mitigation condition imposed on the Willow Ridge project based on a request from the United States Department of the Interior, Fish and Wildlife Service ("FWS"). {00OO2867.DOC I} - I - 9/29/2006 FJC PL I. The Wildlife Corridors extend to within approximately three miles northwest of the Willow Ridge project. J. By letter dated August 11,2005 from Steven Spangle ofFWS to County Administrator C.H. Huckelberry, FWS expressly supports the use of Willow Ridge Mitigation In-Lieu Fee pro- ceeds to acquire, maintain, enhance, and improve the Wildlife Corridors. K. The habitat and species affected by the Willow Ridge project are generally the same as those benefited by the Wildlife Corridors. L. The Town desires to assist the County with funding using a portion of the Willow Ridge Mitigation In-Lieu Fee. AGREEMENT Now, THEREFORE, pursuant to the above recitals, which are incorporated here as the pur- pose of the Parties in entering into this lOA, and in consideration of the matters and things set forth in this lOA, the Parties do mutually agree as follows: 1. Transfer of Funding. Within thirty days after the end of each calendar quarter, the Town shall transfer to the County $5,000 per lot of the Willow Ridge Mitigation In-Lieu Fee paid in the calendar quarter. 2. Use of Funding by the County. The County shall use the funds received from the Town pursuant to paragraph 1 above to acquire, maintain, enhance, and improve the Wildlife Corri- dors. 3. Progress Reports. Within sixty days after a written request from the Town (which shall not be made more than once per fiscal year), the County shall provide to the Town a progress and status report identifying the uses of the funds transferred to the County pursuant to para- graph 1 above and explaining the acquisitions, maintenance, acquisition, enhancements, and im- provements made to the Wildlife Corridors with this and any other funding obtained or used by Pima County for these purposes. 4. Ownership and Maintenance. The County shall be responsible for owning, operating, and maintaining the portions of the Wildlife Corridors owned or operated by Pima County as it sees fit, and nothing in this lOA shall be interpreted to grant the Town a proprietary interest in lands acquired by the County as part of the Wildlife Corridors. 5. Term and Termination. This lOA shall be effective when it is recorded with the Pima County Recorder's Office and shall remain in effect until the Willow Ridge Development Agreement terminates on September 14, 2024 or the date the Willow Ridge Mitigation In-Lieu Fee is paid for the last residential lot in the Willow Ridge project, whichever occurs first. a. Termination for Cause. A Party may terminate this lOA for material breach of the lOA by the other Party. Prior to any termination under this paragraph, the Party allegedly in default shall be given written notice by the other Party of the nature of the alleged default. The Party said to be in default shall have 45 days to cure the default. If the default is not cured within that time, the other Party may terminate this lOA. Any such termination shall not relieve either Party from liabilities or costs already incurred under this lOA. b. Cancellation for Conflict of Interest. This lOA is subject to the provisions of A.R.S. ~ 38-511, which provides for cancellation of contracts in certain instances involving conflict of interest. {00002867.DOC I} -2- 9/29/2006 FIe PL c. Effect of Termination. Any termination ofthis IGA shall not relieve any Party from li- abilities or costs already incurred under this IGA, nor affect any ownership of the Subject Project constructed pursuant to this IGA 6. Legal Authority. Neither Party warrants to the other its legal authority to enter into this IGA. If a court, at the request of a third person, should declare that either Party lacks authority to enter into this IGA, or any part of it, then the IGA, or parts of it affected by such order, shall be null and void, and no recovery may be had by either Party against the other for lack of perform- ance or otherwise. 7. Indemnification. a. Mutual Indemnity. To the fullest extent permitted by law, each Party shall indemnify, defend and hold the other Party, its governing board or body, officers, departments, employ- ees and agents, harmless from and against any and all suits, actions, legal or administrative proceedings, claims, demands, liens, losses, fines or penalties, damages, liability, interest, at- torney's, consultant's and accountant's fees or costs and expenses of whatsoever kind and na- ture, resulting from or arising out of any act or omission of the indemnifying Party, its agents, employees or anyone acting under its direction or control, whether intentional, negli- gent, grossly negligent, or amounting to a breach of contract, in connection with or incident to the performance ofthis IGA. b. Notice. Each Party shall notify the other in writing within thirty days of the receipt of any claim, demand, suit or judgment against the receiving Party for which the receiving Party intends to seek indemnification under the provisions of this paragraph. Each Party shall keep the other Party informed on a current basis of its defense of any claims, demands, suits, or judgments under this paragraph. c. Negligence of Indemnified Party. The obligations under this paragraph shall not ex- tend to the negligence of the indemnified Party, its agents or employees. d. Survival of Termination. This paragraph shall survive the termination, cancellation or revocation, whether in whole or in part, of this IGA. 8. Construction of IGA. a. Entire IGA. This instrument constitutes the entire agreement between the Parties per- taining to the subject matter of this IGA, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged in this IGA. b. Amendment. This IGA shall not be modified, amended, altered or changed except by written agreement signed by the Parties. c. Construction and Interpretation. All provisions of this IGA shall be construed to be consistent with the intention of the Parties as expressed in the recitals hereof. d. Captions and Headings. The headings used in this IGA are for convenience only and are not intended to affect the meaning of any provision of this IGA. e. Severability. If any provision of this IGA or the application thereof is declared invalid or void by statute or judicial decision, such action shall have no effect on other provisions and their application which can be given effect without the invalid or void provision or appli- cation, and to this extent the provisions of the IGA are severable. If any provision of this IGA is declared invalid or void, the Parties agree to meet promptly upon request of the other Party in an attempt to reach an agreement on a substitute provision. {00OO2867.DOC I} - 3 - 9/29/2006 FIC PL 9. Legal Jurisdiction. Nothing in this IGA shall be construed as either limiting or extending the legal jurisdiction of the Parties. 10. No Joint Venture. It is not intended by this IGA to, and nothing contained in this IGA shall be construed to, create any partnership, joint venture or employment relationship between the Parties or create any employer-employee relationship between County and any Town em- ployees, or between the Town and any County employees. No Party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including (without limitation) the other Party's obligation to withhold Social Security and income taxes for itself or any of its employees. 11. No Third Party Beneficiaries. Nothing in the provisions of this IGA is intended to cre- ate duties or obligations to or rights in third parties who are not Parties to this IGA or affect the legal liability of any Party to the IGA by imposing any standard of care with respect to the main- tenance of public facilities different from the standard of care imposed by law. 12. Compliance with Laws. The Parties shall comply with all applicable federal, state and local laws, rules, regulations, standards and executive orders, without limitation to those desig- nated within this IGA. a. Anti-Discrimination. The provisions of A.R.S. ~ 41-1463 and Executive Order 75-5, as amended by Executive Order 99-4, issued by the Governor of the State of Arizona are in- corporated by this reference as a part of this I GA as if set forth in full herein. b. Americans with Disabilities Act. This IGA is subject to all applicable provisions of the Americans with Disabilities Act (Public Law 101-336,42 V.S.C. ~ 12101-12213) and all ap- plicable federal regulations under the Act, including 28 CFR Parts 35 and 36. c. Legal Compliance. The Parties hereby agree to comply with all applicable federal, state and local laws related to bond indebtedness and related requirements. 13. Waiver. Waiver by any Party of any breach of any term, covenant or condition herein contained shall not be deemed a waiver of any other term, covenant or condition, or any subse- quent breach of the same or any other term, covenant, or condition herein contained. 14. Force Majeure. A Party shall not be in default under this IGA if it does not fulfill any of its obligations under this IGA because it is prevented or delayed in doing so by reason ofuncon- trollable forces. The term "uncontrollable forces" shall mean, for the purpose of this IGA, any cause beyond the control of the Party affected, including but not limited to failure of facilities, breakage or accident to machinery or transmission facilities, weather conditions, flood, earth- quake, lightning, fire, epidemic, war, riot, civil disturbance, sabotage, strike, lockout, labor dis- pute, boycott, material or energy shortage, casualty loss, acts of God, or action or non-action by governmental bodies in approving or failing to act upon applications for approvals or permits which are not due to the negligence or willful action ofthe Parties, order of any government offi- cer or court (excluding orders promulgated by the Parties themselves), and declared local, state or national emergency, which, by exercise of due diligence and foresight, such Party could not reasonably have been expected to avoid. Either Party rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise due diligence to remove such inability with all reasonable dispatch. 15. Notification. All notices or demands upon any Party to this IGA shall be in writing, unless other forms are designated elsewhere, and shall be delivered in person or sent by mail ad- dressed as follows: {00OO2867.DOC I} - 4- 9/29/2006 FJC PL Town Manager 11555 N. Civic Center Drive Bldg A3 Marana AZ 85653 (520) 382-1900 (520) 382-1901 (Fax) Pima County Administrator 130 W. Congress Tucson AZ 85701 (520) 740-8751 (520) 740-8171 (Fax) 16. Remedies. Any Party may pursue any remedies provided by law for the breach of this lOA. No right or remedy is intended to be exclusive of any other right or remedy and each shall be cumulative and in addition to any other right or remedy existing at law or in equity or by vir- tue of this lOA. The Town: The County: IN WITNESS WHEREOF, County has caused this lOA to be executed by the Chair of its Board of Supervisors, upon resolution of the Board and attested to by the Clerk of the Board, and the Town has caused this lOA to be executed by the Mayor upon resolution of the Mayor and Council and attested to by its Clerk. THE TOWN: THE COUNTY: TOWN OF MARANA, an Arizona municipal corporation PIMA COUNTY, apolitical subdivision of the State of Arizona By: By: Ed Honea, Mayor Sharon Bronson, Chair Board of Supervisors Date: Date: ATTEST: ATTEST: Jocelyn C. Bronson, Clerk Lori Oodoshian, Clerk of the Board {00002867.DOC I} - 5 - 9/29/2006 FIC PL ATTORNEY CERTIFICATION The undersigned attorneys for the Town of Marana and Pima County have determined, each as to their respective client only, that this lOA is in proper form and is within the powers and authority granted under Arizona law to the Town of Marana and Pima County. Frank Cassidy, Town Attorney Deputy County Attorney {00OO2867.DOC I} 6 9/29/2006 FIC PL ~--~ MARANA ~/" November 22, 2006 TOWN OF MARANA COMMUNITY INFORMATION SERVICES Ms. Nicole Fyffe Pima County Administrator's Office 130 W. Congress, 10th Floor Tucson, AZ 85701 Subject: INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN OF MARANA TO PROVIDE MITIGATION FUNDING FOR WILDLIFE CORRIDORS IN THE MARANA AREA Dear Ms. Fyffe: Attached please find three original intergovernmental agreements for the above-referenced project. Please have the agreements executed by the County and recorded, and return one original agreement, with original signatures, and a copy of the recorded agreement to my attention at the address below. Please ensure that Marana Resolution No. 2006-188, enclosed with this letter, is recorded with the agreement. Thank you for very much for your help with this, and please do not hesitate to contact me at (520) 382-1999 if you have any questions. Sincerely, ~~~ Tim Mattix Records and Elections Coordinator Town of Marana, Clerk's Office Attachments: Three original intergovernmental agreements One copy ofMarana Resolution No. 2006-188 tm 11555 W. CIVIC CENTER DRIVE, BLDG. A1 _ MARANA, ARIZONA 85653.7007 _ TELEPHONE: (520) 382-1999 - FAX: 382-1998