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Home My WebLink About12/05/2006 Blue Sheet Settlement Agreement Villas at Sombrero Peak TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: December 5, 2006 AGENDA ITEM: M.2 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Resolution No. 2006-206: Relating to Development; approving and authorizing the Mayor to execute a settlement agreement with Stewart Title and Trust as Trustee under Trust No. 1943 concerning archeologi- cal mitigation for the Villas at Sombrero Peak. DISCUSSION This is a settlement agreement negotiated concerning the archeological dispute which is the sub- ject of the executive session on tonight's agenda. If the Town Council accepts the Town Attor- ney's recommendations resulting from the executive session, this settlement agreement should be approved to carry out those recommendations. RECOMMENDATION The Town Attorney recommends adoption of Resolution No. 2006-206, approving and authoriz- ing the Mayor to execute the settlement agreement. SUGGESTED MOTION I move to adopt Resolution No. 2006-206. {00003023.DOC /} FJC/cds 11/29/06 n- ......_~....._"""...-..-_."'..""''''''.._~''"M MARANA RESOLUTION NO. 2006-206 RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A SETTLEMENT AGREEMENT WITH STEWART TITLE AND TRUST AS TRUSTEE UNDER TRUST NO. 1943, CONCERNING ARCHEOLOGICAL MITIGATION FOR THE VILLAS AT SOMBRERO PEAK. WHEREAS the Mayor and Council find that the terms and conditions of the Settlement Agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the settlement agreement between the Town of Marana and Stewart Title and Trust as Trustee under Trust No. 1943, 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. BE IT FURTHER RESOLVED that 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 aforementioned agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 5th day of December, 2006. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00003024.DOC I} FJC/cds SETTLEMENT AGREEMENT WHEREAS, Stewart Title and Trust of Tucson, an Arizona corporation as Trustee under Trust #1943, (hereinafter "Trust 1943") has undertaken to satisfy the Town of Marana's requirements for Protection of Cultural Resources on privately-owned land within Marana as established by Title 20 of the Town of Marana Land Development Code, (hereinafter "Title 20"), in order to obtain necessary authorization to undertake and commence development, ground disturbance and construction (hereinafter "Development") on land owned by the Trust and/or its successors in interest; WHEREAS, the proposed area of Development is located on approximately 23 acres of privately owned land near the intersection of Silverbell Road and Continental Reserve Loop in Marana, Arizona, commonly referred to as Villas at Sombrero Peak, (hereinafter "Property"); and WHEREAS, Trust 1943 retained Aztlan Archaeology, Inc. (hereinafter "Aztlan") to take all steps necessary to comply with Title 20 including preparation of a data recovery plan for specific areas of the Property which was submitted to the Arizona State Museum for review and approved by the Arizona State Museum on January 31, 2006, (hereinafter "Approved Plan"); and WHEREAS, Aztlan undertook to perform work at the site in accordance with the Approved Plan; and WHEREAS, after Aztlan began work at the site, a portion of the property consisting of a triangle of land bounded by the Western Area Power Authority easement on the southwest, Silverbell Road on the north and the drainageway on the southeast (the "Triangle") was removed from the Approved Plan because the parties believed there was to be no construction within the Triangle; and WHEREAS, Trust 1943 intended to comply with all requirements of Title 20, and complete all work required by the Approved Plan; and WHEREAS, on July 26, 2006 the Town of Marana expressed preliminary concern that a dispute existed between the Town of Marana and Trust 1943 with respect to the adequacy of work performed by Aztlan in accordance with the Approved Plan; and WHEREAS, Trust 1943 has now conveyed title to the Property to a successor in interest represented by DESCO Southwest (hereinafter "DES CO") but Trust 1943 has retained the right on behalf of itself and its agents to enter upon the Property to complete work as may be necessary to satisfy the requirements of the Approved Plan and Title 20; and WHEREAS, on September 7, 2006 the Town of Marana expressed its conclusion that the work performed by Aztlan did not comply with the Approved Plan and contended a {OOOO3017.DOC I} - 1 - 11/28/20065:26 PM substantial amount of additional work would have to be performed to achieve compliance with the Approved Plan and Title 20; and WHEREAS, DESCO Southwest has indicated to the Town of Marana that it may expand the scope of Development and the Town of Marana has indicated that the Approved Plan applies only to Development within the specific areas covered by the Approved Plan as modified by the elimination of the Triangle; and WHEREAS, Trust 1943 desires to settle and resolve its dispute with the Town of Marana pertaining to compliance with the Approved Plan; NOW THEREFORE, IT IS AGREED as follows: 1. Assumption of Responsibility. The Town of Marana agrees to assume full and complete responsibility for satisfying the requirements of Title 20 and the Approved Plan to the extent necessary to entitle Trust 1943, DES CO, and their respective principals, assigns and successors in interest to all approvals which may be required pursuant to Title 20 for Development to occur within the areas covered by the Approved Plan (as modified by the elimination of the Triangle), including but not limited to compliance with all statutory and regulatory requirements pertaining to human remains, burial sites, and/or cremations sites and all other acts which may be necessary to entitle the title owner of the Property or its agents and assigns to obtain a certificate of compliance, a certificate of approval, a certificate of appropriateness, and a certificate of no effect, as may be necessary to proceed with Development. 2. Discharge of Responsibility. Trust 1943 and DESCO and their respective principals, assigns and successors in interest (hereinafter "Released Parties") are hereby discharged, released and relieved of all responsibility for compliance with Title 20 and performance of the Approved Plan and all matters related thereto with respect to the specific area covered by the Approved Plan (as modified by the elimination of the Triangle), and all such responsibilities are hereby assumed by the Town of Marana, including but not limited to compliance with regulatory or statutory requirements pertaining to cultural resources, burial sites, and human remains. This assumption of responsibility extends to conditions known to exist and other conditions not now known to exist but which may be discovered during the performance of the work and may materially increase the cost of compliance with the requirements of Title 20 and the Approved Plan. 3. Right of Entry. The Trust hereby authorizes the Town of Marana and its agents and independent contractors to enter upon the Property for the sole and limited purpose of performing the tasks necessary to pursue and complete the obligations of the Town of Marana under Section 1 of this Agreement. In the event this authority is withdrawn by any of the Released Parties, then the obligations of the Town of Marana shall be suspended until right of entry is granted. {OOOO301 7.DOC /} - 2- 11/28/20065:26 PM ~"----"""""_-=."",,,-~,,,,-~,,-.~,,-,,,,,~"'-<.".",..,, 4. Consideration. In consideration of the promise of the Town of Marana as set forth herein, Trust 1943 agrees to pay to the Town of Marana the sum of Two Hundred Thirty-Five Thousand Dollars ($235,000.00) within five days after approval of this agreement by the Town of Marana. 5. Backfill Responsibility within the Triangle. Because of work done by Aztlan within the Triangle before it was eliminated from the Approved Plan, the Triangle needs to be backfilled. The Town of Marana shall be responsible for performing necessary backfill in the Triangle. 6. Expansion of Scope of Proposed Construction. This Agreement does not extend to Development which has been proposed by DES CO outside the specific area covered by the Approved Plan (as modified by the elimination of the Triangle). 7. Curation Fees. Trust 1943 is responsible for the payment of museum or curation fees with respect to artifacts uncovered and currently held by Aztlan. 8. Completion of Work. Except as otherwise agreed between the Town and DESCO, the Town of Marana shall complete all field work required by this Agreement as expeditiously as possible but in no event later than March 1, 2007, and shall issue promptly upon completion of the work all certificates and approvals which may be required by Title 20 in order to proceed with Development. The Town of Marana shall be in violation of its obligations under this paragraph if all certificates and approvals required by Title 20 with respect to the work covered by this agreement are not issued by the time Development is otherwise ready to proceed. 9. Attorney Fees. In the event of a breach of this Agreement and litigation is pursued, the prevailing party shall be entitled to recover attorneys' fees and costs. 10. Entire Agreement and Successors and Assigns. This Settlement Agreement contains the entire agreement with respect to the satisfaction of the requirements of Title 20 and the Approved Plan in order for Development to proceed within the specific area of the Property covered by the Approved Plan (as modified by the elimination of the Triangle), and shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Dated: TRUST 1943 TOWN OF MARANA By: Its: By: Its: {OOOO301 7.DOC I} -3- 11/28120065:26 PM ATTEST: Marana Town Clerk APPROVED AS TO FORM: Marana Town Attorney {OOOO3017.DOC I} -4- 11128/20065:26 PM