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HomeMy WebLinkAboutResolution 2001-128 IGA with MUSD for use of community park MARANA RESOLUTION NO. 2001-128 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AUTHORIZING THE TOWN OF MARANA TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE MARANA UN1F]ED SCHOOL DISTRICT NO. 6 FOR CONSTRUCTION, OPERATION AND MAINTENANCE OF JOINT USE COMMUNITY PARKS AT COYOTE TRAIL ELEMENTARY SCHOOL AND TWIN PEAKS ELEMENTARy SCHOOL. WHEREAS, pursuant to A.R.S. § 11-952, municipalities are empowered to enter into intergovermnental agreements for the.joint exercise of government powers; and WHEREAS, the Town of Marana and the Marana Unified School District No. 6 desire to engage in. a mutually beneficial venture for the construction, operation and maintenance of joint use commumty parks on properties used for school purposes; and WHEREAS, the Intergovernmental Agreement with the Marana Un/fled School District No. 6 would greatly benefit the citizens of the Town of Marana and would he in the Town's best interest. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana that the Intergovernmental Agreement attached hereto as Exhibit "A" is hereby approved, and the Mayor is authorized and directed to execute the Agreement between the Town of Marana and the Marana Unified School District No. 6 for Construction, Operation and Maintenance of Joint Use Community parks at Coyote Trail Elementary School and Twin Peaks Elementary School. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, tiffs 6th day of November, 2001. ATTEST: ' SUTTON, JR. APPROVED AS TO FORM: As Town A~omey and not personally Marana, Arizona Resoluhon No. 98-85 Page 1 of 1 F. ANN RODRIG~ f RECORDER RECORDED BY: L .> DEPUTY RECORDER 7864 ROOC ~T: 11733 i ~: 2470 NO. OF PAGES: 13 SEQUENCE: 20020270597 02/08/2002 AG 16:35 SMARA TOWN OF MARANA ATTN: TOWN CLERK 13251 N LON ADAMS RD MARANA AZ 85653 MAIL AMOUNT PAID $ 12.00 ~--~ r _ 1 MARANA ~/ 1 '" TOWN Of MARAN A INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF MARANA AND THE MARANA UNIFIED SCHOOL DISTRICT FOR CONSTRUCTION, OPERATION AND MAINTENANCE OF JOINT USE COMMUNITY PARKS 1 ~ ? COYOTE TRAIL ELEMENTARY SCHOOL -- Ll AND ~ TWIN PEAKS ELEMENTARY SCHOOL r!; Intergovernmental Agreement between Town of Marana and Marana Unified School District No.6 for Construction, Operation and Maintenance of Joint Use Community Parks at Coyote Trail Elementary School and Twin Peaks Elementary School This Intergovernmental Agreement is entered into this -!!. day of Nov. ,2001, by and between Town of Marana, a body politic and corporate of the State of Arizona (liT own ") and the Marana Unified School District No.6, an Arizona unified school district ("District"). Recitals A Town and District may contract for services and enter into agreements with one another for joint or cooperative action pursuant to AR.S. 9 11-951, et seq. B. The District is authorized by A.R.S. 9 15-342(13) to enter into intergovernmental agreements and contracts with other governing bodies as provided in A. R. S. 9 11- 952. C. The Town is authorized by AR.S. 915-364(B) to expend public monies and enter into agreements with the District for the construction, development, cooperative maintenance, operation and use of joint use community parks on properties used for school purposes. D. The District is authorized by AR.S. 9 15-365(A) to enter into agreements with the Town providing for the construction, development, cooperative maintenance, operation and use of joint use community parks on properties used for school purposes and under the control of the District. The District may expend public monies forthe construction and development of such joint use community parks in cooperation with the Town. E. The District is authorized by AR.S. 915-363 to contract with Town for the purpose of providing joint use community parks and may organize and conduct such recreation activities which contribute to the physical, mental and moral welfare of youths residing in the vicinity. . , . , --, ...:Jo F. Following construction of the parks (the "Projects"), the District desires to permit the use of its property by the public at large in the Town to the extent practicable given school needs and without financial impact to the taxpayers of the District. District desires the Projects provide for both school and public park purposes. ... 1 1 G. Town and District desire to provide an understanding for the construction, development, cooperative maintenance, operation and use of the Projects. H. Town and District agree that Town shall design and construct the Projects, in consultation with District throughout the design and construction process. Agreement 1. Purpose. The purpose of this Intergovernmental Agreement is to set forth the responsibilities ofthe parties forthe design, construction, maintenance, o'peration and use of the Projects and to address legal and administrative matters between the parties. The foregoing recitals are hereby incorporated herein as though fully set forth. 2. Projects. The facilities to be constructed, maintained and op~rated pursuant to this Agreement are Joint Use Community Parks Located at Coyote Trail Elementary School and Twin Peaks Elementary School. That portion of the schools within the buildings are excluded from this Agreement. That portion of each school shall be used by District for parking and playgrounds during normal school hours, including summer sessions, is set forth in Paragraph 6 hereof. Use of these facilities after school and weekends will be joint, with District having first priority. Use of the school sites outside the fenced portion of the sites: shall be joint, with District having first priority. . 3. Funding of Projects. 4. a. The final cost of the construction of the Projects shall be that necessary to complete the Projects, primary Project contract costs, and any change orders or supplemental written agreements approved by Town for unanticipated work. Town shall pay any and all costs of the Projects that are approved in writing by the Town and District. If District desires change orders which are not approved by Town, then District may initiate a change order, and District shall be responsible for resulting costs. District shall be responsible for no other costs associated with the design and construction of the Projects. Design and Construction Responsibilities. a. Project scope. Town and District shall mutually identify the key elements of Projects and Project priorities. At a minimum, the Projects shall include the Phase I Sports Fields and Parking consisting of a combination two (2) soccer field/softball field facility, a combination two (2) soccerfield/baseball field facility, parking and public restrooms and Phase II play yards. Costs will include architectural, engineering, construction, utility relocation and , , ".. ... ... 2 , . equipment costs needed for the completion and start up of the Projects. b. Design and construction. Town is hereby authorized to design and construct the Projects. i. Desian. If consultants are employed to design the Projects, Town shall prepare the contracts for design and choose the consultants. Town shall have the usual rights of the owner of a public design contract, including the authority to approve changes and make payments. District shall have the right to reject construction elements which will be constructed on District property on the basis of safety or long-term maintenance cost considerations. ii. . Construction. Town shall advertise, award, execute and administer construction contracts for the Projects. Town shall have the usual rights of the owner of a public construction contract, including the authority to approve changes, c. Utilities. District shall coordinate all utility relocations within the Project boundaries. District shall provide to Town the use of an existing irrigation water meter at Coyote Trail. The Town shall be responsible for procuring new electric service. The Town shall separate the irrigation systems at Coyote Trail so that all other utilities including the water for the new baseball field and soccer fields and public restrooms are metered separate from the school facilities. d. Public participation. Town shall manage all public participation processes deemed necessary by Town and District for design and construction of the Projects. Town sh~1I appoint a representative who shall participate in all public participation processes. Public meetings will be scheduled in accordance with Town policies. e. District participation. Town shall provide District the opportunity to participate in and provide approval of all major items that affect the design of the Projects. District shall meet with Town to coordinate recreational facility design standards of Town and District. 1 f. Point of contact. District and Town shall each, in writing, provide a single point of contact for these Projects. :-: L.. h. Construction drawings and specifications. Following completion of the Project designs, Town shall provided the construction drawings and specifications to District for comment. District shall review and comment on all engineering studies, technical data and specifications provided by 3 Town for the design and construction of the Projects under a schedule determined by Town and District to ensure timely progress on and completion of improvements. In no event, however, shall District have less than ten (10) working days to review and comment, unless mutually agreed by the parties in writing. ' i. Town inspection and approval. Town shall inspect construction and approve the completed Projects. District shall allow Town personnel and contractors reasonable access to the Project sites before, during and after construction. J. District acceptance of Projects. At the conclusion of Project construction and approval by Town, District shall accept ownership of the Project facilities. k. Continued ownership and operation. District shall not dispose of or encumber its title or other interests in the Project facilities as long as this Agreement is in force. I. i. Insurance; Repair and replacement. District agrees to insure or self-insure the Softball Field/Soccer Fields, the Parking Lot and the Fence and to repair or replace them if damaged or destroyed. The Town agrees to insure or self-insure the Baseball Field/Soccer Fields, Public Restroomsand Play Yards and to repair or replace them if damaged or destroyed. ii. Liability Insurance. The District shall, and the Town shall, each carry public liability insurance with aggregate limits of not less than Five Million Dollars ($5,000,000.00) covering their own activities and the activities of invitees and third parties during such times as the District and Town have the right to utilize the facilities. j. If similar facilities are constructed on the Twin Peaks Elementary School Campus, the respective rights and obligations of the District and Town with regard to use, design and construction of improvements, insurance, utilities, maintenance and repair shall be substantially the same as for the Coyote Trail facility described herein, unless otherwise expressly agreed in writing by both the Town and the District. -- oJ' - . ..? 5. Insurance. When requested by the other party, each party shall provide proof to the other of their worker's compensation, automobile, accident, property damage, and liability coverage or program of self-insurance covering the acts and omissions of the party and its invitees. 4 6. Use of Project Facilities. a. Use of Facilities. The facilities constructed pursuant to the Coyote Trail Plan shall be used as follows: i. Parking to be used by District during school hours, summer activities and after school activities. Parking shall be available for Town at all other times. In addition, ten (10) parking spaces at the north end of the existing Coyote Trail parking lot shall be designated for Town use at all times. ii. The Softball Field/Soccer Fields within the proposed new fence shall be used by District during school hours, summer activities and for after school activities. Use is available to the Town at all other times. iii. The Baseball Field/Soccer Fields, Public Restrooms and Play Yards shall be available for Town use at all times other than when the District has reserved'use of the facilities with the Town as would any other user, except that District shall not be charged a user fee. , b. Scheduling. Town shall maintain a master schedule for use of the Project facilities when noUn use by the District and execute use agreements with each user group or league for use of the facilities. When the facilities are being used for District's school purposes, they shall be under the District's control. When the facilities are not being used for District purposes, Town shall, pursuant to its normal policies relating to use of recreational areas it owns or controls, make the facilities available to other persons and organizations, and to the general public. c. Fees for use. Town shall not charge a fee for the public use of the Project facilities that is more than a fee charged by the Town for similar use within the Town park system. Town shall regularly advise District of the Town park' system fee schedule. Town shall not charge District a fee for any use of the Project facilities by District. 7. Maintenance. a. District shall continue to maintain and repair the new and existing parking and the fields within the proposed fence, including the Softball Field/ Soccer Fields. District shall pay for water, power and other utilities for this portion of the facilities. 5 b. Tewn shall maintain and repair all greunds and facilities eutside the fenced area, including the Baseball Field/Soccer Fields, Public Restroems and Play Yards. Town shall pay fer water and pewer fer this pertien of the facilities. 8. Term and Termination of Intergovernmental Agreementa. a. Effective Date. This Intergevernmental Agreement shall be effective fellewing executien and approval by the geverning bedies ef the Parties, and en the date it is recerded with the Pima Ceunty Recerder. b. Term. To. the extent permitted by law, this Intergovernmental Agreement shall remain in effect fer twenty-five years fellewing the date ef completion efcenstructien ef the Projects, unless terminated earlier accerding to the terms ef this Agreement. The Tewn may extend the term fer an additional 25 years by giving the District written notice ef such renewal during the last year ef the initial term. c. Termination. i. Fer cause. A party may terminate this Agreement for material breach ef the Agreement by the other party. Prior to any termination under this paragraph, the party allegedly in default shall be given written notice by the ether party ef the nature ef the alleged default. The party said to be in default shall have forty-five days to cure the default. If the default is not cured within that time, the other party may terminate this Agreement. Any such termination shall net relieve either party from liabilities or costs already incurred under this Agreement. ii. Atwill. Following censtruction of, and at least ene year of operation of, the Project facilities, this Intergevernmental Agreement may be terminated by Town or District by giving sixty days written notice. Such termination shall not relieve either party from those liabilities er cests already incurred under this Intergovernmental Agreement. (1) If District terminates this Intergovernmental Agreement under Paragraph 8.c.ii, At will, District shall pay Town the sum determined by multiplying the total cost ef improvements paid by the Tewn times a fraction where the number ef years remaining en the initial term of this Agreement is the numerator and twenty-five (25) is the denominator, as compensatien fer imprevements made by Tewn. 6 (2) If Town terminates this Agreement prior to expiration of the term hereof, District shall not be required to pay Town for any improvements made hereunder. iii. A.R.S. & 38-511. This Intergovernmental Agreemeritis subject to the provisions of A.R.S. 938-511. iv. Non-appropriation. It is acknowledged that all obligations of the Town and District hereunder to make payments to or to incur costs for the specified projects shall be subject to annual appropriation by the respective governing bodies and to any limitation imposed by budget laws or other applicable state or local law or regulation, and are undertaken subject to and in accordance with such processes and constitutional limitations. Notwithstanding any other provision in this Intergovernmental Agreement, this Intergovernmental Agre~ment may be terminated if for any reason the Town Councilor the District Board does not appropriate sufficient monies for the purpose of maintaining this Intergovernmental Agreement. v. Legal authoritv. Neither party warrants to the other its legal authority to enter into this Agreement. If a court, at the request of a third person, should declare that either party lacks authority to enter into this Agreement, or any part of it, then the Agreement, 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 performance or otherwise. vi. Ownership of property upon termination. Any termination of this Agreement shall not relieve any party from liabilities or costs already incurred under this Agreement. Any usable personal property, real property and fixtures thereto acquired for purposes of this Agreement shall be the property of District at termination of this Agreement. 9. Indemnification. a. Mutual Indemnity. To the fullest extent permitted by law, each party to this Agreement shall indemnify, defend and hold the other party, its governing board or body, officers, departments, employees 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, attorney's, consultants and accountant's fees or costs and expenses of whatsoever kind and nature, resulting from or arising out of any act or omission of the indemnifying party, its agents, employees or anyone 3 7 acting under its direction or control, whether intentional, negligent, grossly negligent, or amounting to a breach of contract, in connection with or incident to the performance of this Agreement. b. Preexisting conditions. To the fullest extent permitted by law, each party to this Agreement shall indemnify, defend and hold the other party, its governing board or body, officers, departments, employees and agents, harmless from and against any claims and damages, as fully set out above in paragraph 8.a, resulting from or arising out of the existence of any substance, material or waste, regulated pursuant to federal, state or local environmental laws, regulations or ordinances, that is present on, in or below or originated from property owned or controlled by the indemnifying party prior to the execution of this Intergovernmental Agreement. c. Notice. Each party shall notify the other, in writing within thirty (30) days of the receipt of any claim, demands, suits orjudgments against the receiving- party for which the party intends to invoke the provisions of this Article. Each party shall keep the other party informed on a current basis of its defense of any claims, demands, suits, or judgments under this Article. d. Negligence of indemnified party. The obligations under this Article shall not extend to the negligence of the indemnified party, its agents or employees. e. Survival of termination. This Article shall survive the termination, cancellation or revocation, whether in whole or in part, of this I ntergovernmental Agreement. 10. Books and records. a. Each party shall keep and maintain proper and complete books, records and accounts for the applicable period of time required by law, which shall be open for inspection and audit by duly authorized representatives of any other party at all reasonable times. 1 b. All design and construction drawings, records, documentation and correspondence shall be the property of District at the completion of the Projects, except copies maintained by Town for its records. Within six months after acceptance of Projects by District, Town shall provide l'As_ Built" drawings to District, at no cost to District. = . z 11. Fiscal Agent. The Town shall serve as fiscal agent for the design and construction 8 phase of the Projects. 8 12. Notification. All notices or demands upon any party to this agreement shall be in writing, unless other-forms are designated elsewhere, and shall be delivered in person or sent by mail addressed as follows: To Marana Unified School District NO.6: To Town: District Superintendent Marana Unified School District No.6 11279 West Grier Road Marana, AZ 85653 Director Town of Marana Parks and Recreation 13291 N. Lon Adams Marana, AZ 85653 13. Construction of Agreement. a. Entire Agreement. This instrument constitutes the entire agreement between the parties pertaining to the subject matter hereof, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged herein. b. Amendment. This agreement shall not be modified, amended,altered or changed except by written agreement signed by both parties. c. Construction and Interpretation. All provisions of this Agreement shall be construed to be consistent with the intention of the parties' as expressed in the recitals hereof. d. Captions and headings. Captions and headings are for index purposes only and shall not be used in construing this Agreement. e. Severability. In the event that any provision of this Agreement 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 orvoid provision or application, and to this extent the provisions of the Agreement are severable. In the event that any provision of this Agreement 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. 3 14. Legal Jurisdiction. Nothing in this Intergovernmental Agreement shall be construed as either limiting or extending the legal jurisdiction of Town or District. .:: 15. No Joint Venture. It is not intended by this Intergovernmental Agreement to, and 9 nothing contained in this Intergovernmental Agreement shall be construed to, create any partnership, joint venture or employment relationship between the 9 parties or create any employer employee relationship between the District and any Town employees, or between the Town and any District employees. Neither party shall be liable for any debts, accounts, obligations nor 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. 16. Workers' Compensation. An employee of either District or Town shall be deemed to be an "employee" of both public agencies while performing pursuant to this Intergovernmental Agreement, for purposes of A.R.S. 9 23-1022 and the Arizona Workers' Compensation laws. The primary employer shall be solely liable for any worker's compensation benefits which may accrue. Each party shall post a notice pursuant to the provisions of A.R.S. 923-906 in substantially the following form: All employees are hereby further notified that they may be required to work under the jurisdiction or control or within the jurisdictional boundaries qf another public agency pursuant to an intergovernmental agreement or contract, and under such circumstances they are deemed by the laws of Arizona to be employees of both public agencies for the purposes of workers' compensation, 17. No Third Party Beneficiaries. This Agreement is not intended to and shall not create any right in any person or entity as a third party beneficiary. 18. 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 designated within this Intergovernmental Agreement. a. Anti-Discrimination. The provisions of A. R.S. 9 41-1463 and Executive Order Number 994 issued by the Governor of the State of Arizona are incorporated by this reference as a part of this Intergovernmental Agreement. b. Americans with Disabilities Act. This Intergovernmental Agreement is subject to all applicable provisions of the Americans with Disabilities Act. (Public Law 101-336, 42 U.S.C. 12101-12213) and all applicable federal regulations under the Act, including 28 CFR Parts 35 and 36. -:oJ 19. Waiver. Waiver by either 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 subsequent breach of the same or any other term, covenant, or condition herein contained. Atl 10 20. Force Majeure. A party shall not be in default underthis Agreement if it does not fulfill any of its obligations under this Agreement because it is prevented or delayed in doing so by reason of uncontrollable forces. The term "uncontrollable forces" shall mean, for the purpose of this Agreement, any calise 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, earthquake, lightning, fire, epidemic, war, riot, civil disturbance, sabotage, strike, lockout, labor dispute, 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 of the parties, order of any government office'r 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. 21. Remedies. Either party may pursue any remedies provided by law for the breach of this Agreement.. 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 virtue of this Agreement. In Witness Wherepf. the Parties hereto have executed this Agreement. MARANA UNIFIED SCHOOL DIST~o/ NO.6 /' t:t' By/jN~~ Its Assistant Superintendent ..."",nr"".. ~' OF M..q ~ ~. ~~ ~""""",,,~~ sO~.., ~ ~ ::: L - S cORPORATE " ~ .....-.:: 000 ifS _ - = = - - .. SEAL;: - ::; ~ ~ !'/III ~ ~ , ~ ~ "'1 ~""Ill\'\~ ~ ~/jIZ. '\9~,\~ ."'Un\-- TOWN OF MARANA By i ~ " 1 11 Intergovernmental Agreement Determination The foregoing Intergovernmental Agreement between Town of Marana and the Marana Unified School District NO.6 has been reviewed pursuant to A.R.S. 9 11-952 by the undersigned, who have determined that it is in proper form and is within the powers and authority granted under the laws of the State of Arizona to those parties to the Intergovernmental Agreement represented by the undersigned. 1:\tiles\dccsIMARA01\860613\AGREE\A19527.WPD .or: 12