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HomeMy WebLinkAboutResolution 2017-053 Approving IGA regarding Construction, Operation and Maintenance of Disc Golf Course MARANA RESOLUTION NO. 2017-053 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT BETWEENTHE PIMA COUNTY' REGIONAL FLOOD CONTROL DISTRICT AND 'THE TOWN OF MARANA FOR CONSTRUCTION, OPERATION, AND MAINTENANCE OF A DISC GOLF COURSE WHEREAS in January 2015, the Marana Town Council adopted the Town of Marana Strategic Plan 111, identifying Recreation as one of its five focus areas, with the principle statement "We will design, build and maintain appropriate high quality recreational amenities to enhance the quality of life for Marana residents and visitors"'; and --I WHERE'AS the Pima County Regional Flood Control District ("District") owns property generally located on the west side of the Santa Cruz River northeast of Coachline Boulevard and the Town desires the use of a portion of this property to construct, operate, and maintain a disc golf course; and WHEREAS the Town and the District may enter into agreements with one another for joint and cooperative action pursuant to A.R.S. § 11-95 1, et seq.; and WHEREAS the Mayor and Council find that the terms and conditions of the intergovernmental agreement addressed by this resolution 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 Intergovernmental Agreement between the Pima County Regional Flood Control District and the Town of Marana for construction, operation, and maintenance of a disc golf course, attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved and the Mayor is hereby authorized and directed to execute it for and on behalf of the Town of Marana, and 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 agreement. 00052798.1)0(-"X/I Marana ReSOILItlon No.2017-053 PASSED AND ADOP-114) B Y TI IE VI AY(W. AND COUNCIL 01 'I'�fL TOWN OF M.ARA.N.A, ,ARIZONA, this 20th day of June, 20:17 Mayor Edonea .AT`I'ESTa .APPROVED AS TO FORM: d y celyn C. ronson, Town Clerk r Ca y, Town Atto ey r' MARANA AZ ESTABLISHED 1977 00052798,Dacx i1 Marana Resolution No.2017-053 - 2 - INTERGOVERNMENTAL AGREEMENT BETWEEN THE PIMA COUNTY REGIONAL FLOOD CONTROL DISTRICT AND THE TOWN OF MARANA FOR CONSTRUCTION, OPERATION, AND MAINTENANCE OF A DISC GOLF COURSE (TOWN OF MARANA,PIMA COUNTY,ARIZONA) This Intergovernmental Agreement ("Agreement") is entered into by and between the PIMA COUNTY REGIONAL FLOOD CONTROL DISTRICT (the "District"), a political taxing subdivision of the State of Arizona, and the TOWN OF MARANA (the "Town"), an Arizona municipal corporation, pursuant to Arizona Revised Statutes Section (A.R.S. §) 11-952. RECITALS A. The Town and the District have statutory authority to enter into intergovernmental agreements for joint and cooperative action pursuant to A.R.S. § 11-952. B. The District owns property generally located on the west side of the Santa Cruz River northeast of Coachline Boulevard on portions of Pima County Assessor's Parcel Number 226- 08-007L and Pima County Assessor's Parcel Number 226-07-005J (the "Property). C. The Town desires the use of a portion of the Property to construct, operate, and maintain a disc golf course (the "Prof ect"). D. The District and the Town desire to establish specific responsibilities as to the construction, operation, and maintenance of the Project and related facilities located on District property. AGREEMENT SECTION 1. PURPOSE The purpose of this Agreement is to set forth the responsibilities of the parties regarding the construction, operation, and maintenance of the Project, the property rights necessary for the Project, and to address legal and administrative matters among the parties. SECTION 2. THE PROJECT The Project consists of the construction, operation, and maintenance of a disc golf course located on an approximately 41-acre portion of the Property, as depicted in Exhibit A, attached hereto and incorporated herein by this reference. The proposed layout of the disc golf course is depicted in Exhibit B, attached hereto and incorporated herein by this reference. Disc Golf"Course IGA - 1 - SECTION 3. TOWN OBLIGATIONS AND RESPONSIBILITIES 3.1. The Town shall design and construct the Project on an approximately 41-acre portion of the Property (the "Project Area"), pursuant to plans approved by the District. Construction of the Project includes construction and installation of tee pads, targets, rock-lined, raked earth paths between holes, and appropriate signage. 3.2. The Town shall purchase all necessary equipment and materials for construction of the Project. 3.3. The Town shall obtain all necessary permits, if any. 3.4. During construction of the Project, the Town will have responsibility for all grounds, structures, and improvements, and all activities occurring within the Project Area including all necessary inspections, maintenance and repair of the Project. 3.5. In the spirit of collaboration, the Town shall confer with the District throughout the construction of the Project for the purpose of facilitating the timely and satisfactory completion of the Project. 3.6. The Town shall confer with the District before constructing any improvements, structures or other modifications not included in the Project plans approved by the District, including the possible construction of additional holes or an additional disc golf course at the site. 3.7. on completion of the Project and all related features and appurtenances, the Town shall be responsible for regular inspection and maintenance of the Project Area, and shall assume full responsibility and liability for the Project and all related facilities. 3.8. The Town shall keep the Project Area in good order and repair, and shall not commit waste of, or damage to, the Project Area. 3.9. The Town shall operate the disc golf course and ensure that the disc golf course is open to the general public during daylight hours, seven days a week, 365 days a year. SECTION 4. DISTRICT OBLIGATIONS AND RESPONSIBILITIES 4.1. Upon execution of this Agreement, the District shall authorize the Town to enter upon the District-owned property described in the attached Exhibit A for the purpose of constructing the Project and all related improvements, and upon completion of construction, operating and maintaining a disc golf course as described in this Agreement. 4.2. The District shall confer, as needed, with the Town throughout the construction of the Project for the purpose of facilitating a timely and satisfactory completion of the Project. 4.3. The District may enter upon and use the Project Area for any purpose not inconsistent with the Project, including inspecting the Project Area to ensure that the Town is fulfilling its obligations under this Agreement. The District may enter upon the Project Area and take any action reasonably necessary to keep the Project Area free of waste or damage. Except when the District determines an emergency requires immediate entry and action, the District shall provide the Town 30 days' written notice before entering or taking action under this SECTION 4.3. Disc Golf Course IGA - 2 - SECTION 5. OWNERSHIP OF PROJECT FACILITIES 5.1. Ownership of the disc golf course components constructed and installed by the Town, and composed of material other than earth, rock, or vegetation (the "Project Facilities"), shall vest in the Town and no other action shall be necessary to establish the Town's ownership. 5.2. Unless the District in writing allows or requires the Town to abandon the Project Facilities in place, the Town at its sole expense shall remove the Project Facilities on or before the expiration or within 90 days after any earlier termination of this Agreement. Such removal shall be done in a workmanlike and careful manner and without interference or damage to any other facilities or operations on the Property, and the Town shall leave the Property in as close to its pre-Project condition as is reasonably possible. 5.3. The parties agree to notify each other in case any event occurs after the Project is completed requiring ground disturbance or construction or alteration of improvements in the Project Area; maintenance or repair activity in the Project Area beyond that necessary to keep up with ordinary wear and tear; or use of the Project Area beyond the scope ordinarily anticipated as part of the Proj ect. SECTION 6, EFFECTIVE DATE DURATION AND TERMINATION 6.1. This Agreement shall be effective upon the date of complete execution by the parties and shall remain in effect for ten years following the date of completion of construction of the Project, unless terminated earlier according to the terms of this Agreement. 6.2. This Agreement may be extended or terminated by mutual agreement of the parties and execution of an amendment that accomplishes such action. 6.3. A party may terminate this Agreement for material breach of 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 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 Agreement. Any such termination shall not relieve either party from liabilities or costs already incurred under this Agreement. 6.4. Following construction of, and at least one year of operation of, the Project, the District may terminate this Agreement for any reason or no reason by giving 180 days' written notice to the Town. 6.5. Following construction of, and at least one year of operation of, the Project the Town may terminate this Agreement for any reason or no reason by giving 60 days' written notice to the District. 6.6. This Agreement is subject to the provisions of A.R.S. § 38-511 which provides for cancellation of contracts in circumstances involving conflicts of interest. 6.7. Termination shall not relieve either party from those liabilities or costs already incurred under this Agreement. SECTION 7. LEGAL JURISDICTION Nothing in this Agreement shall be construed as either limiting or extending the legal jurisdiction of the District or the Town. Disc Golf Course IGA - 3 SECTION S. NO JOINT VENTURE This Agreement shall not be construed to create any partnership, joint venture or employer- employee relationship between the Town and the District. No party shall be liable for any debts, accounts, obligations, or other liabilities whatsoever of the other party as a result of this Agreement, including, without limitation, any party's obligation to withhold Social Security and income taxes for itself or its employees. SECTION 9. NO THIRD PARTY BENEFICIARIES This Agreement shall not create any right to any person or entity as a third party beneficiary. SECTION 10, 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 Agreement. The laws and regulations of the State of Arizona shall govern the rights of the parties, the performance of this Agreement and any disputes under this Agreement. Any action relating to this Agreement shall be brought in an Arizona court. 10.1. Anti-Discrimination. The provisions of A.R.S. § 41-1463 and Executive order Number 2009-09 issued by the Governor of the State of Arizona are incorporated by this reference as a part of this Agreement. 10.2. Americans with Disabilities Act. This 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. SECTION 11, FORCE MAJEURE A party shall not be in default under this 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 cause beyond the control of the party affected, including but not limited to floods, earthquakes, acts of God, or orders of any regulatory government officer or court (excluding orders promulgated by the parties themselves), which, by exercise of due diligence and foresight, such party could not reasonably have been expected to avoid. Any party rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise due diligence to remove such inability with all reasonable dispatch. SECTION 12, WAIVED. 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 subsequent breach of the same or any other tern, covenant, or condition herein contained. SECTION 13. INDEMNIFICATION 13.1. 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, Disc Golf Course IGA - 4 - damages, liability, interest, attorney's, consultant's 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 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. 13.2. Notice. Each party shall notify the other in writing within 30 days of the receipt of any claim, demand, suit or judgment against the receiving party for which the receiving party intends to seek indemnity from the other party to this Agreement. Each party shall keep the other party informed on a current basis of its defense of any claims, demands, suits, or judgments in matters for which indemnity will or may be sought under this Agreement. 13.3. Negligence of indenzni red party. The obligations under this SECTION 13 shall not extend to the negligence of the indemnified party, its agents or employees. 13.4. Survival of termination. This SECTION 13 shall survive the termination, cancellation or revocation, whether in whole or in part, of this Agreement. SECTION 14, INSURANCE Each party to this Agreement warrants that it is self-insured or otherwise maintains adequate insurance to fully cover that party's liability regarding the Project. SECTION 15. BOOKS AND RECORDS Each party shall keep and maintain proper and complete books and records. All design and construction drawings, records, documentation and correspondence shall be the property of the Town at the completion of the Project, except copies maintained by the District for its records. SECTION 16. INSPEC'T'ION AND AUDIT OF RECORDS The appropriate designated representatives of either party may perform any inspection of the Project or reasonable audit of any books or records of the other party to confirm that the Project has been operated and maintained in accordance with this Agreement. Each party shall maintain any and all records regarding the Project for a minimum of five years after the completion of the Project and its acceptance by the Town. SECTION 17, SEVERABILITY If any provision of. the Agreement or the application thereof is held invalid, such invalidity shall have no effect on other provisions and their application which can be given effect without the invalid provision, or application, and to this extent the provisions of the Agreement are severable. SECTION 18. REMEDIES Any dispute arising under this Agreement shall be reviewed and resolved by the officially designated representative of each party, as designated in SECTION 19 below, and in the event resolution cannot be accomplished thereby, the dispute shall be submitted to the Town Manager and District General Manager for resolution. Disc Golf Course IGA - 5 SECTION 19. 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 the Town: Cynthia Nemeth-Briehn, Director Marana Parks and Recreation Department 115 5 S west Civic Center Drive Tucson, Arizona 85653 With a copy to: Marana Town Attorney 115 5 5 west Civic Center Drive Marana, Arizona 85653 To the District: Suzanne Shields, P.E., Director Pima County Regional Flood Control District 97 East Congress Street, 3 d Floor Tucson, Arizona 85701 With a copy to: Pima County Attorney 32 North Stone, Suite 2100 Tucson, Arizona 85701-1412 SECTION 20. COUNTERPARTS This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. [Remainder of page intentionally left blank. Signature page follows.] Disc Golf Course IGA - 6 - IN 1,VITNE4SS WHEREOr,, the Town has caused this Agreement to be executed by the Mayor, upon resolution of the Mayor and Council and attested to by the Town Clerk, and the District has caused this Intergovernmental Agreement to be executed by the Chair of its Board of Directors, upon resolution of the Board and attested to by the Clerk of the Board. The "District" The "Town" PIMA COUNTY REGIONAL FLOOD CONTROL TOWN OF MARANA, an Arizona municipal DISTRICT a political taxing subdivision of the corporation State of Arizona 000, By: By: Chair, Board of Directors Mayor Ed Honea Date: Date: ATTEST: ATTEST.- Julie Castan-eda, Clerk of the Board Jocm Bronsoeown Clerk Date: Date: INTERGOVERNMENTAL AGREEMENT DETERMINATION The foregoing Intergovernmental Agreement between the Pima County Regional Flood Control District and the Town of Marana has been reviewed pursuant to A.R.S. Section 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 Agreement represented by the undersigned. For the District: For the To tor jb Deputy County Attorney 0 At 71 Disc Golf Course IGA - 7 --