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HomeMy WebLinkAboutResolution 2007-101 IGA with MUSD for the construction, operation and maintenance of the community recreation facility at 10050 n. coachline boulevardF. ANN RODRIGUEZ, RECORDER DOCKET: 13087 RECORDED BY: LLW PAGE: 342 DEPUTY RECORDER 1956 PE2 P1 NO. OF PAGES: SEQUENCE 12 20071260 : 129 SMARA 06/29/2007 TOWN OF MARANA RES 10:35 ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MAIL MARANA AZ 85653 AMOUNT PAID $ 11.50 MARANA RESOLUTION NO. 2007-101 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF MARANA AND THE MARANA UNIFIED SCHOOL DISTRICT FOR THE CONSTRUCTION, OPERATION AND MAINTENANCE OF THE COMMUNITY RECREATION FACILITY TO BE BUILT ON THE PROPERTY LOCATED AT 10050 N. COACHLINE BOULEVARD, IN CONTINENTAL RANCH,MARANA. WHEREAS the Town of Marana and the Marana Unified School District may contract for services and enter into agreements with one another for joint or cooperative action pursuant to A. R. S. § 11 -95 1, et seq.; and WHEREAS the Town of Marana is authorized by A.R.S. § 15-364(B) to expend public monies and enter into agreements with the Marana Unified School District for the construction, development, cooperative maintenance, operation and use of joint use recreational facilities on properties used for school purposes; and WHEREAS the Marana Unified School District is authorized by A.R.S. § 15-364(A) to enter into agreements with the Town of Marana providing for the construction, development, cooperative maintenance, operation and use of joint use recreational facilities on properties used for school purposes and under the control of the School District; and WHEREAS the Town of Marana and the Marana Unified School District desire to establish an understanding as related to the construction, development, cooperative maintenance, operation and use of a Community Recreational Facility to be located on property owned by the School district; and WHEREAS, the Mayor and Council of the Town of Marana feel it is in the best interests of the public to enter into this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the intergovernmental agreement between the Town of Marana and the Marana Unified School District 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 Marana. IT IS 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 intergovernmental agreement. 100005164.DOCI) CIH 610 7/0 7 PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 12th day of June, 2007. Mayor Vd HdTh ?a? ATTEST: rlyn Cj.r?onnsonn, ?Towwnn ?Cllerrkk?? APPROVED AS TO FORM: aCed'r'ic Hay, Se ior sssistant Town Attorney 11pril" 41 4 OF SO- I-z 119 WW4hl%%#% (00005164.DOC I)MUSD IGA re Coachline Community Center (00005164).DOC 040608 FJClcds 2 Intergovernmental Agreement Between Town of Marana and Marana Unified School District for Construction, Operation and Maintenance of Community Recreational Facility at 10050 N. Coachline Boulevard in Continental Ranch This Intergovernmental Agreement (the Agreement) is entered into between Town of Marana, an Arizona municipal corporation (Town) and the Marana Unified School District, an Arizona unified school district (District). Recitals A. Town and District (the Parties) may contract for services and enter into agreements with one another forjoint or cooperative action pursuant to A.R.S. § 11 -95 1, et seq. B. The District is authorized by A.R.S. § 15-342(13) to enter into intergovernmental agreements and contract with other governing bodies as provided in A.R.S. § I I - 952. C. The Town is authorized by A.R.S. § 15-364(B) to expend public monies and enter into agreements with the District for the construction, development, cooperative maintenance, operation and use ofjoint use recreational facilities on properties used for school purposes. D. The District is authorized by A.R.S. § 15-364(A) to enter into agreements with the Town providing for the construction, development, cooperative maintenance, operation and use ofjoint use recreational facilities on properties used for school purposes and under the control of the District. The District may expend public monies for the construction and development of such joint use recreational facilities in cooperation with the Town. E. The District is authorized by A.R.S. § 15-363 to contract with Town for the purpose of providing joint use recreational facilities and may organize and conduct such recreation activities which contribute to the physical, mental and moral welfare of youth residing in the vicinity. F. Town and District desire to provide an understanding for the construction, development, cooperative maintenance, operation and use of a Community Recreational Facility (the Facility). The Town shall provide funding for its design, construction, operation, and programming. G. Following construction of the Facility, the District desires to permit the use of its property by Town who shall implement programs for child care, teen after-school programs, and adult leisure classes. H. Town and District agree that Town shall design, construct and maintain the Facility. Agreement I . Purpose. The purpose of the Agreement is to set forth the responsibilities of the Parties for the design, construction, maintenance, operation and use of the Facility and to address legal and administrative matters between the Parties. The foregoing recitals are hereby incorporated as though fully set forth herein. 2. Facility. The Facility to be constructed, maintained and operated pursuant to this Agreement is a Community Recreation Building, associated parking, landscaping and trailhead amenities for the Santa Cruz Linear Boulevard all to be located at the property owned by District at 10050 N. Coachline Road in Continental Ranch. Use of the Facility shall be primarily determined by Town for child care, teen after-school programs, and adult leisure classes. 3. Funding of Projects. The final cost of the construction of the Facility shall be that necessary to complete the Facility, primary Facility costs, and any change orders or supplemental written agreements approved by Town for unanticipated work. Town shall pay any and all costs of the Facility that are approved in writing by Town and District. 4. Design and Construction Responsibilities. a. Facility Scope. Town and District shall mutually identify the key elements of Facility and Facility priorities. At a minimum, the Facility shall include a 6500.square foot community building, associated parking, landscaping, and trailhead amenities for the Santa Cruz Linear Park to the north. Costs will include architectural, engineering, construction, utility relocation and installation and equipment costs needed for the completion and start up of the Facility. b. Design and construction. Town is hereby authorized to design and construct the Facility. Design. If consultants are employed to design the Facility, 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 review all plans and specifications for construction as set forth in paragraph 4.g and to reject construction elements which will be constructed on District property on the basis of safety concerns, potential interference with District uses of the property or long-term maintenance cost considerations. {00004068.DOC /) 2 C1H 5/8/07 ii. Construction. Town shall advertise, award, execute and administer construction contracts for the Facility. Town shall have the usual rights of the owner of a public construction contract, including the authority to make changes. c. Utilities. Town shall coordinate all utility relocations within the Facility boundaries. Town shall also be responsible for procuring any new electrical service or other utilities. Town shall ensure that all utilities for the facility are metered separately from any District facilities. d. Public participation. Town shall manage all public participation processes deemed necessary by Town and District for design and construction of the Facility. 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 Facility. District shall meet with Town to coordinate recreational facility design standards of Town and District. f. Point of Contact. District and Town shall each, in writing, provide a single point of contact for these projects; these individuals will be the Director of Maintenance for the District and the Park Superintendent for Town. g. Construction drawings and specifications. Following completion of the Facility designs, Town shall provide the construction drawings and specifications to District for comment. District shall review and comment on all engineering studies, technical data and specifications provided by Town for the design and construction of the Facility 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. h. Town inspection and approval. Town shall inspect construction and approve the completed Facility. District shall allow Town personnel and contractors access to the Facility sites before, during and after construction. Continued ownership and operation. District shall not dispose of or encumber its title or other interests in the Facility as long as this agreement is in force. j. Insurance. Rqpair and rolacement. Town agrees to insure or self-insure the Facility against hazards and to repair or replace it if damaged or destroyed. {00004068.DOC /) 3 C11i 5/8/07 ii. Liability insurance. District and Town shall each carry public liability insurance with aggregate limits of not less that Five Million Dollars ($5,000,000) covering their own activities and the activities of invitees and third parties during such times as District and Town have the right to utilize the Facility. 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. 6. Use of Facility. a. The Facility shall be used asfollows: i. Community building shall be used for Town of Marana parks and recreation programming. ii. Trailhead improvements shall be established to facilitate access to the Santa Cruz Linear Park. b. Fees. Town shall, at its discretion, collect fees for programs operated within the Facility. Town shall not charge District for use of the Facility. 7. Maintenance. Town shall maintain the Facility and all structures, parking areas and grounds associated thereto. Town shall pay for water, power and other utilities associated with the Facility. 8. Term and Termination of the Agreement. a. Effective date. The Agreement shall become effective following execution and approval by the governing bodies of the Parties, and on the date it is recorded with the Pima County Recorder. b. Term. To the extent permitted by law, the Agreement shall remain in effect for twenty-five years following the date of completion of construction of the Facility, unless terminated earlier according to the terms of the Agreement. Town may extend the term for an additional twenty-five years by giving District written notice of such renewal during the last year of the initial term. c. Termination. i. For cause. 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 forty-five days to cure the default. If J00004068.DOC /) 4 C1H 5/8/07 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. ii. At will. Following construction of, and at least one year of operation of, the Facility, the Agreement may be terminated by either party by giving sixty days written notice. Such termination shall not relieve either party from those liabilities or costs already incurred under this Agreement. I ) If District terminates the Agreement under this Paragraph 8.c.ii, District shall pay Town the sum determined by multiplying the total cost of improvements paid by Town times the fraction where the number of years remaining on the initial term of the Agreement is the numerator and twenty-five (25) is the denominator, as compensation for improvements made by Town. 2) If Town terminates the Agreement under Paragraph 8.c.ii, prior to expiration of the term hereof, District shall not be required to pay Town for any improvements made hereunder. iii. Conflict of Interest. The Agreement is subject to the provisions of A.R.S. § 38-511 which provides for cancellation of contracts in circumstances involving conflicts of interest. iv. Non-4ppropriation. It is acknowledged that all obligations of the Parties 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 include herein, the Agreement may be terminated if for any reason the Town Council or District Board does not appropriate sufficient monies for the purpose of maintaining the Agreement. v. Legal authority. Neither party warrants to the other its legal authority to enter into the Agreement. If a court, at the request of a third person, should declare that either party lacks authority to enter into the 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 Lapon termination. Any termination of the Agreement shall not relieve any party from liabilities or costs already incurred under the Agreement. Any usable personal property, real (00004068.DOC 5 C1H 5/8/07 property and fixtures thereto acquired for purposes of the Agreement shall be the property of the District at termination of the Agreement. 9. Indenmification. a. Mutual Indemnity. To the fullest extent permitted by law, each party to the 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 or 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. b. Preexisting conditions. To the fullest extent permitted by law, each party to the 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 9.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 originating from property owned or controlled by the indemnifying party prior to the execution of the Agreement. C. Notice. Each party shall notify the other in writing, within thirty (30) days of the receipt of any claim, demands, suits or judgments 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 indemnifiedparty. 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 the Agreement. 10. Fiscal Agent. Town shall serve as fiscal agent for the design and construction phase of the Facility project. 11. Notification. All notices or demands upon any party to the Agreement shall be in writing, unless other forms are designated elsewhere, and shall be delivered in person or sent by mail addressed as follows: fOO004068.DOC /) 6 C1H 5/8/07 To District: District Superintendent Marana Unified School District 112 79 West Grier Road Marana, AZ 85653 12. Construction of the Agreement. To Town: Director Town of Marana Parks and Recreation 13251 North Lon Adams Road Marana, AZ 85653 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. The Agreement shall not be modified, amended, altered or changed except by written agreement signed by both parties. c. Construction and Interpretation. All provisions of the 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 the Agreement. e. Severability. In the event that any provision of the 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 or void provisions or application, and to this extent the provisions of the Agreement are severable. In the event that any provision of the Agreement is declared invalid or void, the Parties agree to meet promptly upon request of the other party in an attempt to reach and agreement on a substitute provision. 13. Legal Jurisdiction. Nothing in the Agreement shall be construed as either limiting or extending the legal jurisdiction of Town or District. 14. No Joint Venture. It is not intended by the Agreement to, and nothing contained in the Agreement shall be construed to, create any partnership, joint venture or employment relationship between the 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 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. {00004068.DOC /) 7 CHi 5/8/07 15. Worker's Compensation. An employee of either District or Town shall be deemed to be an "employee" of both public agencies while performing pursuant to the Agreement, for the purposes of A.R.S. §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. § 23-906 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 of 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. 16. No Third Party Beneficiaries. The Agreement is not intended to and shall not create any right in any person or entity as a third party beneficiary. 17. 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 the Agreement. a. Anti-discrimination. The provisions of A.R.S. § 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 the Agreement. b. Americans with Disabilities Act. The 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. 18. 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. 19. Force Majeure. A party shall not be in default under the Agreement if it does not fulfill any of its obligations under the Agreement because it is prevented or delayed in doing so by some reason of uncontrollable forces. The term 4Q uncontrollable forces" shall mean, for the purpose of the Agreement, 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, 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 (00004068.DOC /) 8 CM 5/8/07 government officer 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. 20. Remedies. Either party may pursue any remedies provided by law for the breach of the 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 the Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement. Town of Marana By: fW Mayor Eb Honea ATTEST: Town Clerk To FoRm: Hay, SekiorAs,st. Town Attorney (00004068. DOC /) 9 CUi 5/8/07 ,me Cfo INTERGOVERNMENTAL AGREEMENT DETERMINATION The foregoing Intergoverm-nental Agreement between the Town of Marana and the Marana Unified School District has been reviewed pursuant to A.R. S. § 11 -952 by the undersigned, each of whom has determined that it is in proper form and is within the powers and authority granted under the laws of the State of Arizona to the party represented by him/her. Town of Marana ja" C e d rnii cc HH y Tot I Senior Asst. To mey {00004068.DOC /) 10 Marana Unified School Attorney for the District C1H 5/8/07