Loading...
HomeMy WebLinkAboutResolution 2007-099 IGA with MUSD for a cooperative maintenance agreement for a park near saguaro springs MARANA RESOLUTION NO. 2007-99 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF MARANA AND THE MARANA UNIFIED SCHOOL DISTRICT FOR THE COOPERATIVE MAINTENANCE OF THE PARK FACILITY TO BE BUILT ADJACENT TO THE PROPOSED ELEMENTARY SCHOOL LOCATED IN THE SAGUARO SPRINGS MASTER PLANNED COMMUNITY. 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. ~ 11-951, et seq.; and WHEREAS the Marana Unified School 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 of joint use community parks on properties used for school purposes and under the control of the District; and WHEREAS as a part of the Development Agreement which has been submitted and approved by the Town for the Saguaro Springs Master Planned Community, recorded at book 12278 page 3092, Pima County Recorder's Office provides that the Developer has agreed to construct public park facilities and parking and an access lane adjacent to the proposed school site; 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 Matana Unified School Disttict attached to amlincotpoHtlt:O by thi~ reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf ofthe 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. {00005 154.DOC /} CIH 6/06/07 PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 12th day of June, 2007. ~ ~ Mayor E Honea ATTEST: ~~ APPROVED AS TO FORM: ~\"'"'''''''' ~ OF~~ ~.~.,~~,\,..tt ~ ~(i~~O~PO~RA~ == coo i SEAL ~ ~ ~!3 rI'Ud~.A ~ rtlZ. '\"it ~~ ~/1"Il"\P {00005154.DOC /}MUSD IGA re Saguaro Springs Elementary Park (00005154).DOC 040608 FJC/cds 2 Intergovernnnentali\greennent Between Town of Marana and Marana Unified School District for Construction, Operation and Maintenance of Joint Use Connnnunity Parks at Saguaro Springs Elennentary School This Intergovernmental Agreement (this Agreement) is entered into by and between the Town of Marana, an Arizona municipal corporation (Town) and the Marana Unified School District, an Arizona unified school district (District) (collectively the Parties). Recitals A. The Parties may contract for services and enter into agreements with one another for joint or cooperative action pursuant to A.R.S. S 11-951, et seq. B. The District is authorized by A.R.S. S 15-342(13) to enter into intergovernmental agreements and contract with other governing bodies as provided in A.R.S. S 11- 952. C. The Town in authorized by A.R.S. S 15-364(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 A.R.S. S 15-364(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 for the construction and development of such joint use community parks in cooperation with the Town. E. The District is authorized by A.R.S. S 15-363 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 youth residing in the vicinity. F. A Development Agreement has been submitted and approved by the Town for the Saguaro Springs Master Planned Community, recorded at book 12278 page 3092, Pima County Recorder's Office. As a part of the Development Agreement the Developer has agreed to construct the public park facilities and parking and access lane adjacent to the school site. G. Following construction of the park (the Project), the District desires to permit the use of its property by the public at large in the Town to the extent practicable {OOOO4086.00c I} 2 6/7/2007 CIH given school needs and without financial impact to the taxpayers ofthe District. District desires the Project provide for both school and public park purposes. H. The Parties desire to provide an understanding for the construction, development, cooperative maintenance, operation and use of the Project. The Parties agree that the Developer shall design and construct the Project, in consultation with the Parties throughout the design and construction process. Agreement 1. 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 Project and to address legal and administrative matters between the Parties. The foregoing recitals are hereby incorporated herein as though fully set forth. 2. Project. The project to be constructed, maintained and operated pursuant to this Agreement is a Community Park adjacent to an elementary school site. The fenced portions of the school site are excluded from this Agreement. 3. Funding of Projects. The construction of the athletic fields, parking and access drives and recreational areas shall be funded by the Developer. 4. Design and Construction Responsibilities. a. Project Scope. Town and District shall mutually identify the key elements of Project and Project priorities. At a minimum, the Project shall include sports fields, ramadas, paths and other park areas as depicted in the Development Agreement. b. Design and construction. Town and District shall work with the Developer according to the existing Development Agreement in place for the area. c. District participation. Town shall provide District the opportunity to participate in and provide approval of all major items that affect the design of the Project. District shall meet with Town to coordinate recreational facility design standards of Town and District. d. Point of Contact. District and Town shall each, in writing, provide a single point of contact for these projects. e. Construction drawings and specifications. Following completion ofthe Project designs, the Developer shall provide the construction drawings and specifications to Town and District for comment and approval. Town and District shall review, comment and approve all engineering studies, technical data and specifications provided by the Developer for the design {00004086.DOC /} 3 61712007 CIH and construction of the Project under a schedule determined by Town and District to ensure timely progress on and completion of improvements. In no event, however, shall Town and District have less than ten working days to review, comment and approve unless mutually agreed by the Parties in writing. f. Town inspection and approval. Town shall inspect construction and approve the completed Project. District shall allow Town personnel and contractors access to the Project sites before, during and after construction. g. Insurance. 1. Repair and replacement. District agrees to insure or self-insure all school facilities and associated areas and to repair or replace as needed if damaged or destroyed. Town agrees to insure or self-insure the park facilities used by the Town of Marana Parks and Recreation Department and to repair or replace them if damaged or destroyed. 11. Liability insurance. District and Town shall each carry public liability insurance with aggregate limits of not less than $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 facilities. 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 Project Facilities. a. Use of Facilities. The facilities constructed pursuant to the Saguaro Springs Plan shall be used as follows: 1. The Parking lot adjacent to the school is to be used by District during school hours, summer activities and after school activities. Parking within this lot shall be available for Town at all other times. 11. The Parking and Access lane is primarily available for public use and may be used by the District as needed for after-school activities. 111. The Sports fields: District shall coordinate the programming of field usage with Town. {00004086.DOC I} 4 61712007 CIH b. Scheduling. Town shall maintain a master schedule for use of the Project facilities and execute use agreements with each user group or league for use ofthe 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. 7. Maintenance. a. District shall maintain and repair the parking lot adjacent to the school, the basketball courts and the multi-use field located on the school's parcel. District shall pay for water, power and other utilities for this portion of the facilities. b. Town shall maintain and repair all grounds and facilities outside the school parcel area including the sports fields, public restrooms and play yards. Town shall pay for water and power for this portion ofthe facilities. 8. Term and Termination of the Agreement. a. Effective date. The Agreement shall become effective 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 25 years following the date of completion of construction of the Project, unless terminated earlier according to the terms of the Agreement. The Parties may extend the term for an additional twenty-five years by giving the other Party written notice of such renewal during the last year of the initial term. c. Termination. 1. 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 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. 11. At will. Following construction of, and at least one year of operation of, the Project, the Agreement may be terminated by either Party by giving sixty days written notice. Such termination shall not relieve {OOOO4086.DOC I} 5 6/7/2007 CIR either Party from those liabilities or costs already incurred under this Agreement. 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-appropriation. It is acknowledged that all obligations of the Parties to make payments to or to incur costs for the specified project 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 Councilor District Board does not appropriate sufficient monies for the purpose of maintaining this Agreement. v. Legal authority. 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 this 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 property of the underlying property owner at termination of this Agreement. 9. 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, 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, attorneys', consultants' and accountants' 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. {00004086.DOC /} 6 61712007 CIH 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 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 this 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 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 Agreement. 10. Fiscal Agent. Town shall serve as fiscal agent for the design and construction phase of the 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: To District: To Town: District Superintendent Marana Unified School District 11279 West Grier Road Marana, AZ 85653 Director Town of Marana Parks and Recreation 13291 North Lon Adams Road Marana, AZ 85653 12. Construction of the 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. The Agreement shall not be modified, amended, altered or changed except by written agreement signed by both parties. {OOOO4086.DOC I} 7 617/2007 CIH c. Construction and Interpretation. All provisions of the Agreement shall be construed to be consistent with the intention ofthe 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 in 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 wither 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 ofthe other, including (without limitation) the other party's obligation to withhold social security and income taxes for itself or any of its employees. 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. {OOOO4086.DOC I} 8 6/7/2007 CIH 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 ofthe 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 D.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 ifit 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 "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 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. {OOOO4086.DOC I} 9 6/7/2007 CIH Town of Marana ~ By: Mayor ~ Marana Unified School District By Title {OOOO4086.00c /} , Town Attorney 10 61712007 CIH ATTORNEY CERTIFICATION The undersigned attorneys for the Town of Marana and the Marana Unified School District have determined, each as to their respective client only, that this IGA is in proper form and is within the powers and authority granted under Arizona law to the Town of Marana and the Marana Unified School District. Town of Marana Marana Unified School District Attorney for the District {00004086.DOC /} 11 61712007 CIH