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HomeMy WebLinkAbout2013 04.15 City Council Work Session Agenda ii.Cff _am • ' z city of Apache Junction Home of the Superstition Mountains 4lvIzo$F APACHE JUNCTION CITY COUNCIL WORK SESSION CITY COUNCIL CHAMBERS 300 EAST SUPERSTITION BOULEVARD �• APACHE JUNCTION,ARIZONA 85219 Monday, April 15, 2013 700PM AGENDA 1. CALL TO ORDER. 2 ROLL CALL. 3. PRESENTATION AND DISCUSSION ON PROPOSED RESOLUTION NO 13-14, AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND THE APACHE JUNCTION FIRE DISTRICT FOR JOINT PUBLIC SERVICES, MATERIALS, AND EQUIPMENT Staff will discuss the proposed intergovernmental agreement with the Apache Junction Fire District which include joint coordination on items such as communications,training and safety equipment 4. PRESENTATION AND DISCUSSION OF RESOLUTION NO. 13-10, RECOMMENDING THE CITY'S FISCAL YEAR 2013 LOCAL TRANSPORTATION ASSISTANCE FUND II ALLOCATION BE DIRECTED TO THE APACHE JUNCTION ACTIVE ADULT CENTER AND AUTHORIZING THE MAYOR TO SIGN A PASS THROUGH AGREEMENT. Pursuant to the court order filed in Paisley v Darwin,Valley Metro Regional Public Transportation Authority receives monthly distributions of lottery revenues for public transportation purposes in Mancopa County Funding will be distributed directly to eligible jurisdictions within the county To receive the funds allocated to Mancopa County communities,jurisdictions must apply annually In FY 2013,Apache Junction will receive$865 00 An application was submitted March 18,2013 to the Valley Metro Regional Public Transportation Authority PRESENTATION AND DISCUSSION ON PROJECT PW 2012-06, OLD WEST HIGHWAY SIDEWALK IMPROVEMENTS. Presentation and discussion by staff on the bid opened on Wednesday, March 20,2013 for the Old West Highway Sidewalk Improvements This project includes curb and gutter, sidewalk installation,drainage and other street related improvements The bids ranged from$105,000 00 to$135,362 00 6. PRESENTATION AND DISCUSSION ON PROJECT PW 2010-22B, NORTH APACHE TRAIL IMPROVEMENTS PHASE 2. Presentation and discussion by staff on the bid opened on Wednesday, March 13,2013 for the North Apache Trail Improvements Phase 2. This project includes vertical curb, sidewalk,ADA accessible ramps,concrete headwalls,drainage grading, streetlights, signing and striping, landscaping and other related improvements The bids ranged from$585,162 15 to$787,062 00 7 PRESENTATION AND DISCUSSION ON PROPOSED RESOLUTION NO. 13-01, DECLARING THAT PORTIONS OF PUBLIC ROADWAY EASEMENTS LOCATED ON MOCKINGBIRD STREET, GREASEWOOD STREET AND SIESTA STREET FROM MAIN DRIVE TO SAGUARO DRIVE, MAIN DRIVE FROM SIESTA STREET TO MOCKINGBIRD STREET, AND SAGUARO DRIVE FROM SIESTA STREET TO ROUNDUP STREET AS DESCRIBED IN EXTINGUISHMENT CASE 13-01 ARE NO LONGER NECESSARY FOR PUBLIC USE. Staff respectfully requests city council's consideration on the extinguishments of public roadway easements located on Mockingbird Street, Greasewood Street and Siesta Street from Main Drive to Saguaro Drive,Main Drive from Siesta Street to Mockingbird Street, and Saguaro Drive from Siesta Street to Roundup Street Staff has reviewed the submittal and has no technical objections since the use of the federal patent easements are not feasible or needed The property owner, Stage Coach Trail LLC,desires the use of the 33 feet for site improvements 8. DISCUSSION ON PROPOSED RESOLUTIONS NOS. 13-04, 13-05, 13-06, 13-07 AND 13-08,GRANT APPLICATIONS FOR THE GILA RIVER INDIAN COMMUNITY STATE SHARED REVENUE PROGRAM FOR FISCAL YEAR 2013-2014. rr Voter approved Propostion 202 provided ,rizona tribes to set aside a percentage of gami, venue for grant distribution to local governments The law also provides for local nonprofit groups to submit applications if they are sponsored by an appropriate municipality Four local nonprofits have submitted a request,staff also submitted a request. 9 PRESENTATION AND DISCUSSION ON PROPOSED RESOLUTION NO. 13-11,AUTHORIZING THE CITY OF APACHE JUNCTION TO ENTER INTO AN AGREEMENT WITH THE ARIZONA EARLY CHILDHOOD DEVELOPMENT AND HEALTH BOARD AND THE PINAL REGIONAL PARTNERSHIP COUNCIL FOR FISCAL YEARS 2013-2016 The Apache Junction Public Library was offered grant funds to continue the early childhood development program called the Fun Van through the Arizona Early Childhood Development and Health Board(also known as First Things First) and in collaboration with the Pinal Regional Partnership Council This grant will allow the city to expend up to$330,000 per year, renewed annually for a potential total of three years for personnel,vehicle costs,equipment, phones, Internet,books, laptops,incentives,training,program supplies,office supplies and materials, advertising and marketing activities 10. PRESENTATION AND DISCUSSION ON 247 E JUNCTION STREET DEMOLITION AGREEMENT. The property at 247 E Junction Street is in the Crossroads Redevelopment Area This property was previously occupied as a single fa residence Since approximately 2006,the property has been vacant and the general condition of the structure has deteriorated and becorlie in disrepair The foreclosed property has recently been assigned to a receiver The city and owner have determined it is in the best interest of both parties to demolish and remove the single family residence structure 11 ADJOURNMENT. Copies of this agenda and additional information regarding any of the items listed above may be obtained from the City Clerk's office 300 East Superstition Boulevard,Apache Junction,AZ Monday through Thursdays, 7 OOa—6 OOp,excluding holidays If any person with a disability needs any type of accommodation,please notify the Human Resources Office,at (480)474-2617 or(480)983-0095(TDD)at least 72 hours prior to the scheduled time EACH o City of Apache Junction z Home of the Superstition Mountains Print TO: City Manager's Office FROM: Bryant Powell, Assistant City Manager DATE: April 15, 2013 agenda Type : Work Session Agenda Council Priority Focus Area. TITLE OF AGENDA ITEM: PRESENTATION AND DISCUSSION ON PROPOSED RESOLUTION NO 13-14, AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND THE APACHE JUNCTION FIRE DISTRICT FOR JOINT PUBLIC SERVICES, MATERIALS, AND EQUIPMENT. ACTION REQUESTED: DISCUSSION / BACKGROUND INFORMATION: Staff will discuss the proposed intergovernmental agreement with the Apache Junction Fire District which include joint coordination on items such as communications, training and safety equipment FISCAL IMPACT- OPTIONS/ALTERNATIVES: RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution No 13-14 D TOPAZ Fire District D Draft IGA p RESOLUTION NO 13-14 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, AUTHORIZING THE CITY OF APACHE JUNCTION TO ENTER INTO AN AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT WITH APACHE JUNCTION FIRE DISTICT FOR JOINT PUBLIC SERVICES, MATERIALS, AND EQUIPMENT WHEREAS, on March 3, 1999, the City of Apache Junction (the "City") and the Apache Junction Fire District (the "District") , also collectively (the "Parties") , entered into an Intergovernmental Agreement ("IGA") for the use of City-provided fueling facilities, waiver of development and building permit fees, and fire safety services; and WHEREAS, on June 2, 2002, City and District entered into an IGA providing for the use of communications equipment by City, and WHEREAS, on January 4, 2005, City and District entered into an IGA providing for additional joint services, including but not limited to safety training, building code enforcement, and communication and safety equipment; and WHEREAS, on January 1, 2006, City and District entered into an IGA providing for 800 MHz Radio Equipment and the sharing of GIS data; and WHEREAS, the Parties are interested in adding additional joint services and combining all prior amendments and versions n into one IGA; and WHEREAS, the mutual cooperation on governmental services, materials and equipment would result in public savings and organizational efficiencies, and WHEREAS, pursuant to A.R. S . § 11-952 (A) , public entities, including the City and the District, may enter into intergovernmental agreements with each other to facilitate and share joint or cooperative activities, and WHEREAS, the Parties have the desire and the ability to assist each other and have crafted a written agreement in the form of an IGA which formalizes the arrangement for all RESOLUTION NO. 13-14 PAGE 1 OF 2 Iik currently anticipated joint public services, materials and equipment NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION ARIZONA, AS FOLLOWS : 1) The Mayor and City Council approve the attached IGA between Ask, City and District for joint public services, materials, and equipment, the form of which is set forth in Attachment A; and the Mayor is hereby authorized to sign the agreement on behalf of the City. 2) Staff shall record such document in the Pinal County Recorder' s Office within sixty (60) days after full execution by all Parties . PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS DAY OF , 2013. SIGNED AND ATTESTED TO THIS DAY OF , 2013 . JOHN S INSALACO Mayor ATTEST. Amok KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM. RICHARD J. STERN City Attorney RESOLUTION NO 13-14 PAGE 2 OF 2 Ink LAW OFPICES GOMEZ & PETITTI A PROFESSIONAL CORPORATION Z6Z5 EAST GAM ELBACK ROAD DAVID F GOMEZ SVITE 86O TELEPHONE(S021 967-86436 MICHAEL J PETITTI,JF pgp ENIX, ARIZOP'IA 85OI6-4270 FACSIMILE owe) 956-8864 March 12,2013 .�. Dale Shaw,Executive Director John Kross TOPAZ TOPAZ Board Chair P O.Box 968 P.O.Box 968 Mesa,Arizona 85211-968 Mesa,Arizona 85211-968 Alex Deshuk Gary Bradbury TOPAZ Board Vice-Chair TOPAZ Board Member P.O.Box 968 P.O Box 968 Mesa, Arizona 85211-968 Mesa,Arizona 85211-968 Ron Knight Paul Bourgeois TOPAZ Board Member TOPAZ Board Member P.O. Box 968 P.O. Box 968 Mesa,Arizona 85211-968 Mesa,Arizona 85211-968 Wes Kemp TOPAZ Board Member P.O. Box 968 Mesa, Arizona 85211-968 Re• Emergency Radio Communication System Dear Executive Director and Board Members- This firm represents The United Mesa Firefighters Association, IAFF Local 2260 (representing Mesa, Gilbert and Apache Junction Firefighters), The United Mancopa Firefighters Association, IAFF Local 3878 (representing Scottsdale, Queen Creek and Rio Verde Firefighters) and The United Phoenix Firefighters, IAFF Local 493 (representing Tempe and Chandler Firefighters). Our clients have asked us to write you to express their disappointment and concern with TOPAZ's decisions regarding its emergency radio communication system. Our clients are extremely concerned about TOPAZ's refusal to work with Regional Wireless Cooperative (RWC) to implement a Valley-wide emergency radio system TOPAZ's refusal to work collaboratively with RWC puts firefighters and AM\ daft. LAW OFFICES GOMEZ & PETU.-r1 A PROFCSSIONAL CORPORATION March 12, 2013 Page 2 citizens at great risk of personal harm, as well as poses a substantial risk to taxpayer's property. Public safety officials and employees learned some hard, but extremely valuable, lessons from the tragedy that occurred on September 11, 2001. As the authors of the Department of Homeland Security's 9-11 Commission Report wrote: The inability to communicate was a critical element at the World Trade Center, Pentagon, and Somerset County, Pennsylvania crash sites where multiple agencies in multiple jurisdictions responded. The occurrence of this problem at three very different sites is strong evidence that compatible and adequate communications among public safety organizations at the local, state and federal levels remains an important problem. TOPAZ, however, has decided to ignore this critical lesson Instead, its decisions have exacerbated the problem of intercommunity emergency communications by continuing with a technology that adversely impacts municipalities and fire districts when they must work together and necessarily places personnel, citizens and property at significant risk. Both RWC and TOPAZ use digital radio communications in non-hazardous situations. However, in hazardous situations, RWC uses VHF (analog) radios but TOPAZ still uses digital radios. TOPAZ's decision to use digital radios in hazard zones puts firefighters in a dangerous situation on a daily basis. These different emergency communication systems cause confusion and danger for first responders working on our communities' borders. First, TOPAZ's refusal to bring the Valley's emergency radio communications systems together creates numerous critical problems for first responders. For example, different systems impede communications between firefighters in TOPAZ's system and its automatic aid partners who they respond to and communicate with daily in hazardous situations The different systems cause significant confusion and unnecessary complications for crews responding to and working in the most hazardous situations. Firefighters must switch radios in hazardous situations, often on the fly and under stressful and dangerous conditions. Firefighters are also forced to use a radio they are not z.A.w orrices GOMEZ & PETITTI A PROFESSIONAL CORPORATION March 12, 2013 Page 3 familiar with and, as discussed below, that has been conclusively found to be inefficient in a hazard zone. Next, TOPAZ's decision to use digital radios in hazardous firefighting situations is inefficient and contrary to accepted safety practices. The Federal Emergency Management Agency (FEMA)found that the use of digital radios in hazardous situations when firefighters are wearing breathing apparatus (which is routine) causes higher word error rates, i.e., difficulties in hearing and communicating with other public safety individuals. Voice Radio Communications Guide for the Fire Service, US Fire Administration (FEMA, October 2008). Indeed, fire departments around the country have reported difficulties with digital radios in hazardous situations. Their negative experiences have been confirmed by studies performed by the National Institutes of Standards and Testing (NIST), the International Association of Fire Chiefs (IAFC) and portable radio manufacturers. Id Based on these practical experiences and studies, the International Association of Firefighters (IAFF) also recommends that digital portable radios not be used in hazard zones, especially when the firefighter is using a breathing apparatus. Id. Despite the overwhelming evidence of the risks to firefighters and others, TOPAZ continues to use this dangerous communication system in hazardous situations. Unfortunately, TOPAZ's actions are not unusual. TOPAZ has a history of making technology design decisions without doing field assessments on the equipment or seeking input from those using the equipment in emergency situations. For the foregoing reasons, our clients ask that you immediately take all necessary action to remedy the problems with TOPAZ's emergency radio communication system discussed in this letter This also serves to put TOPAZ on notice that its emergency radio system significantly compromises the safety of our clients' members and citizens, as well as posing a risk to property. Our clients will take all legal and equitable actions to hold TOPAZ accountable should any of their members suffer injury or death as a result of TOPAZ's unacceptable emergency radio system decisions. Please contact me if you have any questions Ve ly yours 'chael J.Petiti, Jr. MJP:cas LAW OFFICES GO [EZ & PETITTI A PROFESSIONAL CORPORATION March 12,2013 Page 4 cc: Bryan Jeffries Aren Hansen Don Jongewaard Pete Gorraiz City of Mesa Mayor Scott Smith City of Mesa Manager Christopher Brady Town of Gilbert Mayor John Lewis Gilbert Town Manager Patrick Banger Apache Junction Fire Chief Paul Bourgeois Apache Junction Fire District,Fire Board Chairman Todd House Queen Creek Town Manager John Kross Rio Verde Fire Distnct Chief Gary Bradbury Rio Verde Fire District, Fire Board Chairperson Burdena Pasenelli DRAFT 4-3-1 3 When recorded return to: KEY Richard Joel Stern, Esq. Red: City Attorney Changes Apache Junction City Attorney Blue: District/Staff Changes 300 East Superstition Blvd. Apache Junction, AZ 85119 INTERGOVERNMENTAL AGREEEMENT BETWEEN CITY OF APACHE JUNCTION AND APACHE JUNCTION FIRE DISTRICT FOR JOINT PUBLIC SERVICES, MATERIALS, AND EQUIPMENT THIS AGREEMENT is made and entered into this day of 2013, by and between THE CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation (hereinafter referred to as "City") and APACHE JUNCTION FIRE DISTRICT, a special taxing district (hereinafter referred to as "District"), both collectively being referred to herein as the "Parties", or individually as a "Party" T-N RECITALSA On March 3, 1999, City and District entered into an Intergovernmental Agreement "IGA."j for the use of city-provided fueling facilities, waiver of development and building permit fees, and fire safety services. [. . June 2, 2002, City and District entered into an another IGA providing for the use of communications equipment by City_ C On January 4, 2005, City and District entered into anther-IGA providing for additional joint services, including but not limited to safety training, building code enforcement, and communication and safety equipment D On January 1, 2006, City and District entered into an amended IGA providing for 800 MHz Radio Equipment and the sharing of GIS data_ E The Parties are interested in adding additional joint public services and combining all prior amendments and versions into one IGA r.The mutual cooperation on governmental services, materials and equipment would result in public savings and governmental efficiencies. G.The Parties have the desire and the ability to assist each other and are each authorized to enter this agreement pursuant to A R S § 11-951 et seq. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: 1. PURPOSE The purpose of this Agreement is set forth the services, materials and equipment used between City-a��d--District the Parties for the benefit of the Apache Junction Community. 2. CITY AND DISTRICT SERVICES A. TRAINING ASSISTANCE i. District's Obligations: a. At the request of City, participate with City in developing /conducting public information and safety education programs including, but not limited to• First Aid Training, Cardio Pulmonary Resuscitation ("CPR") Training, Cardio Cerebral Resuscitation ("CCR") Training, Fire Drill Training, and Fire & Life Safety Inspections of City Facilities at the sole cost of District. rH City's Obligations a Coordinate with District and make all arrangements for first aid, CPR/CCR and fire drill training to include time, location and attendees. b. City will pay for or reimburse District the cost of training materials for first-aid, CPR/CCR, fire drill training and fire/safety inspections. Page 2 2-2 B. FUELING FACILITIES i. District's Obligations. a. Furnish City with names of District personnel, District vehicle license plate numbers and District vehicle descriptions that will be authorized by District to access City's refueling facilities located at City Department of Public Works facilities, 575 East Baseline Road, Apache Junction, Arizona, or at any other location City moves its refueling facilities to any time during the term of this agreement. b. Pay City the bid (or adjusted) price for fuel based upon the quantity used. c. Pay City a prorated amount based on use share of the cost of pump maintenance and any gasoline clean up. d. Pay City the cost of any damages to the fueling facility, intentionally or negligently caused by District its officers, employees or agents e. Provide padlock for the double-hasp locking device to secure fuel pump area allowing for 24 hour access f. District is not obligated to obtain any specified amount of fuel from City, and may, at its sole discretion, obtain fuel from other sources at any time. [NOTE Donna: I recommend deletion of this subsection as it is not an obligation.][NOTE: Joel—you are correct, it is not an obligation. Because it is not an obligation, makes no difference if it is in or out. DMA] p ii. City's Obligations: a. Furnish District with authorization and access information, in format chosen by City, for use by District personnel at the automated fueling island. b. Provide District with a monthly statement showing a cost breakdown by vehicle of the quantity of fuel disbursed. c. Under normal, non-emergency conditions, and at its sole discretion, temporarily limit or discontinue access to the fueling facilities for purposes of facility repairs and maintenance. Pe322 d Under emergency conditions due to local, state, national or international crisis involving a fuel shortage, restrict fuel distribution for all non-emission dependent District vehicles C. BUILDING/FIRE CODE ENFORCEMENT i. District Obligations: a. Enforce the current edition and subsequent updates of the legally adopted fire code and appendices thereto as adopted and amended by City. b. Provide technical support for the prosecution against violators of the legally adopted fire code regulations through City-s Attorney's Office-for complaints filed in the Apache Junction Municipal Court c. Perform necessary plan reviews within one (1) week following receipt of same to ensure compliance with the legally adopted fire codes and appendices, as noted above. d. Perform inspections at the request of City within forty-eight hours for standard inspections and one (1) hour for emergency inspections. e Assist and cooperate with City in the its abatement of dangerous building efforts lo-Ga within City's jurisdiction. f. Agree that any decision made by District which are upon District's interpretation of the legally adopted fire codes and which are subsequently challenged by any permittee, \,-.44; may be appealed to City's Construction Board of Appeals. Such decision shall be binding on District's Fire Chief and City Building Official as per City policies and procedures. g. Waive fees for City that would normally be charged for permits, inspections, orders, installations, investigations and notifications. h. Notify City of requests for fire permits and refrain from issuing such fire permits which are required pursuant to the legally adopted fire codes until written approval is received from City's Building Division. ii. City's Obligations: # 4 2 a. Enforce the current edition and subsequent updates of Building and Fire Codes and appendices as adopted and amended by City b. Refrain from issuing building permits and/or certificates of occupancy, other than for a single family dwelling, until written approval or sign-off is received from District. c. Perform inspections at the request of District within forty-eight (48) hours for standard inspections and within one (1) hour for emergency inspections. d. Waive fees for District that would normally be charged for permits, inspections, orders, installations, investigations and notifications e. Serve as an agent to collect plan review fees established by District 'i;plan review fees being reimbursed to District f. Assist and cooperate with District in the abatement of dangerous buildings _'_f } .s located within City's jurisdiction. D. COMMUNICATION EQUIPMENT-800 MHz P25 RADIO SYSTEM i. District's Obligations: a. Coordinate with City to enable City's use of the 800 MHz P25 Radio System. [DONNA: How will the current issue set forth in the attached letter from Gomez & Pettiti affect this term?] [NOTE Joel, the issue is between the Union and Topaz as to the appropriateness of the system. That issue is separate from our clients' coordination of the use of the system. If the Topaz system is changed, we will revisit. DMA] b. Promptly review City's list of proposed communication equipment provided for as set forth below. Approval shall be within the discretion of District; however, such approval shall not be unreasonably withheld. c. Provide City with access to on-site Fire Station Communication Facilities and structures located at Fire Stations equipped with such. d. Allow City to install communication antennas onto District owned communication towers to the extent space is available. foe, 5 z2 e Provide City with twenty-four (24) hour access to District communication facilities and towers for installation and maintenance of City communication equipment. f. Provide City with ninety (90) calendar days' notice of projected changes to District communication system, allowing City to review and provide comments to encourage compatibility between District and City communication systems. [DONNA: Same question as above.] [Ditto.] ii. City's Obligations: [DONNA: Same question as above.) a Coordinate with District to enable City's use of the 800 MHz P25 Radio System b. At its sole expense, be responsible for the programming, upgrades, acquisition, installation and encryption of all City radio equipment including but not limited to fixed, portable and mobile equipment such as hand-held, dash mounted and motorcycle radios compatible with the Communication System c. Provide District with a list of City communication equipment proposed for installation at each Fire Station facility and on each communication tower which shall not interfere with the use and operation of District's fire station communication facilities. d Provide District with a list of authorized communication equipment installation and maintenance personnel. e. Perform all necessary installation and maintenance of City equipment at City's sole cost and expense f. Provide District with ninety (90) calendar day's notice of projected changes to City communication equipment, allowing District to review and provide comments to encourage compatibility between District and City communication systems. g. Comply with District policies and procedures regarding access and operation of District facilities h. + Incur all costs associated with adding or removing equipment to any tower owned or leased by Districtfincluding all preliminary structural assessments, maintenance, and associated fees Pap:e6 2 /^. E. FITNESS FACILITIES [DONNA: This section needs to be reworked for consistency sake, still a bit fuzzy. i. District's Fitness Facility. a. District's Obligations* (i) Make available its Fitness Facility to authorized personnel of City during hours to be determined by District from time to time which do not conflict with District's operations and the use of the Fitness Facility by District employees. b. City's Obligations: (i) City's employees shall be subject to the rules and regulations put in place from time to time governing the use of the Fitness Facility, including District's right to refuse access to any individual or individuals as District may determine in its sole discretion, which shall not be unreasonably exercised. [NOTE. This does not make sense if this ¶ is referring to the multi-gen ][NOTE: Changed around/reorganized provisions.) (ii) Be responsible for damage to District's property arising from the use or misuse of District's property by City employees of District's Fitness Facility. (iii) cknowledges the use will be unsupervised, each employee using the equipment is responsible for knowing the proper use of the equipment, and each employee shall use .. the equipment at his or her own risk (iv) Holds District harmless for any injury occurring while at District fitness facility ii City's MultiGen Facility a. City's Obligation: (i) Make available its Multi- Generational Facility for the purpose of physical fitness for authorized personnel during regular business hours free of charge. Use will be limited to four district employees on any given day, with the occasional addition of a paramedic ride- Page 7 22 oft along student Use will be limited to on-duty hours only. No off-duty use will be allowed City,at its sole discretion, has the right to refuse access to any individual or individuals, which shall not be unreasonably exercised b. District's Obligation: (i) District's employees shall be subject to the rules and regulations put in place from time to time governing the use of City's Multi-Gen Fitness Facility, including City's right to refuse access to any individual or individuals as City may determine in its sole discretion, which shall not be unreasonably exercised. (ii) Be responsible for damage to City's property arising from the use or misuse of City's property by District employees of City's Multi-Gen Fitness Facility. [NOTE: Donna this section is out of place as subsection A deals with the District's fitness facility, not the City's multi-gen facility.][NOTE: Reorangized provisions.] (iii) Acknowledges the use will be unsupervised, each employee using the equipment is responsible for knowing the proper use of the equipment, and each employee shall use the equipment at his or her own risk (iv) Holds City harmless for any injury occurring while at the Multi-Gen fitness facility. [NOTE: Same issue as above Is the intent to allow fire employees use of City's multi-gen facility? If so, this needs to be reworded.][Ditto] a. . F. GEOGRAPHIC INFORMATION SYSTEM DATA i. District's Obligations• a. Oisfr-iet-sha Provide access to City any and all of its Geographic Information System ("GIS") data, and shall regularly exchange GIS data with City P-agte822 b. Bill City for City's portion of GIS mapping services, which shall consist of 50% of update fees for all updates done within Apache Junction's -incorporated City limits when such charges are incurred by District from outside vendors for the purpose of upgrading any GIS data requested by City. ii. City's Obligations: a. Reimburse District for City's portion of the charges and updates completed within Apache Junction's incorporated City limits. City will not pay for any updates to areas outside of the incorporated City limits. b Pay for 50% of the cost of State Land base maps for lands within the incorporated City limits G AED UNITS i. District's Obligations: a. Resupply City Automatic External Defibrillators ("AEDs") to locations City identifies, in addition to those already set forth in Exhibit A, at City's expense. b. Provide training for City's designated employees twice a year or as requested by City, at the sole cost of District. c. Maintain records of all AEDs placed in City facilities, and provide regular inspection, maintenance, and medical supplies pursuant to the same standards District uses for its AEDs, at the sole cost of District. ii City's Obligations a. Locate the AEDs in accordance to City's needs, and notify District of all AED locations. b Notify District and take out of service any AED unit immediately following its use or upon any suspected irregularity, defect, malfunction or other indication of potential safety risks c Be responsible for any damage to the AEDs while in the possession of City and be responsible for the safe keeping, storage and limiting access to the AEDs only to trained City employees. Page 9 22 H. SWAT MEDICS i. District's Obligations: a Designate, from time to time, certain employees with current paramedic certification to serve as SWAT Medics, who shall: (1) be available, upon reasonable notice, and per their availability to train with City's Police Department SWAT Team; (2) remain employees of District, and (3) be available for duty only within fire district boundaries ii. City's Obligations- a. Provide SWAT Medics with all reasonable and necessary training, at City's sole expense, with yearly training hours not exceeding 74 hours per person unless authorized by District, Off-duty SWAT call out hours will not exceed 50 hours per year unless authorized by District b. Provide all reasonable and necessary supervision of SWAT Medics during all training and deployment at City's sole expense. c. Provide SWAT Medics with any and all SWAT gear and equipment at no cost to District, inclusive of SWAT medical supplies d Ensure that SWAT Medics employed by District will not be required nor will have the option of being armed during SWAT training or real event call-outs. I. PAVING: i. District's Obligations: a. Pay City, at an amount equal to City's cost, for any paving work including labor and materials, G-E . ii. City's Obligations: a. Provide paving work, labor and materials, through its Public Works Department to District, upon reasonable notice, and per City schedule availability, and at a cost reasonably estimated by City in advance. Rage 102 J. TRAFFIC SIGNAL PREEMPTION SYSTEM: i. District's Obligations: a. Pay City at an amount equal to City's cost for the maintenance of traffic signal preemption devices and equipment located outside of City limits as listed in Exhibit B. b. Provide reasonable notice to City for all requests for service or maintenance of any preemption devices. ii City's Obligations- a Provide and install preemption devices in all new traffic signals- b Provide maintenance personnel on request by the Arizona Department of Transportation ("ADOT'll or District for the maintenance of the preemption devisees on the traffic signals listed in Exhibit B. c Maintain a reasonable inventory of replacement preemption parts necessary for repair of all preemption equipment for the traffic signals listed in Exhibit B. K. FACILITIES & PROPERTIES i. District's Obligations a. Request. in its sole discretion, the use of certain City owned/operated facilities for various purposes, including but not limited to, training, educational classes, promotional testing, and special meetings,—for which the sites may include Multi-Gen Building/Rooms, Superstition Shadows Aquatic Center [NOTE. Donna' This might be a problem, as it is owned by the school district and our IGA with the school district has expired.], City Meeting/Conference Facilities;to the extent the City has authority to operate the facilities. etc. b. Grant use of its various facilities at the request of City for various purposes, including but not limited to; training, educational classes, promotional testing, and special meetings, for which the sites may include Training Tower, Fire Station Bays, Meeting and Conference Rooms, etc. Use may be granted during hours to be determined by District from time to time which do not conflict with District's P-age 11 22 operations and the use of the various facilities by District employees. c. Transport all -District foliage trimmings to a single fire station (FS 263) for staging until City can schedule said removal or, with prior approval from City, deliver such trimmings directly to City yard located at 575 E Baseline Avenue for disposal d. Make requests for the use of City owned/operated facilities with a 30 calendar day notice whenever possible for planning and authorization. e. Hold City harmless for any injury occurring while utilizing any City owned or operated facilities i� City's Obligations: a. Request District to move Training Tower currently located at 575 E Baseline Avenue at the sole expense of District with ninety (90) calendar days' notice. b. Provide access to the Public Works yard during regular business hours Monday through Thursday, or through other pre-scheduled arrangements City may temporarily limit or restrict access to Training Tower for the purpose of site improvements, maintenance or special City operations c. Request the use of certain District facilities for various purposes, including but not limited to; training, educational classes, promotional testing, and special meetings, with such sites to include: Training Tower, Fire Station Bays, Meeting and Conference Rooms,- d. Grant use of its various facilities at the request of District for various purposes, including but not limited to; training, educational classes, promotional testing, and special meetings, with such sites to include. Multi-Gen Building/Rooms, Superstition Shadows Aquatic Center (main pool) [NOTE. Donna: This might be a problem, as it is owned by the school district and our IGA with the school district has expired.] [Ditto], City Meeting/Conference Facilities, etc. Use may be granted during hours to be determined by City from time to time which do not conflict with City's operations and the use of the various facilities by City employees P-age 12 22 sr e. Allow District to deliver landscaping trimmings and cuttings directly to City's Public Works facility site for disposal and will schedule manpower and equipment to transport stock-piled tree and bush trimmings from a District facility (FS 263) to City's site for disposal. f. Make requests for the use of District facilities with a 30 calendar day notice whenever possible for planning and authorization g. Hold District harmless for any injury occurring while utilizing any District facility L PUBLIC SERVICE ANNOUNCEMENTS / MARKETING i. District's Obligations: a. Assist City in efforts to market Public Service Announcements ("PSA") or Emergency Announcements that are mutually beneficial to the public safety and well being of the community. b. Make available its facilities and social media sites, including District web site, Face Book Page, Twitter Account, Flicker Page, You Tube Site, for the purpose of marketing any mutually beneficial PSA, Emergency Announcement, or Press Release. c Provide to City quality video-media, photo-media, audio-media as per the technical specifications required by City, with a reservation of right to refuse any media presented. d. Assist with City's Media Producer in joint ventures as requested by City. ii. City's Obligations: a. Assist District in efforts to market Public Service Announcements ("PSA") or Emergency Announcements that are mutually beneficial to the public safety and well being of the community. b. Make available its advertising resources including but not limited to- Lighted Marquee Sign at Phelps & Apache Trail (across Focal Points, Banner posts located at City entrances on Apache Trail & Old West Highway, City's Channel 11 Public Access Channel and social media sites, including City web site, Face Book Page, Twitter Account, Flicker Page, You Tube Site, for the purpose of marketing P- ge1322 any mutually beneficial PSA, Emergency Announcement, or Press Release- c. Provide District with some allowance and use of peak demand times for PSAs and Emergency Announcements on Channel 11 and the City's lighted marquee sign. A^ d. Provide to District quality video-media, photo-media, audio-media as per the technical specifications required by District-with a reservation of right to refuse any media presented. e. Assist with District's Multi-Media Specialist in joint ventures as requested by District. M. JOINT SPECIAL EVENT PARTICIPATION i District's Obligations: a. Assist City during special Community Events sponsored, or co- sponsored by City, including but not limited to Lost Dutchman Days, Special Rodeo Events, Community Parades, by providing temporary medical coverage and other District resources when requested by City, and as District resources allow.,all assistance provided beinn at the sole cost of District. n City's Obligations: a. Allow a minimum notice of 30 calendar days for such events for District planning purposes. 3. NDEMNIFICATION AND INSURANCE To the extent permitted by law, the r arties covenant and agree to fully indemnify, hold harmless and defend each other and their directors, council members, board members, officers, agents, servants and employees from and against any and all claims or actions of whatsoever kind of character, whether real or asserted, arising out of or in connection with this Agreement, except to the extent such claims or suits arise out of or are based upon acts or omissions by each Party or their directors, council members, board members, officers, servants, employees or agents. If any action or claim shall be brought or asserted against either 1'arty their directors, council members, officers, agents, servants or employees for which indemnity may be sought from either Party, then the parties shall promptly notify each other in writing. The Parties agree to within ten (10) working days of receiving such notice, assume the defense of Page 14 2 each other, and the payment of all expenses, including any attorney fees and all court costs which shall be paid as incurred. This indemnification provision shall apply to any and all acts or omissions, willful misconduct or negligent conduct, whether passive or active, on the part of the Parties, their directors, council members, board members, employees and agents. It is understood and agreed that either Party may elect to self-insure or obtain insurance through their pooling agreement with other governmental entities against any or all of the risks related to this Agreement. The f=_arties shall provide each other with a current insurance certificate or other evidence of coverage as appropriate. This section shall survive the expiration or early termination of this Agreement 4. DURATION OF AGREEMENT/TERMINATION This Agreement shall be valid for a term of twenty (20) years with joint City and District reviews to be held every three (3) years, based on the effective execution date of this IGA, and shall automatically be renewed every year thereafter. However, either f_arty may terminate this Agreement for any reason upon sixty (60) calendar days: written notice to the other Party by first class certified mail, postage prepaid, or by overnight delivery addressed to the other ["_arty as set forth in Section 9 of this Agreement 5 BINDING EFFECT/ASSIGNMENT The obligations and rights created in this Agreement are binding upon and shall inure to the benefit of the Parties and their successors, assigns and legal representatives. Neither Party may assign its rights under this Agreement without the prior written approval of the other Party. Such successor or assignee shall assume, in writing, all duties and obligations hereunder of the prior I-arty and shall further agree to be bound by and to fully perform the terms of this Agreement. 6. ENTIRE AGREEMENT This instrument contains the entire agreement between the Parties hereto with respect to the subject matter contained in it and supersedes all prior and contemporaneous agreements, discussions and representations related thereto. No supplement, modification or amendment hereof shall be binding and effective unless in writing and signed by all of the Parties. 7 SEVERABILITY k t c; 15 Ink The Parties each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring the Parties to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or City Code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. ommik Page 16 2-2 8. GOVERNING LAW, VENUE AND ATTORNEY FEES The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement shall be tried in a court of competent jurisdiction in Pinal County, Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Warty shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing Party in such action shall recover all costs including all litigation and appeal expenses, collection expenses, reasonable attorneys' fees, necessary witness fees and court costs to be determined by the court in such action. 9 NOTICES All notices and insurance certificates required under this Agreement shall be sent as follows: If to City: City Manager City of Apache Junction 300 East Superstition Blvd. Apache Junction, AZ 85119 And to: City Attorney City of Apache Junction 300 East Superstition Blvd. Apache Junction, AZ 85119 If to District:Board Chair Apache Junction Fire District 565 North Idaho Rd. Apache Junction, AZ 85119 And to: Donna Aversa Leonard & Felker, PLC 7440 North Oracle Road, Bldg. 2 Tucson, AZ 85704-6376 Paw., 17 10. CONFLICTS OF INTEREST The provisions of A.R.S. § 38-511 relating to cancellation of contracts due to conflicts of interest shall apply to this Agreement. IN WITNESS WHEREOF, the Farties hereto have caused this Agreement to be duly executed as of the day and year first above written. APACHE JUNCTION FIRE DISTRICT, a special taxing district, By: Todd House, Fire Board Chairman ATTEST: Linda Shank, Clerk of the Board THE CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By: John Insalaco, Mayor ATTEST: Kathleen Connelly, City C1erk_ Page 18 2-2 STATE OF ARIZONA ) 1 ss COUNTY OF PINAL ) The foregoing instrument was acknowledged before me , 2013, by Todd House, as Chairman of the Apache Junction Fire District Board, who acknowledged that he signed the foregoing instrument on behalf of District. Notary Public STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoing instrument was acknowledged before me , 2013, by John S lnsalaco, Mayor of the City of Apache Junction, who acknowledged that he signed the foregoing instrument on behalf of City Notary Public Page 19 2-2 COUNSEL APPROVAL AS TO FORM. I have read this Agreement and have determined such Agreement is in proper form and is entered into within the powers of and authority granted under the laws of the State of Arizona. Donna Aversa, Apache Junction Fire District Attorney Date I have read this Agreement and have determined such Agreement is in proper form and is entered into within the powers of and authority granted under the laws of the State of Arizona. Richard J. Stern, Apache Junction City Attorney Date P- e2022 EXHIBIT A AUTOMATIC EXTRENAL DEFIBRILLATORS PLACED IN CITY FACILITIES. Facility Address Location 1 Superstition Aquatic Center 1091 W. Southern Ave Lifeguard Office [Donna:Same issue as before. City and School District IGA has expired, so City may not have use of these facilities as they are located solely on AJUSD property I suggest deletion and renumbering.] 2 Multi-Generational Building 1035 N Idaho Rd Front Desk 3. Multi-Generational Building 1035 N Idaho Rd Senior Center 4 Municipal Court Building 300 E Superstition Blvd. Main Lobby Hallway 5 City Council Chambers 300 E. Superstition Blvd Main Public Lobby 6 Library 1177 N Idaho Rd Main Public Lobby 7 Development Services (SEE NOTE) 300 E. Superstition Blvd Main Public Lobby 8 Public Works Facility (SEE NOTE) 575 E Baseline Ave Unknown [Note This needs to be cleared up by City staff and the location needs to be referenced.] NOTE• The initial AED units were not provided at District cost, and are of a different manufacturer than those serviced and maintained by District. District will provide regular courtesy inspections, but supplies and service are the sole responsibility of City Page 21 22 EXHIBIT B TRAFFIC SIGNALS OUTSIDE OF CITY OF APACHE JUNCTION WITH TRAFFIC PRE-EMPTION CONTROL: Cross Roads Location Mile Post Roadway Jurisdiction 9 US 60& Mountain View Rd AJ 199 5 (approx) ADOT 10 US 60 & Superstition Mt Blvd GC 201 (approx.) ADOT 11 US 60 &Mountain Brook Dr GC 202 (approx) ADOT 12 US 60 &Kings Ranch Rd. GC 202.5 ADOT 13 US 60 & Peralta Trails Rd GC 204 2 ADOT *Placement and Installation of devices is dependent on ADOT approval Ask Pages 22 22 ~�0 yo CZ 1 f ache Junction 2 Home of the Superstft/on Mountains 4 ofzoto• Print TO: City Manager's Office FROM Heather Patel, Grants Coordinator DATE: April 15, 2013 Agenda Type : Work Session Agenda Council Priority Focus Area: Community Development TITLE OF AGENDA ITEM: PRESENTATION AND DISCUSSION OF RESOLUTION NO 13-10, RECOMMENDING THE CITY'S FISCAL YEAR 2013 LOCAL TRANSPORTATION ASSISTANCE FUND II ALLOCATION BE DIRECTED TO THE APACHE JUNCTION ACTIVE ADULT CENTER AND AUTHORIZING THE MAYOR TO SIGN A PASS THROUGH AGREEMENT ACTION REQUESTED. Presentation and Discussion DISCUSSION / BACKGROUND INFORMATION• Pursuant to the court order filed in Paisley v Darwin, Valley Metro Regional Public Transportation Authority receives monthly distributions of lottery revenues for public transportation purposes in Maricopa County Funding will be distributed directly to eligible jurisdictions within the county To receive the funds allocated to Maricopa County communities, jurisdictions must apply annually In FY 2013, Apache Junction will receive $865.00 An application was submitted March 18, 2013 to the Valley Metro Regional Public Transportation Authority. FISCAL IMPACT: Budgetary Approval Not Required ^1PTIONS/ALTERNATIVES: Statutory Requirement RECOMMENDATION: Staff respectfully requests, the City Council receive a presentation and discuss Resolution No. 13-10 recommending the City's Fiscal Year 2013 Local Transportation Assistance Fund II allocation be directed to the Apache Junction Active Adult Center(dba East Valley Adult Resources)for support of transportation services and authorizing the Mayor to sign a pass- through agreement ATTACHMENTS: Click to download L] Staff Report D Resolution 13-10 D Pass Through Agreement peACHf✓ pk 2 U : g' CityofA ache Junction 4 'y° Development Services Department MEMORANDUM DATE: April 4,2013 oink TO The Honorable Mayor and City Council THROUGH. George Hoffman,City Manager Brad Steinke, Development Services Director Roger Hacker,Revenue Resources Manager FROM Heather Patel, Grants Coordinator SUBJECT. Local Transportation Assistance Fund II Application for Fiscal Year 2013 REQUEST Presentation and discussion on Resolution No. 13-10 recommending the City's Fiscal Year 2013 Local Transportation Assistance Fund (hereinafter"LTAF") II allocation be directed to the Apache Junction Active Adult Center(dba East Valley Adult Resources)for support of transportation services and authorizing the Mayor to sign a pass-through agreement BACKGROUND Pursuant to the court order filed in Paisley v Darwin, the State Treasurer resumed distribution of multi-state lottery game proceeds to the Public Transportation Fund in Maricopa County in Fiscal Year 2012. To date, the Legislature has not enacted any statute that would supersede the court order and Valley Metro Regional Public Transportation Authority ("RPTA") continues to l iN receive monthly distributions of lottery revenues for public transportation purposes Lottery revenues for FY2013 are estimated to be$11,224,800 Maricopa County and jurisdictions within the county that receive LTAF funding are required to use the funding for public transportation There is no local match requirement for these funds. Public transit is defined as any service, vehicle(s), or support facility for a vehicle(s), intended for the purpose of conveying multiple passengers (i e typically 5 or more) and which meets applicable state and federal safety and accessibility laws, rules, and regulations. The definition also includes the planning and administrative support for such services It is the intent of the program to provide funds for the purpose of providing transit service or facilities that is available to the following populations. • The general public; • Elderly persons, • Persons with disabilities; • Welfare recipients and "low-income"persons engaged in employment activities Funding will be distributed directly to eligible jurisdictions in the county and includes Maricopa County, and cities and towns within the county In the case of private, not-for-profit agencies and private, for-profit transit providers, the city receiving the LTAF funding must enter into a agreement with the proposed operator to provide the transportation service approved by the City Council The agreement, accompanied by Council resolution, must be available to Valley Metro RPTA as evidence of the agreement DISCUSSION To receive the funds allocated to Maricopa County communities, jurisdictions must apply annually In FY 2013, Apache Junction will receive $865 An application was submitted March 18,2013 to the Valley Metro Regional Public Transportation Authority Barring any objections, staff will place Resolution No. 13-10 on the May 7. 2013 consent agenda. RECOMMENDATION Staff respectfully requests,the City Council receive a presentation and discuss Resolution No 13-10 recommending the City's Fiscal Year 2013 Local Transportation Assistance Fund (hereinafter"LTAF") II allocation be directed to the Apache Junction Active Adult Center(dba East Valley Adult Resources)for support of transportation services and authorizing the Mayor to sign a pass-through agreement ACTION REQUIRED Presentation and discussion. Attachment 1. Resolution Number 13-10 Attachment 2 Grant pass-through agreement between the City of Apache Junction and East Valley Adult Resources. 3f RESOLUTION NO. 13-10 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, AUTHORIZING SUBMISSION OF A GRANT APPLICATION TO THE VALLEY METRO REGIONAL PUBLIC TRANSPORTATION AUTHORITY FOR PARTICIPATION IN ITS egiN FISCAL YEAR 2012-2013 LOCAL TRANSPORTATION ASSISTANCE FUND II PROGRAM WHEREAS, the City of Apache Junction is desirous of meeting the transportation needs of its citizens; and WHEREAS, East Valley Senior Adult Resources, Inc , which manages the Apache Junction Active Adult Center, has requested assistance from the City in meeting the transportation needs of senior citizens residing within the City limits; and WHEREAS, pursuant to Arizona Revised Statutes Section 28-8101, et seq. , the Valley Metro Regional Public Transportation Authority ("RPTA") is administering the Local Transportation Assistance Fund (hereinafter "LTAF") II Program, and WHEREAS, the activities within this grant address identified community needs, and WHEREAS, a grantee of LTAF II funds is required to comply with the program guidelines and federal statutes and regulations . NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, AS FOLLOWS: 1) The Mayor and City Council of the City of Apache Junction authorize application to be made to the RPTA for Fiscal Year 2012-2013 LTAF II funds. 2) The City Manager or his designee is authorized to sign an application for receipt and use of these funds in an amount not to exceed $865. 00 for East Valley Adult Resources, Inc for its transportation program for the Apache Junction Active Adult Center. 3) The City Manager or his designee, is authorized to take all actions necessary to implement and complete the activities submitted in said grant . 4) The application for Maricopa County LTAF II funds meets the program requirements for the transportation of senior RESOLUTION NO 13-10 PAGE 1 OF 2 ON citizens, persons with disabilities and/or the general public. 5) The City of Apache Junction shall comply with all LTAF II guidelines, federal statutes and regulations applicable to the LTAF II Program. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS DAY OF , 2013 SIGNED AND ATTESTED TO THIS DAY OF , 2013 JOHN S. INSALACO Mayor ATTEST. 1 j KATHLEEN CONNELLY City Clerk 1 APPROVED AS TO FORM• RICHARD J. STERN City Attorney RESOLUTION NO 13-10 PAGE 2 OF 2 When recorded return to. Richard Joel Stern, Esq. Apache Junction City Attorney 300 East Superstition Blvd. Apache Junction, AZ 85119 GRANT PASS THROUGH AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND EAST VALLEY ADULT RESOURCES THIS GRANT PASS THROUGH AGREEMENT (the "Agreement") is made as of the day of 2013, by and between CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City") and East Valley Adult Resources, a nonprofit agency ("EVAR"). City and EVAR are sometimes referred to herein collectively as the "Parties," or individually as a "Party." RECITALS A. EVAR is a nonprofit organization which provides social, recreational, fitness, advocacy, and transportation services at the Apache Junction Active Adult Center for Apache Junction residents. B. EVAR desires to utilize Local Transportation Assistance Fund II ("LTAFII") funding for transportation services in Apache Junction. C. The Valley Metro Regional Public Transportation Authority ("RPTA") desires to convey to City a portion of its annual allocation required to be paid to local governments for the benefit of public transportation, pursuant to a court order filed in Paisley v. Darwin, U.S. Dist. Ct (Ariz ), No. CV-10-1253-PHX-DGC, 2011 WL 3875992, resuming distribution of multi-state lottery game proceeds to the Public Transportation Fund in Maricopa County, for disbursement by City to EVAR. D City desires to disburse the aforementioned contribution to the EVAR and to set forth the mutual understandings between City and EVAR E. There is a need for mutual cooperation for a pass through of grant funds from RPTA to City and ultimately to East Valley Adult Resources. F Mutual cooperation would result in EVAR's obtaining assistance from City, which translates to public savings. 1 G The Parties have mutual interests in this project and wish to enter into this Agreement with certain terms and conditions. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows 1 ACCURACY OF THE RECITALS: The Parties hereby confirm the accuracy of the Recitals set forth above, which are incorporated herein by this reference. 2 CITY'S OBLIGATIONS: City agrees to do all of the following: a Disburse the aforementioned RPTA contribution to EVAR. b. Review copies of all reports and documents sent to the RPTA by EVAR related to funded project. 3. EVAR'S OBLIGATIONS: EVAR agrees to do all of the following: a. Hold harmless the City of Apache Junction and its agents for any acts or omissions by City, its elected officials, appointees, and employees. b. Provide to the City of Apache Junction a copy of all reports and documents sent to the RPTA related to funded project no later than 30 days after their submission to RPTA 4. Purpose. The purpose of this Agreement is to set forth the rights and responsibilities of the Parties with respect to the acceptance and distribution of the contribution to EVAR. 5 Funding Schedule. RPTA shall deliver a one-time payment of $865 00 to the City for disbursement to EVAR for the provision of transportation services at the Apache Junction Active Adult Center ("Center"). The purpose of the contribution is to provide City residents with transportation to the Center, Center Programs, local medical appointments, and local shopping hubs. 6. Term. The Term of this Agreement is one calendar year from the execution date. 7. Indemnification and Hold Harmless. EVAR shall indemnify, defend and hold harmless the City, its Mayor and City Council, appointees, employees and agents from and against any and all suits, actions, legal or administrative proceedings, claims, demands, liens, losses, fines or penalties, damages, liability, interest, fees for attorneys, consultants and accountants or costs and expenses of any kind and nature, resulting from or arising out of the negligence or willful misconduct of City, its Mayor and City Council, appointees, employees and agents in performing the duties set forth in this Agreement. 8. Transactional Conflicts of Interest. The Parties acknowledge that this Agreement is subject to cancellation pursuant to the provisions of A.R.S. § 38-511. 9. Waiver. No waiver, whether written or tacit, of any remedy or provision of this Agreement shall be deemed to constitute a waiver of any other provision hereof or a permanent waiver of the provision concerned, unless otherwise stated in writing by the Party to be bound thereby. 10 Severability. City and RPTA each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws. However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or City Code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 11. No Third Party Beneficiary Rights. The Parties agree that no third party rights attach to this agreement. 12. Applicable Law and Venue: The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including. all litigation and appeal expenses, collection expenses, reasonable attorneys' fees, necessary witness fees and court costs to be determined by the court in such action. 13 Indemnification: To the fullest extent permitted by law, Consultant shall defend, indemnify and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability including but not limited to demands, claims, actions, fees, costs and expenses, including attorney and expert witness fees, arising from or connected with or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Consultant, its agents, employees, or any tier of Consultant's subcontractors in the performance of this Agreement. Consultant's duty to defend, hold harmless and indemnify City, its Special Districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by an Consultant's acts, errors, mistakes, omissions, work or services in the performance of this Agreement including any employee of Consultant, any tier of Consultant's subcontractor or any other person for whose acts, errors, mistakes, omissions, work or services Consultant may be legally liable 14 Notices Except as otherwise required by law, any notice required or permitted under this Agreement shall be in writing and shall be given by personal delivery, or by deposit in the United States mail, certified or registered, return receipt requested, postage prepaid, addressed to the Parties at their respective addresses set forth below, or at such other address as a Party may designate in writing pursuant to the terms of this Section, or by telecopy or telefacsimile machine, or by any nationally recognized express or overnight delivery service (e.g Federal Express or UPS), delivery charges prepaid: If to City. City of Apache Junction Attn: City Manager 300 E. Superstition Blvd. Apache Junction, Arizona 85119-2899 Telephone• (480) 474-5066 Facsimile. (480) 474-5110 If to EVAR. East Valley Adult Resources Attn: Executive Director 45 West University Suite A - Mesa, Arizona 85201 4 Telephone: (480) 964-9014 Facsimile. (480)898-7306 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. EAST VALLEY ADULT RESOURCES, an Arizona nonprofit organization By: Mary Turley Its: President, Board of Directors CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By- John S. Insalaco Its: Mayor ATTEST• By. Kathy Connelly, City Clerk APPROVE AS TO FORM: By: Richard J. Stern, City Attorney 5 ty til‘tart CZ'1 of Apache Junction O uk 2 Home qf the Superstition Mountains '�Q120Nh Print TO: City Manager's Office FROM: Emile Schmid P.E., Senior Project Engineer DATE: April 15, 2013 agenda Type : Work Session Agenda Council Priority Focus Area. Community Infrastructure TITLE OF AGENDA ITEM: PRESENTATION AND DISCUSSION ON PROJECT PW 2012-06, OLD WEST HIGHWAY SIDEWALK IMPROVEMENTS ACTION REQUESTED Presentation and Discussion DISCUSSION / BACKGROUND INFORMATION Presentation and discussion by staff on the bid opened on Wednesday, March 20, 2013 for the Old West Highway Sidewalk Improvements This project includes curb and gutter, sidewalk installation, drainage and other street related improvements. The bids ranged from $105,000 00 to $135,362.00. FISCAL IMPACT: Budgeted Expenditure OPTIONS/ALTERNATIVES ,ECOMMENDATION: Presentation and discussion ATTACHMENTS: Click to download i] Memo to Council D Construction agreement .PCH Public Works Department U ' 1' / tri �e /4 e z Home of the Superstition Mountains 4-Izo4. April 3,2013 Memorandum to. Honorable Mayor and Members of the Council Through George IIoffman,City Manager Giao Pham P.E.,Director of Public Works From Emile Schmid P.E.,Senior Project Engineer Regarding Award of Bid for Project PW 2012-06 Old West Highway Sidewalk Improvements Five hid proposals were received and opened on Wednesday,March 20, 2013. Seven construction firms were represented at a mandatory Pre-Bid Meeting held March 6,2013 The base bids ranged from $105,000.00 to$135,362.00. This project includes curb&gutter, sidewalk installation,drainage,and other street related improvements Work is scheduled to be completed by August 31, 2013. Base Bid Opening Summary Total Visus, Inc $105,000.00 Standard Construction $107,795 00 AJP Electric $114,968.50 RK Sanders $125,488.00 Nesbitt Contracting Co ,Inc $135,362 00 Engineering Opinion of Probable Cost $137,399.00 The Public Works Department recommends award to Visus, Inc for their bid,in the amount of $105,000 00 RECOMMENDED MOTION: I MOVE TO AWARD BID PW2012-06 TO VISUS,INC.IN THE AMOUNT OF$105,000.00,PLUS 5% FOR UNFORESEEN CHANGE ORDERS,$5,250.00, FOR A TOTAL OF$110,250.00. 575 E Baseline Avenue, Apache Junction AZ 85119 • Voice (480) 982-1055 • FAX (480)983-5752 or(480) 982-8005 Exhibit L City CF APSE JC1cI AGREEMENT FOR OLD WEST HIGHWAY SIDEWALK IMPROVEMENTS PROJECT PW 2012-06 THIS AGREEMENT made and entered into by and between the City of Apache 0114 Junction, an Arizona municipal corporation ("City") and Visus, Inc. , an Arizona corporation ("Contractor") . RECITALS A. In response to City' s Notice Inviting Bid Proposals dated February 20, 2013, and any addendums applicable thereto, Contractor submitted a proposal dated, March 20, 2013, in which Contractor asserts its willingness, ability and qualifications to provide this work and service. B City has complied with the public bidding requirements under Arizona Revised Statute Title 34 and Apache Junction City code Article 3-7 . C. City and Contractor desire to set forth herein their respective responsibilities and the manner and terms upon which Contractor shall render the services . NOW, THEREFORE, City retains Contractor to perform, and Contractor agrees to render the services in accordance with the terms and conditions set forth below. AGREEMENT 1 . PROJECT DESCRIPTION: CONTRACTOR shall do and perform or cause to be done and performed in a good workmanlike manner, the work in accordance with and as more fully described in the Notice Inviting Bid Proposals for Project No. PW2012-06, on file with the Public Works Department, which includes the following scope of work: This federally funded Community Development Block Grant project, Old West Highway Sidewalk Improvements will include the following. curb & gutter, sidewalk, drainage, and other street related improvements All work shall be completed in accordance with the following (hereinafter referred to as the Contract Documents) . 1) the construction plans entitled "Old West Highway Sidewalk Improvements, Project Number PW 2012-06; 2) the latest "Uniform Standard Specifications and Details for Public Works Construction" by the Maricopa Association of Governments; and 3) Engineering Standards and Details of the City of Apache Junction, all of which are hereinafter referred to as the Contract Documents. 2 . PAYMENTS & COMPLETION: The contract sum shall be the total amount payable by City to the Contractor in the amount of One Hundred Five Thousand Dollars and No Cents $105, 000 . 00 for the performance of the work ( ) 1 es ems under the contract documents except for changes authorized by properly executed change orders Upon notice that the work is ready for final inspection or acceptance, City representatives shall promptly cause to be made an inspection When City finds the work acceptable under the Contract Documents, City shall promptly submit for processing a certificate for payment stating that to the best of their knowledge, information and belief and on the basis of its observation and inspection, the work has been completed in accordance with the terms and conditions of the Contract Documents and that partial payment or the entire balance due the Contractor is payable No final payment shall become due until the Contractor submits to the all required lien waivers, releases and any other data establishing payment or satisfaction of all Contractor' s obligations . If any Subcontractor refuses to furnish a release or waiver required by City, Contractor may furnish a bond satisfactory to the City to indemnify City against any such lien. If any such lien remains unsatisfied after all payments are made, Contractor shall refund to City all monies that the latter may be compelled to pay in discharging such liens, including all costs and reasonable attorneys fees . 3 . CONTRACT TIME : Contractor hereby fixes the time for beginning work no later than May 21, 2013 and completion no later than August 31, 2013. Upon failure to complete work within the time specified, the Contractor shall pay as liquidated damages for the loss of use of the benefit of this project the sum as provided in Table 108 of the M.A.G. Specifications per day for each day the work remains unfinished. This provision does not limit the liability of Contractor for actual damages sustained by the City as a result of any breach of contract or warranty by the Contractor. 4 INDEPENDENT Contractor: Contractor shall at all times during Contractor' s performance of the services retain Contractor' s status as an independent Contractor. Contractor' s employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes, or provide workers compensation or unemployment insurance for or on behalf of them or Contractor Contractor shall supervise and direct the work to be done using its best skill and attention. Except as provided in this Agreement, Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures, and for coordinating iesq all portions of the work required by the contract documents . Contractor shall be responsible to City for the acts and omissions of its employees, Subcontractor' s and their agents and employees and other persons performing any of the work under any contract document. 5 LABOR AND MATERIALS : Unless otherwise provided in the contract documents, Contractor shall provide, pay and insure under the requisite laws and regulations for all labor, materials, equipment, tools and machinery, water, heat, utilities, transportation, other facilities and services necessary for the proper execution and completion of the work whether temporary or permanent, and whether or not incorporated or to be incorporated in the work. 6 INSPECTIONS AND QUALITY OF WORK. Contractor understands and specifically agrees that all work is to be performed pursuant to Maricopa Association of Governments specifications and details, ( "MAG" specifications and details" ) with City' s additions. Contractor agrees that it will conduct at least one pre-construction meeting before any work commences . While performing the services, Contractor shall exercise the reasonable professional care and skill customarily exercised by reputed 2 members of Contractor' s profession practicing in the Phoenix metropolitan area, and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. Contractor shall also be responsible for all errors and omissions Contractor commits in the performance of this Agreement. Contractor understands and agrees that inspection of the work being performed hereunder will occur by City. Contractor agrees that City will have the exclusive right to determine, in its sole discretion, whether the work has been performed in accordance with the Contract Documents, including MAG specifications and details. Contractor further agrees to make such corrections to the work as may be directed by City to conform to said Contract Documents including MAG specifications and details, without requirement of Change Order or any additional charge or cost to City el% whatsoever Contractor further agrees to make such corrections to the work within the time for completion of work as specified in Section 3 above and shall not be entitled to additional time for completion of work for any correction work needed to be performed hereunder Failure to perform correction work within the time to complete work as provided in Section 3 shall subject Contractor to liquidated damages as provided therein. 7 . WARRANTY : Contractor shall guarantee the work against defective workmanship or materials for a period of one year from the date of its final acceptance under the contract; ordinary wear and tear and unusual abuse or neglect excepted. Any omission on the part of City to condemn defective work or materials at the time of construction shall not be deemed an acceptance and Contractor will be required to correct defective work or materials at any time before final acceptance. Within one year from the date of final acceptance due to faults in workmanship or materials, the Contractor shall begin making the necessary repairs to the satisfaction of City within fourteen (14) calendar days of receipt of written notice from City. Such work shall include the repair or replacement of other work or materials damaged or affected by making the above repairs or corrective work all at no additional cost to City. In the case of work materials or equipment for which warranties are required by the special provisions, Contractor shall provide or secure from the appropriate Subcontractor or supplier such warranties addressed to and in favor of City and deliver same to City prior to final acceptance of the work Delivery of such warranties shall not relieve Contractor from any obligation assumed under any other provision of the contract . The warranties and guarantees provided in this subsection of the contract documents shall be in addition to and not in limitation of any other warrantees, guarantees or remedies required by law, and shall survive the expiration of this Agreement for the time period mentioned above. If the Contractor fails within a reasonable time to replace or repair any portion of the work deemed to be needed, the City may cause said work to be done and the Contractor agrees to pay all costs incurred, or the 'City may use the Warranty Bond to pay for costs incurred. 8 . TAXES : Contractor shall pay all license, sales, consumer, use and other similar taxes for the work or portions thereof provided by Contractor which are legally enacted at the time bids are received whether or not yet effective or subsequently applicable due to acts of jurisdictions or bodies other than City. 9. PERMITS & FEES : Unless otherwise provided in the contract documents, Contractor shall secure and pay for all permits, governmental fees, licenses and inspections necessary for the proper execution and completion of work which are customarily secured after execution of the contract and which are legally required. Contractor shall give all notices 3 es and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the work. City permits for this work will be provided to Contractor at no cost. Contractor understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Contractor agrees to obtain a business tax license pursuant to Article 8-5 of the Apache Junction City Code from the City Clerk' s Office and keep such license current during the term of this Agreement and after termination of this Agreement any time work is performed pursuant to the warranty provisions set forth in Section 5. Any activity by Subcontractor' s within the corporate City limits, will invoke the same business tax regulations on any Subcontractor' s, and Contractor ensures its Subcontractor' s will obtain any ^ required business tax license. 10. SUPERINTENDENT: Contractor shall employ a competent project superintendent who shall be in attendance at the project site during the progress of the work. The superintendent shall represent and be the community agent of Contractor and communications given to the superintendent shall be as binding as if given to Contractor Important communications shall be confirmed in writing. The designated superintendent' s contact information shall be provided to the Public Works Director or his designee in writing within five (5) working days after execution of this Agreement. 11 . PROGRESS SCHEDULE : Contractor shall, immediately after entering into this Agreement, reaffirm the estimated progress schedule as submitted with the bid proposal . Said progress schedule shall be maintained and updated during the project. 12. INDEMNIFICATION: To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability including but not limited to demands, claims, actions, fees, costs and expenses, including attorney and expert witness fees, arising from or connected with or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Contractor, its agents, employees, or any tier of Contractor' s subcontractors in the performance of this Agreement Contractor' s duty to defend, hold harmless emN and indemnify City, its Special Districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by an Contractor' s acts, errors, mistakes, omissions, work or services in the performance of this Agreement including any employee of Contractor, any tier of Contractor' s subcontractor or any other person for whose acts, errors, mistakes, omissions, work or services Contractor may be legally liable. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph. 13 SUBCONTRACTORS . All Subcontractors chosen by Contractor will be subject to City' s approval All Subcontractors shall be identified by Contractor prior to award of contract Contractor shall make no substitutions for any Subcontractor, person or entity previously selected without the approval of City. 4 14 . APPLICABLE LAW AND VENUE : The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona. The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing Party in such action shall recover all costs including: all /, litigation and appeal expenses, collection expenses, reasonable attorneys' fees, necessary witness fees and court costs to be determined by the court in such action. 15. INSURANCE : Contractor, at its own expense, shall purchase and maintain the herein stipulated minimum insurance with companies duly licensed in the State of Arizona, possessing a current A.M. Best, Inc. Rating of B++6, or approved unlicensed in the State of Arizona with policies and forms satisfactory to City All insurance required herein shall be maintained in full force and effect until all work or service required to be performed under the terms of the Agreement is satisfactorily completed and formally accepted, failure to do so may, at the sole discretion of the City constitute a material breach of this Agreement. Contractor' s insurance shall be primary insurance as respect to City, and any insurance or self-insurance maintained by City shall not contribute to it. Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect coverage afforded under the insurance policies to protect City. The insurance policies, except Workers Compensation, shall contain waiver of transfer rights of recovery (subrogation) against City, its agents, officers, officials and employees for any claims arising out of Contractor' s acts, errors, mistakes, omissions, work or services . The insurance policies may provide coverage which contain deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to City under such policies . Contractor shall be solely responsible for the deductible and/or self-insured retention and City, at its option, may require Contractor to secure payment of such deductibles or self-insured retentions by a Surety Bond or an irrevocable and unconditional letter of credit City reserves the right to request and to receive within ten (10) working days, certified copies of any or all of the herein required insurance policies and/or endorsements . City shall not be obligated, however, to review same or to advise Contractor of any deficiencies in such policies and endorsements, and such receipt shall not relieve Contractor from, or be deemed a waiver of City' s right to insist on strict fulfillment of Contractor' s obligations under this Agreement The insurance policies, except Workers Compensation and Professional Liability, required by this Agreement, shall name City, its Mayor, Council, 5 ems appointees, agents, officers, officials and employees as additional insured parties . REQUIRED COVERAGE Commercial General Liability Contractor shall maintain Commercial General Liability insurance with a limit of not less than $1, 000, 000 for each occurrence with a $2, 000, 000 Products/Completed Operations Aggregate and a $2, 000, 000 General Aggregate Limit. The policy shall include coverage for bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage including, but not limited to, the liability assumed under the indemnification provisions of this Agreement which coverage will be at least as broad as Insurance Service Office, Inc. Policy Form CG 00011-03 or any replacement thereof. Such policy shall contain a severability of interest provision, and shall not contain a sunset provision or commutation clause, nor any provision which would serve to limit third party action over claims The Commercial General Liability additional insured endorsement shall be at least as broad as the Insurance Service Office Inc. ' s Additional Insured Form CG 20101185, and shall include coverage for Contractor' s operations and products and completed operations. If required by this Agreement, if Contractor sublets any part of the work, services or operations, Contractor shall purchase and maintain, at all times during prosecution of the work, services or operations under this Agreement, an Owner and Contractor' s Protective Liability insurance policy for bodily injury and property damage, including death, which may arise in the prosecution of the Contractor' s work, service or operations under this Contract Coverage shall be on an occurrence basis with a limit not less than $1, 000, 000 per occurrence, and the policy shall be issued by the same insurance company that issues Contractor' s General Liability insurance. Workers' Compensation Contractor shall carry Workers Compensation insurance to cover obligations oft imposed by federal and state statutes having jurisdiction of Contractor' s employees engaged in the performance of the work or services; and Employer' s Liability insurance of not less than $100, 000 for each accident, $100, 000 disease for each employee, and $500, 000 disease policy limit. In case any work is subcontracted, Contractor will require all Subcontractors to provide Workers Compensation and Employer' s Liability to at least the same extent as required of Contractor. Professional Liability If deemed applicable by the City Attorney, Contractor will maintain Professional Liability insurance covering acts, errors, mistakes and omissions arising out of the work or services performed by Contractor, or any person employed by Contractor, with a limit of not less than $1, 000, 000 each claim. CERTIFICATE OF INSURANCE 6 Prior to commencing work or services under this Agreement, Contractor shall furnish the City with Certificates of Insurance, or formal endorsements as required by Agreement, issued by Contractors insurer (s) , as evidence that policies providing the required coverages, conditions and limits required by this Agreement are in full force and effect In the event any insurance policies required by this Agreement are written on a "claims made" basis, coverage shall extend for two (2) years past completion and acceptance of the Contractor' s work or services and as evidenced by annual Certificates of Insurance, to be filed with the City Clerk of City. ^ If a policy does expire during the life of the Agreement, a renewal certificate must be sent to City thirty (30) calendar days prior to the expiration date and all required insurance shall not expire, be cancelled, or materially changed without a minimum thirty (30) calendar days written notice to City from Contractor. All Certificates of Insurance shall be identified with bid serial number and title At the close of the project when the work has been accepted by the City, the Contractor shall provide a Warranty Bond in the amount of ten percent (10%) of the Performance Bond The Warranty Bond shall be held by the City during Warranty Period 16 CHANGE ORDERS : This is a Lump Sum Contract. However, change orders may be processed as delineated herein. A change order is a written order to Contractor, approved by the Director of Public Works, issued after execution of the contract authorizing a change in the work or an adjustment in the contract sum or the contract time. A change order signed by Contractor indicates its agreement therewith City may, without invalidating the contract, order changes in the work within the general scope of the contract consisting of additions, deletions or other revisions, the contract sum and the contract being adjusted accordingly. All such changes in the work shall be authorized by change order and shall be performed under the applicable conditions of the contract documents . City' s Director of Public Works shall have authority to order minor changes in the work not involving an adjustment in the contract sum or extension of contract time and not inconsistent with the intent of the contract documents . All such changes shall be effected by written order and shall be binding upon City and Contractor. 17 . SUCCESSORS & ASSIGNS City and Contractor each bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to all covenants, agreements and obligations contained in the contract documents Neither party to the contract shall assign the contract or sublet it as a whole without the written consent of the other, nor shall the Contractor assign any monies due or to become due to or to become due to it without the previous written consent of City 18 . WRITTEN NOTICE : Written notice shall be deemed to have been duly served if delivered in person to the individual or member of the firm or entity, or to an office of the corporation for whom it was intended or if delivered at or sent registered or certified mail, return receipt requested, and first class postage prepaid to the last business address known to them who gives the notice. 7 19 . CLAIMS FOR DAMAGES : Should either party to the contract suffer injury or damage to personal property because of any act or omission of the other party or of their employees or agents for whose acts they are legally liable, claims shall be made in writing to such other parties within a reasonable time after the first observance of such injury or damages . 20. PERFORMANCE BOND & LABOR & MATERIAL PAYMENT BOND : City shall have the right to require Contractor to furnish bonds covering the faithful performance of the contract and the payment of all obligations arising thereunder. Attached are standard bond forms which must be completed by Contractor, and Contractor agrees to conform to all provisions set forth in such forms 21 . SAFETY: Except as provided herein with respect to trench excavation and traffic regulations, Contractor and/or its Subcontractors shall be solely responsible for job safety at all times 22 . RIGHTS & REMEDIES : The duties and obligations imposed by the contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by City or Contractor shall constitute a waiver of any right or duty afforded any of them under the contract, nor shall any action or failure to act constitute an approval of or an acquiescence to any breaches thereunder except as may be specifically agreed to in writing. 23 FORCE MAJEURE . Neither City nor Contractor, as the case may be, shall be considered not to have performed its obligations under this Agreement in the event of enforced delay (an "Enforced Delay") due to causes beyond its control and without its fault or negligence or failure to comply with applicable laws, including, but not restricted to, acts of God, fires, floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subcontractors or material men due to such causes, acts of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or eco-terrorism) , nuclear radiation, blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain of any governmental body on behalf ems of any public entity, or a declaration of moratorium or similar hiatus (whether permanent or temporary) by any public entity directly affecting the obligations under this Agreement In no event will Enforced Delay include any delay resulting from unavailability for any reason of labor shortages, or the unavailability for any reason of particular Contractors, subcontractors, vendors or investors desired by Contractor in connection with the obligations under this Agreement Contractor agrees that Contractor alone will bear all risks of delay which are not Enforced Delay In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay, provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) calendar days after such Party knows or should know of any such Enforced Delay, first notify the other Party of the specific delay in writing and claim the right to an extension for the period of the Enforced Delay; and provided further that in no event shall a period of Enforced Delay exceed ninety (90) calendar days. 24 TERMINATION. 8 Atook A. TERMINATION BY CITY: City shall be permitted to terminate this Agreement if in the discretion of the Public Works Director or his or her designee, believes Contractor has failed to meet the terms of this Agreement. City shall provide Notice of Termination to Contractor by Certified U.S . Mail ten (10) calendar days before such termination takes effect . B TERMINATION BY CONTRACTOR: Contractor may terminate this Agreement if City fails to make payment as agreed upon in this document. Any other termination will be deemed a breach of contract by Contractor. Contractor shall provide Notice of Termination to City by Certified U. S . Mail ten (10) calendar days before such termination takes effect. 25 . RECORDS : Records of Contractor' s labor, payroll and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request . Contractor shall maintain records for a period of at least five (5) years after termination of this Agreement, and shall make such records available during that retention period for examination or audit by City personnel during regular business hours 26. AMENDMENT : It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto, and that oral understandings or agreements not incorporated herein shall not be binding on the parties . 27 . SEVERABILITY . City and Contractor each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws . However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or City Code) , such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent Ambk reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 28 . CONFLICT OF INTEREST : The provisions of A R S . § 38-511 relating to cancellation of contracts due to conflicts of interest shall apply to this contract 29. COMPLIANCE WITH FEDERAL AND STATE LAWS . Contractor understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the services performed under this Agreement . 9 As required by A.R. S . § 41-4401, Contractor hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A.R. S . § 23-214 (A) . Contractor further warrants that after hiring an employee, Contractor will verify the employment eligibility of the employee through the E-Verify program If Contractor uses any subcontractors in performance of services, subcontractors shall warrant their compliance with all federal immigration laws and regulations that relate to its employees and A R S § 23-214 (A) , and subcontractors shall further warrant that after hiring an employee, such subcontractor verifies the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this Agreement. Contractor is subject to a penalty of $100 per day for the first violation, $500 per day for the second violation, and $1, 000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Contractor shall not be deemed in material breach of this Agreement if the Contractor and/or subcontractors establish compliance with the employment verification provisions of Sections 274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A R S § 23-214 (A) City retains the legal right to inspect the papers of any Contractor or subcontractor employee who works under this Agreement to ensure that the Contractor or subcontractor is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times . If state law is amended, the Parties may modify this paragraph consistent with state law. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be signed by their duly authorized representative as of this day of , 2013 . By: Title. STATE OF ARIZONA ) ss . COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2013, by as Contractor in the above-referenced Agreement . Witness my hand and official seal 10 My Commission Expires : Notary Public 11 City OF APACHE JUNCTION an Arizona municipal corporation By: JOHN S . INSALACO Its MAYOR /'\ ATTEST: Kathleen Connelly City Clerk APPROVED AS TO FORM: Richard J Stern City Attorney STATE OF ARIZONA ) ss COUNTY OF PINAL ) The foregoing instrument was acknowledged before me this day of , 2013, by , as (Name) (Title) of the City of Apache Junction, an Arizona municipal corporation, for and on behalf of said Corporation. in the above-referenced Agreement. Witness my hand and official seal My Commission Expires - Notary Public 12 STATUTORY PASMIIIT MIND PURSUANT MD TITLE 34, C IP,PIER 2, ARTICLE 2, OF THE AM.= PEVISED ST UI'ES (Penalty of this Bore MIST be 100% of the Contract Atrotmt) KNOW ALL NEN BY THESE PRESENTS That, (hereinafter called the Principal), as Principal, and , a =pang /corporation holding a Certificate of Authority to transact surety business in the State of Arizona as issued by the Director of the Lartrent of Insurance pursuant to Title 20, Chapter 2, Article 1, with its principal office in the City of (hereinafter called the Surety) are held and firmly bound unto the City of Apache Junction (hereinafter cal led the Obligee), in the amount of Dollars ($ /^ ), for the payment whereof, the said Principal and Surety bind themselves, their heirs, administrators, executors, sucrpssors and assigns, jointly and severally, finely by these presents [nhERMS, the Principal has entered into a certain written contract with the Obligee, dated day of , 2012 to which contract is hereby referred to and made a part hereof as fully and to the sane extent as if copied at length herein. NOW, THEREFORE, THE C CUEli 1'1C NS OF THIS OBLIGATION IS SUCH, that if the said Principal shall promptly pay all nnneys due to all persons supplying labor or materials to Principal or Principal 's Slab-Contractors in the prosecution of the work provided for in said cantract, this obligation shall be void. Otherwise it remains in full force and effect. PRNIDID, HOWEVER, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, of the Arizona Revised Statutes, all liabilities on this bend shall he determined in accordance with the provisions, conditions and limitations of said Title, Chapter and Article, to the same extent as if they were copies at length herein. The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees as nay be fixed by the judge of the court. Witness cur hand this day of , 2013. PRINCIPAL SEAL BY- AGENCY OF RECORD AL7 ADLRESS SURETY SEAL BY. 13 STA UIORY PERFORMANCE BOND PURSUANT TO TITLE 34, CHAPTER 2, ARTICLE 2, OF THE ARIZC1 A REVISED STATUTES (Penalty of this Bowl MUST be 100% of the Contract Amotmt) E 73 ALL MEN BY THESE PRESENTS. That, (hereinafter called the Principal) , as Principal, and , a company /corporation holding a Certificate of Authority to transact surety business in the State of Arizona as issued by the Director of the Department of Insurance pursuant to (hereinafter called the Surety) are held and firmly bound unto the City of Apache Junction (hereinafter called the Obligee) , in the amount of Dollars ($ ) , for the payment whereof, the said Principal and Surety bind themselves, their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents WHEREAS, the Principal has entered into a certain written contract with the Obligee, dated day of ,20 _ to which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION IS SUCH, that if the Principal faithfully performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of the contract during the original term of the contract and any extension of the contract, with or without notice to the surety, and during the life of any guaranty required under the contract, and also performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of all duly authorized modifications of the contract that may hereafter be made, notice of which modifications to the surety being hereby waived, the above obligation is void Otherwise it remains in full force and effect PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, of the Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the extend as if they were copies at length in this agreement The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees as may be fixed by the judge of the court Witness our hand this day of , 20 PRINCIPAL SEAL BY- AGENCY OF RED N=Y AEQ ESS SMY BY: ATItEY IN FACT 14 Ageb. oak. CITY OF APACHE JUNCTION WARRANTY BOND PROJECT NO.PW2012-06 BOND NO PREMIUM NO WHEREAS, the City of Apache Junction (hereafter"City") and (hereafter"Principal") have entered into an agreement ("Agreement") dated - , 20 , whereby Principal agreed to install and complete certain designated public improvements as a condition of relating to at Principal's own expense and which Agreement is hereby referred to and made a part hereof, and WHEREAS, Principal is required under the terms of the Agreement to furnish warranty security for the work performed pursuant to the Agreement in the amount of ten percent (10%) of the original amount of the security deposit to guarantee replacement and repair of the improvements as described in the Agreement for a period of one year following final acceptance of said improvements NOW, THEREFORE, we, Principal, and ("Surety"), are held and firmly bound unto City in the penal sum of ($ ) lawful money of the United States, for the payment of which we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally The condition of this obligation is such that if Principal shall indemnify City for all loss that City may sustain by reason of any defective materials or workmanship which become apparent during the period of one year from and after acceptance of the improvements by the City, then this obligation shall be null and void, otherwise, this obligation shall remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorneys' fees incurred by City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered Surety shall provide City with thirty (30) days' written notice of Principal's default prior to Surety terminating, Asia- suspending or revoking the bond In witness whereof, this instrument has been duly executed by Principal's and Surety on , 20 Principal Surety By Attorney-in-Fact Address 15 City OF APAC HE JUNCI'ICN PROJECT NO. PW2012-06 CERTIFICATE OF INSURANCE The certifies that the following insurance policies have been issued on behalf of: NINE OF INSURED. ADDRESS OF INSURED. Tye of Rplicy Fffect Expire Limits of Insurance Nurber Date Late Li.ability 1. Workman' s $100,000 Each Accident, Compensation $100,000 Each Disease, $500,000 Disease Policy Limit 2 Commercial $1,000,000 Each Occurrence, General $2,000,000 Products Liability /Completed Operations Aggregate; $2,000,000 General Aggregate Limit 3 Contractual $1, 000, 000 Each Bodily Injury Occurrence & Property Damage 4 Professional $1, 000, 000 Each Claim . Liability 5 Automobile $1, 000, 000 Each . Bodily Injury Occurrence & Property `.... Damage It is further agreed that these policies shall not expire, be canceled or changed until all work has been completed and the project has been accepted by the City. If a policy does expire during the life of the contract, a renewal Certificate of the required coverage must be sent to the City of Apache Junction not less than thirty (30) calendar days prior to expiration date. This Certificate is not valid unless countersigned by an authorized representative of the Insurance Company. The Certificate of Insurance must also provide that the City, its Mayor, Council, appointees, officers, employees and agents, are additional insured parties Date: Countersigned by- Title. SUBSCRIBED AND SWORN TO before me this day of ,2013 by as Insurer Notary Public My Commission Expires 16 ° m Gifu of Apache Junction Home of the Superstition Mountains .1 ,zo'h Print TO: City Manager's Office FROM: Emile Schmid P.E., Senior Project Engineer DATE: April 15, 2013 Agenda Type • Work Session Agenda Council Priority Focus Area. Community Infrastructure TITLE OF AGENDA ITEM PRESENTATION AND DISCUSSION ON PROJECT PW 2010-22B, NORTH APACHE TRAIL IMPROVEMENTS PHASE 2 ACTION REQUESTED- Presentation and Discussion DISCUSSION/ BACKGROUND INFORMATION: Presentation and discussion by staff on the bid opened on Wednesday, March 13, 2013 for the North Apache Trail Improvements Phase 2. This project includes vertical curb, sidewalk, ADA accessible ramps, concrete headwalls, drainage grading, streetlights, signing and striping, landscaping and other related improvements. The bids ranged from $585,162 15 to $787,062 00 FISCAL IMPACT: Budgeted Expenditure OPTIONS/ALTERNATIVES. RECOMMENDATION: Presentation and discussion ATTACHMENTS: Click to download ❑ Memo to Council ❑ Construction Agreement •A,CH Public Works Department etly 14/464 414a4:014 � a Home of the Superstition Mountains 4RIZO1A April 3,2013 Memorandum to. Honorable Mayor and Members of the Council Through George I loffman,City Manager Giao Pham P E,Director of Public Works From Emile Schmid P.E., Senior Project Engineer Regarding Award of Bid for Project PW 2010-22B North Apache Trail Improvements Phase 2 Seven bid proposals were received and opened on Wednesday,March 13,2013 Fifteen construction firms were represented at a mandatory Pre-Bid Meeting held February 20, 2013 The bids ranged from $585,162 15 to$787,062.00. This project includes vertical curb, sidewalk,ADA accessible ramps,concrete headwalls,drainage grading, streetlights, signing and striping,landscaping, and other related improvements. Work is scheduled to be completed by August 31, 2012 Base Bid Opening Summary Base Bid Bid Alt#1 Bid A1t#2 Total Val-E West Construction,Inc $481,480 75 $85,950.00 $107,604.10 $675,034.85 •-� Nesbitt Contracting Co, Inc $379,011 40 $85,592 25 $120,558 50 $585,162 15 Visus,Inc. $454,900 00 $81,000 00 $96,000 00 $631,900 00 AJP Electric,Inc $420,635.85 $114,735.00 $120,909.85 $656,280.70 J Banicki Construction,Inc $410,184 05 $99,000.00 $115,241.95 $624,426.00 Standard Construction $502,851 25 $93,000 00 $163,318 00 $759,169 25 B&F Contracting, Inc. $506,760.00 $152,595 00 $127,707.00 $787,062 00 Engineenng Opinion of Probable Cost The Public Works Department recommends award to Nesbitt Contracting Co,Inc for their bid,in the amount of$585,162.15. RECOMMENDED MOTION: I MOVE TO AWARD BID PW2010-22B TO NESBITT CONTRACTING CO.,INC.IN THE AMOUNT OF$585,162.15,PLUS 5% FOR UNFORESEEN CHANGE ORDERS,$29,258.11, FOR A TOTAL OF$614,420.26. 575 E. Baseline Avenue, Apache Junction AZ 85119 • Voice (480)982-1055 • FAX (480) 983-5752 or(480) 982-8005 Exhibit L City OE' AFr.3HE Jt1CTICN AGTUMMENT FOR NORTH APACHE TRAIL IMETKAna4URTS APACHE TRAIL TO IDAHO ROAD, PHASE 2 PROJECT PW 2010-22B OIS THIS AGREEMENT made and entered into by and between the City of Apache Junction, an Arizona municipal corporation ("City") and Nesbitt Contracting Co. , Inc. , an Arizona corporation ("Contractor") RECITALS A. In response to City' s Notice Inviting Bid Proposals dated January 30, 2013, and any addendums applicable thereto, Contractor submitted a proposal dated, March 13, 2013, in which Contractor asserts its willingness, ability and qualifications to provide this work and service B. City has complied with the public bidding requirements under Arizona Revised Statute Title 34 and Apache Junction City code Article 3-7 C. City and Contractor desire to set forth herein their respective responsibilities and the manner and terms upon which Contractor shall render the services . NOW, THEREFORE, City retains Contractor to perform, and Contractor agrees to render the services in accordance with the terms and conditions set forth below- AGREEMENT 1 PROJECT DESCRIPTION• CONTRACTOR shall do and perform or cause to be done and performed in a good workmanlike manner, the work in accordance with and as more fully described in the Notice Inviting Bid Proposals for Project No. PW2010-22B, on file with the Public Works Department, which includes the following scope of work: This federally funded Community Development Block Grant project, North Apache improvements (Phase 2) will include the following- vertical curb, sidewalk, ADA accessible ramps, concrete headwalls, drainage grading, streetlights, signing and striping, and other street related improvements. All work shall be completed in accordance with the following (hereinafter referred to as the Contract Documents) : 1) the construction plans entitled "City of Apache Junction public Works Department North Apache Trail Improvements, Project Number PW 2010-22B"; 2) the latest "Uniform Standard Specifications and Details for Public Works Construction" by the Maricopa Association of Governments; and 3) Engineering Standards and Details of the City of Apache Junction, all of which are hereinafter referred to as the Contract Documents. 1 2 . PAYMENTS & COMPLETION: The contract sum shall be the total amount payable by City to the Contractor in the total amount of Five Hundred Eighty Five Thousand One Hundred Sixty Two Dollars and Fifteen Cents ($585, 162 . 15) for the performance of the work under the contract documents except for changes authorized by properly executed change orders. Upon notice that the work is ready for final inspection or acceptance, City representatives shall promptly cause to be made an inspection. When City finds the work acceptable under the Contract Documents, City shall promptly submit for processing a certificate for payment stating that to the best of their knowledge, information and belief and on the basis of its observation and inspection, the work has been completed in accordance with the terms and conditions of the Contract Documents and that partial payment or the entire balance due the Contractor is payable No final payment shall 1^ become due until the Contractor submits to the all required lien waivers, releases and any other data establishing payment or satisfaction of all Contractor' s obligations. If any Subcontractor refuses to furnish a release or waiver required by City, Contractor may furnish a bond satisfactory to the City to indemnify City against any such lien. If any such lien remains unsatisfied after all payments are made, Contractor shall refund to City all monies that the latter may be compelled to pay in discharging such liens, including all costs and reasonable attorneys fees. 3 CONTRACT TIME : Contractor hereby fixes the time for beginning work no later than May 21, 2013 as, with completion no later than August 31, 2013 Upon failure to complete work within the time specified, the Contractor shall pay as liquidated damages for the loss of use of the benefit of this project the sum as provided in Table 108 of the M.A.G Specifications per day for each day the work remains unfinished. This provision does not limit the liability of Contractor for actual damages sustained by the City as a result of any breach of contract or warranty by the Contractor. 4 . INDEPENDENT Contractor . Contractor shall at all times during Contractor' s performance of the services retain Contractor' s status as an independent Contractor. Contractor' s employees shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes, or provide workers compensation or unemployment insurance for or on behalf of them or Contractor. Contractor shall supervise and direct the work to be done using its best skill and attention. Except as provided in this Agreement, Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the work required by the contract documents . Contractor shall be responsible to City for the acts and omissions of its employees, Subcontractor' s and their agents and employees and other persons performing any of the work under any contract document 5 . LABOR AND MATERIALS . Unless otherwise provided in the contract documents, Contractor shall provide, pay and insure under the requisite laws and regulations for all labor, materials, equipment, tools and machinery, water, heat, utilities, transportation, other facilities and services necessary for the proper execution and completion of the work whether temporary or permanent, and whether or not incorporated or to be incorporated in the work. 6 INSPECTIONS AND QUALITY OF WORK: Contractor understands and specifically agrees that all work is to be performed pursuant to Maricopa Association of Governments specifications and details, ( "HAG" specifications and details" ) with City' s additions. Contractor agrees 2 that it will conduct at least one pre-construction meeting before any work commences . While performing the services, Contractor shall exercise the reasonable professional care and skill customarily exercised by reputed members of Contractor' s profession practicing in the Phoenix metropolitan area, and shall use reasonable diligence and best judgment while exercising its professional skill and expertise. Contractor shall also be responsible for all errors and omissions Contractor commits in the performance of this Agreement Contractor understands and agrees that inspection of the work being performed hereunder will occur by City. Contractor agrees that City will have the exclusive right to determine, in its sole discretion, whether the work has been performed in accordance with the Contract Documents, including MAG specifications and details Contractor further agrees to OmS make such corrections to the work as may be directed by City to conform to said Contract Documents including MAG specifications and details, without requirement of Change Order or any additional charge or cost to City whatsoever. Contractor further agrees to make such corrections to the work within the time for completion of work as specified in Section 3 above and shall not be entitled to additional time for completion of work for any correction work needed to be performed hereunder. Failure to perform correction work within the time to complete work as provided in Section 3 shall subject Contractor to liquidated damages as provided therein. 7 . WARRANTY: Contractor shall guarantee the work against defective workmanship or materials for a period of one year from the date of its final acceptance under the contract; ordinary wear and tear and unusual abuse or neglect excepted Any omission on the part of City to condemn defective work or materials at the time of construction shall not be deemed an acceptance and Contractor will be required to correct defective work or materials at any time before final acceptance. Within one year from the date of final acceptance due to faults in workmanship or materials, the Contractor shall begin making the necessary repairs to the satisfaction of City within fourteen (14) calendar days of receipt of written notice from City. Such work shall include the repair or replacement of other work or materials damaged or affected by making the above repairs or corrective work all at no additional cost to City In the case of work materials or equipment for which warranties are required by the special provisions, Contractor shall provide or secure from the appropriate Subcontractor or supplier such warranties addressed to and in 1.1N favor of City and deliver same to City prior to final acceptance of the work. Delivery of such warranties shall not relieve Contractor from any obligation assumed under any other provision of the contract. The warranties and guarantees provided in this subsection of the contract documents shall be in addition to and not in limitation of any other warrantees, guarantees or remedies required by law, and shall survive the expiration of this Agreement for the time period mentioned above. If the Contractor fails within a reasonable time to replace or repair any portion of the work deemed to be needed, the City may cause said work to be done and the Contractor agrees to pay all costs incurred, or the 'City may use the Warranty pay Bond to a for costs incurred 8 TAXES . Contractor shall pay all license, sales, consumer, use and other similar taxes for the work or portions thereof provided by Contractor which are legally enacted at the time bids are received whether or not yet effective or subsequently applicable due to acts of jurisdictions or bodies other than City. 9 . PERMITS & FEES : Unless otherwise provided in the contract documents, Contractor shall secure and pay for all permits, governmental 3 ewN fees, licenses and inspections necessary for the proper execution and completion of work which are customarily secured after execution of the contract and which are legally required. Contractor shall give all notices and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the work. City permits for this work will be provided to Contractor at no cost Contractor understands that the activity described herein constitutes "doing business in the City of Apache Junction" and Contractor agrees to obtain a business tax license pursuant to Article 8-5 of the Apache Junction City Code from the City Clerk' s Office and keep such license current during the term of this Agreement and after termination of this Agreement any time work is performed pursuant to the warranty provisions ems set forth in Section 5 Any activity by Subcontractor' s within the corporate City limits, will invoke the same business tax regulations on any Subcontractor' s, and Contractor ensures its Subcontractor' s will obtain any required business tax license. 10 . SUPERINTENDENT : Contractor shall employ a competent project superintendent who shall be in attendance at the project site during the progress of the work. The superintendent shall represent and be the community agent of Contractor and communications given to the superintendent shall be as binding as if given to Contractor Important communications shall be confirmed in writing. The designated superintendent' s contact information shall be provided to the Public Works Director or his designee in writing within five (5) working days after execution of this Agreement . 11 . PROGRESS SCHEDULE : Contractor shall, immediately after entering into this Agreement, reaffirm the estimated progress schedule as submitted with the bid proposal . Said progress schedule shall be maintained and updated during the project 12 INDEMNIFICATION. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City, its elected and appointed officers, officials, agents, and employees from and against any and all liability including but not limited to demands, claims, actions, fees, costs and expenses, including attorney and expert witness fees, arising from or connected with or alleged to have arisen from or connected with, relating to, arising out of, or alleged to have resulted from the acts, errors, mistakes, omissions, work or services of Contractor, its agents, employees, or any tier of Contractor' s subcontractors in the performance of this Agreement Contractor' s duty to defend, hold harmless and indemnify City, its Special Districts, elected and appointed officers, officials, agents, and employees shall arise in connection with any tortious claim, damage, loss or expense that is attributable to bodily injury, sickness, disease, death, or injury to, impairment, or destruction of property including loss of use resulting therefrom, caused by an Contractor' s acts, errors, mistakes, omissions, work or services in the performance of this Agreement including any employee of Contractor, any tier of Contractor' s subcontractor or any other person for whose acts, errors, mistakes, omissions, work or services Contractor may be legally liable. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph. 13. SUBCONTRACTORS : All Subcontractors chosen by Contractor will be subject to City' s approval. All Subcontractors shall be identified by Contractor prior to award of contract. Contractor shall make no 4 /1 substitutions for any Subcontractor, person or entity previously selected without the approval of City. 14 . APPLICABLE LAW AND VENUE : The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona. Any action at law or in equity brought by either Party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Pinal County, State of Arizona The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county. In the event either Party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing Party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorneys' fees, necessary witness fees and court costs to be determined by the court in such action 15. INSURANCE Contractor, at its own expense, shall purchase and maintain the herein stipulated minimum insurance with companies duly licensed in the State of Arizona, possessing a current A.M. Best, Inc. Rating of B++6, or approved unlicensed in the State of Arizona with policies and forms satisfactory to City All insurance required herein shall be maintained in full force and effect until all work or service required to be performed under the terms of the Agreement is satisfactorily completed and formally accepted; failure to do so may, at the sole discretion of the City constitute a material breach of this Agreement. Contractor' s insurance shall be primary insurance as respect to City, and any insurance or self-insurance maintained by City shall not contribute to it Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect coverage afforded under the insurance policies to protect City. The insurance policies, except Workers Compensation, shall contain waiver of transfer rights of recovery (subrogation) against City, its agents, officers, officials and employees for any claims arising out of Contractor' s acts, errors, mistakes, omissions, work or services. The insurance policies may provide coverage which contain deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to City under such policies Contractor shall be solely responsible for the deductible and/or self-insured retention and City, at its option, may require Contractor to secure payment of such deductibles or self-insured retentions by a Surety Bond or an irrevocable and unconditional letter of credit City reserves the right to request and to receive within ten (10) working days, certified copies of any or all of the herein required insurance policies and/or endorsements . City shall not be obligated, however, to review same or to advise Contractor of any deficiencies in such policies and endorsements, and such receipt shall not relieve Contractor from, or be deemed a waiver of City' s right to insist on strict fulfillment of Contractor' s obligations under this Agreement. 5 The insurance policies, except Workers Compensation and Professional Liability, required by this Agreement, shall name City, its Mayor, Council, appointees, agents, officers, officials and employees as additional insured parties . REQUIRED COVERAGE Commercial General Liability Contractor shall maintain Commercial General Liability insurance with a limit of not less than $1, 000, 000 for each occurrence with a $2, 000, 000 Products/Completed Operations Aggregate and a $2, 000, 000 General Aggregate Limit. The policy shall include coverage for bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage including, but not limited to, the liability assumed under the indemnification provisions of this Agreement which coverage will be at least as broad as Insurance Service Office, Inc. Policy Form CG 00011-03 or any replacement thereof. Such policy shall contain a severability of interest provision, and shall not contain a sunset provision or commutation clause, nor any provision which would serve to limit third party action over claims. The Commercial General Liability additional insured endorsement shall be at least as broad as the Insurance Service Office Inc ' s Additional Insured Form CG 20101185, and shall include coverage for Contractor' s operations and products and completed operations If required by this Agreement, if Contractor sublets any part of the work, services or operations, Contractor shall purchase and maintain, at all times during prosecution of the work, services or operations under this Agreement, an Owner and Contractor' s Protective Liability insurance policy for bodily injury and property damage, including death, which may arise in the prosecution of the Contractor' s work, service or operations under this Contract Coverage shall be on an occurrence basis with a limit not less than $1, 000, 000 per occurrence, and the policy shall be issued by the same insurance company that issues Contractor' s General Liability insurance Workers' Compensation Contractor shall carry Workers Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of Contractor' s employees engaged in the performance of the work or services; and Employer' s Liability insurance of not less than $100, 000 for each accident, $100, 000 disease for each employee, and $500, 000 disease policy limit. In case any work is subcontracted, Contractor will require all Subcontractors to provide Workers Compensation and Employer' s Liability to at least the same extent as required of Contractor. Professional Liability If deemed applicable by the City Attorney, Contractor will maintain Professional Liability insurance covering acts, errors, mistakes and omissions arising out of the work or services performed by Contractor, or any person employed by Contractor, with a limit of not less than $1, 000, 000 each claim 6 CERTIFICATE OF INSURANCE Prior to commencing work or services under this Agreement, Contractor shall furnish the City with Certificates of Insurance, or formal endorsements as required by Agreement, issued by Contractors insurer (s) , as evidence that policies providing the required coverages, conditions and limits required by this Agreement are in full force and effect . In the event any insurance policies required by this Agreement are written on a "claims made" basis, coverage shall extend for two (2) years past completion and acceptance of the Contractor' s work or services and as evidenced by annual Certificates of Insurance, to be filed with the City Ask Clerk of City. If a policy does expire during the life of the Agreement, a renewal certificate must be sent to City thirty (30) calendar days prior to the expiration date and all required insurance shall not expire, be cancelled, or materially changed without a minimum thirty (30) calendar days written notice to City from Contractor All Certificates of Insurance shall be identified with bid serial number and title At the close of the project when the work has been accepted by the City, the Contractor shall provide a Warranty Bond in the amount of ten percent (10%) of the Performance Bond. The Warranty Bond shall be held by the City during Warranty Period. 16 . CHANGE ORDERS : This is a Lump Sum Contract . However, change orders may be processed as delineated herein . A change order is a written order to Contractor, approved by the Director of Public Works, issued after execution of the contract authorizing a change in the work or an adjustment in the contract sum or the contract time. A change order signed by Contractor indicates its agreement therewith City may, without invalidating the contract, order changes in the work within the general scope of the contract consisting of additions, deletions or other revisions, the contract sum and the contract being adjusted accordingly. All such changes in the work shall be authorized by change order and shall be performed under the applicable conditions of the contract documents . City' s Director of Public Works shall have authority to order minor changes in the work not involving an adjustment in the contract sum or extension of contract time and not inconsistent with the intent of the contract documents . All such changes shall be effected by written order and shall be binding upon City and Contractor. 17 . SUCCESSORS & ASSIGNS . City and Contractor each bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to all covenants, agreements and obligations contained in the contract documents . Neither party to the contract shall assign the contract or sublet it as a whole without the written consent of the other, nor shall the Contractor assign any monies due or to become due to or to become due to it without the previous written consent of City 18 . WRITTEN NOTICE • Written notice shall be deemed to have been duly served if delivered in person to the individual or member of the firm or entity, or to an office of the corporation for whom it was intended or if delivered at or sent registered or certified mail, return receipt requested, and first class postage prepaid to the last business address known to them who gives the notice. 7 ens 19. CLAIMS FOR DAMAGES . Should either party to the contract suffer injury or damage to personal property because of any act or omission of the other party or of their employees or agents for whose acts they are legally liable, claims shall be made in writing to such other parties within a reasonable time after the first observance of such injury or damages . 20 PERFORMANCE BOND & LABOR & MATERIAL PAYMENT BOND : City shall have the right to require Contractor to furnish bonds covering the faithful performance of the contract and the payment of all obligations arising thereunder Attached are standard bond forms which must be completed by Contractor, and Contractor agrees to conform to all provisions set forth in such forms . enN 21 SAFETY: Except as provided herein with respect to trench excavation and traffic regulations, Contractor and/or its Subcontractors shall be solely responsible for job safety at all times. 22 . RIGHTS & REMEDIES The duties and obligations imposed by the contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available bylaw. No action or failure P to act by City or Contractor shall constitute a waiver of any right or duty afforded any of them under the contract, nor shall any action or failure to act constitute an approval of or an acquiescence to any breaches thereunder except as may be specifically agreed to in writing. 23. FORCE MAJEURE Neither City nor Contractor, as the case may be, shall be considered not to have performed its obligations under this Agreement in the event g e t of enforced delay (an "Enforced Delay") due to causes beyond its control and without its fault or negligence or failure to comply with applicable laws, including, but not restricted to, acts of God, fires, floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subcontractors or materialmen due to such causes, acts of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or eco-terrorism) , nuclear radiation, blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain of any governmental body on behalf rN of any public entity, or a declaration of moratorium or similar hiatus (whether permanent or temporary) by any public entity directly affecting the obligations under this Agreement In no event will Enforced Delay include any delay resulting from unavailability for any reason of labor shortages, or the unavailability for any reason of particular Contractors, subcontractors, vendors or investors desired by Contractor in connection with the obligations under this Agreement Contractor agrees that Contractor alone will bear all risks of delay which are not Enforced Delay. In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay; provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) calendar days after such Party knows or should know of any such Enforced Delay, first notify the other Party of the specific delay in writing and claim the right to an extension for the period of the Enforced Delay; and provided further that in no event shall a period of Enforced Delay exceed ninety (90) calendar days 8 /N 24 . TERMINATION . A. TERMINATION BY CITY• City shall be permitted to terminate this Agreement if in the discretion of the Public Works Director or his or her designee, believes Contractor has failed to meet the terms of this Agreement. City shall provide Notice of Termination to Contractor by Certified U S Mail ten (10) calendar days before such termination takes effect. B TERMINATION BY CONTRACTOR: Contractor may terminate this Agreement if City fails to make payment as agreed upon in this document Any other /, termination will be deemed a breach of contract by Contractor. Contractor shall provide Notice of Termination to City by Certified U.S. Mail ten (10) calendar days before such termination takes effect. 25 . RECORDS : Records of Contractor' s labor, payroll and other costs pertaining to this Agreement shall be kept on a generally recognized accounting basis and made available to City for inspection on request. Contractor shall maintain records for a period of at least five (5) years after termination of this Agreement, and shall make such records available during that retention period for examination or audit by City personnel during regular business hours. 26. AMENDMENT . It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the parties hereto, and that oral understandings or agreements not incorporated herein shall not be binding on the parties 27 . SEVERABILITY• City and Contractor each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or City Code) , such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that ON this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 28 . CONFLICT OF INTEREST : The provisions of A.R.S. § 38-511 relating to cancellation of contracts due to conflicts of interest shall apply to this contract. 29 COMPLIANCE WITH FEDERAL AND STATE LAWS : Contractor understands and acknowledges the applicability of the American with Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free Workplace Act of 1989 to the services performed under this Agreement. 9 eN As required by A.R S. § 41-4401, Contractor hereby warrants its compliance with all federal immigration laws and regulations that relate to its employees and A R S § 23-214 (A) . Contractor further warrants that after hiring an employee, Contractor will verify the employment eligibility of the employee through the E-Verify program. If Contractor uses any subcontractors in performance of services, subcontractors shall warrant their compliance with all federal immigration laws and regulations that relate to its employees and A.R.S. § 23-214 (A) , and subcontractors shall further warrant that after hiring an employee, such subcontractor verifies the employment eligibility of the employee through the E-Verify program. A breach of this warranty shall be deemed a material breach of the Agreement that is subject to penalties up to and including termination of this eN Agreement Contractor is subject to a penalty of $100 per day for the first violation, $500 per day for the second violation, and $1, 000 per day for the third violation. City at its option may terminate this Agreement after the third violation. Contractor shall not be deemed in material breach of this Agreement if the Contractor and/or subcontractors establish compliance with the employment verification provisions of Sections 274A and 274B of the federal Immigration and Nationality Act and the E-Verify requirements contained in A.R. S . § 23-214 (A) City retains the legal right to inspect the papers of any Contractor or subcontractor employee who works under this Agreement to ensure that the Contractor or subcontractor is complying with the warranty. Any inspection will be conducted after reasonable notice and at reasonable times . If state law is amended, the Parties may modify this paragraph consistent with state law. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be signed by their duly authorized representative as of this day of , 2013 By. Title. STATE OF ARIZONA ss COUNTY OF The foregoing instrument was acknowledged before me this day of 2013, by as Contractor in the above-referenced Agreement. 10 Witness my hand and official seal My Commission Expires: Notary Public 11 City OF APACHE JUNCTION an Arizona municipal corporation By• JOHN S. INSALACO Its MAYOR ATTEST: Kathleen Connelly City Clerk APPROVED AS TO FORM: Richard J. Stern City Attorney STATE OF ARIZONA ) ss --. COUNTY OF PINAL The foregoing instrument was acknowledged before me this day of , 2013, by , as (Name) (Title) of the City of Apache Junction, an Arizona municipal corporation, for and on behalf of said Corporation in the above-referenced Agreement. Witness my hand and official seal. My Commission Expires . Notary Public 12 S] 1UItRY PAYMENT BCND PURSUANT TO TITLE 34, CHAPTER 2, ARTICLE 2, OF THE ARIZCNA REVISED STATUTES (Penalty of this Bond MJST be 100% of the Contract Amount) KNOW ALL NEN BY THEE PRESENTS - That, (hereinafter called the Principal), as Principal., ard , a ony /corporation holding a Certificate of Authority to transact surety business in the State of Arizona as issued by the Director of the Department of Insurance pursuant to Title 20, Chapter 2, Article 1, with its principal office in the City of (hereinafter called the Surety) are held and firmly bawd unto the City of Apache Junction (hereinafter ra1 led the (hi'gee), in the a rcu nt of Collars ($ ), for the payment whereof, the said Principal and Surety bird themselves, their heirs, adniriistrators, executors, successors and assigns, jointly and severally, finely by these presents. V 'AS, the Principal has entered into a certain written contract with the Cbligee, dated_day of , 2012 to which contract is hereby referred to and ngcb a part hereof as fully and to the sale extent as if copied at length herein NOW, TEE, THE OSIDITTCNS OF THIS CELIMTICN IS SUCH, that if the said Principal shall praptly pay all rroneys di to all persons supplying labor or materials to Principal or Principal's Sub-Contractors in the prosecution of the work provided for in said contract, this obligation shall be void. Otherwise it remains in full foicx and effect. PSG/TEED, HOWEVER, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, of the Arizona Revised Statutes, all liabilities on this bold shall be determined in accordance with the provisions, conditions and limitations of said Title, Chapter and Article, to the sale extent as if they were copies at length herein The prevailing party in a suit o7 this bond shall recover as part of the judg ent reasonable attorney fm-s as may be fixed by the judge of the court. Witness our hard this day of , 2013. PRINCIPAL SEAL BY. PI2ENEY OF RISSRD PL;QVCY ADERESS SURETY SEAL BY 13 S MUTORY PERFOMANCE MIND PURSUANT TO TITLE 34, CHAPTER 2, ARTICLE 2, OF THE ARIZCNA REVISED STATUTES (Penalty of this Bond I'UST be 100% of the Contract Amount) F N W ALL N]N BY TIESE =Ins. That, (hereinafter called the Principal) , as Principal, and , a company /corporation holding a Certificate of Authority to transact surety business in the State of Arizona as issued by the Director of the Department of Insurance pursuant to (hereinafter called the Surety) are held and firmly bound unto the City of Apache Junction (hereinafter called the Obligee) , in the amount of Dollars ($ ) , for the payment whereof, the said Principal and Surety bind themselves, their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written contract with the Obligee, dated day of ,20 _ to which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION IS SUCH, that if the Principal faithfully performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of the contract during the original term of the contract and any extension of the contract, with or without notice to the surety, and during the life of any guaranty required under the contract, and also performs and fulfills all of the undertakings, covenants, terms, conditions and agreements of all duly authorized modifications of the contract that may hereafter be made, notice of which modifications to the surety being hereby waived, the above obligation is void. Otherwise it remains in full force and effect PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, of the Arizona Revised Statutes, and all liabilities on this bond shall be determined in accordance with the provisions of Title 34, Chapter 2, Article 2, Arizona Revised Statutes, to the extend as if they were copies at length in this agreement The prevailing party in a suit on this bond shall recover as part of the judgment reasonable attorney fees as may be fixed by the judge of the court Witness our hand this day of , 20 PRINCIPAL SEAL BY• AGENCY OF RECORD I � ANY ADDRESS SURETY BY• ATIORTY IN FACT 14 CITY OF APACHE JUNCTION WARRANTY BOND PROJECT NO.PW2010-22B BOND NO. PREMIUM NO WHEREAS, the City of Apache Junction (hereafter"City") and (hereafter"Principal") have entered into an agreement("Agreement") dated - , 20 , whereby Principal agreed to install and complete certain designated public improvements as a condition of relating to at Principal's own expense and which Agreement is hereby referred to and made a part hereof; and WHEREAS, Principal is required under the terms of the Agreement to furnish warranty security for the work performed pursuant to the Agreement in the amount of ten percent (10%) of the original amount of the security deposit to guarantee replacement and repair of the improvements as described in the Agreement for a period of one year following final acceptance of said improvements NOW, THEREFORE, we, Principal, and ("Surety"), are held and firmly bound unto City in the penal sum of ($ ) lawful money of the United States, for the payment of which we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally. The condition of this obligation is such that if Principal shall indemnify City for all loss that City may sustain by reason of any defective materials or workmanship which become apparent during the period of one year from and after acceptance of the improvements by the City, then this obligation shall be null and void, otherwise, this obligation shall remain in full force and effect As a part of the obligation secured hereby and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorneys' fees incurred by City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered Surety shall provide City with thirty (30) days' written notice of Principal's default prior to Surety terminating, suspending or revoking the bond In witness whereof, this instrument has been duly executed by Principal's and Surety on , 20 Principal Surety By Attorney-in-Fact Address 15 City OF APACHE JUNV TICN PROJECT NO PW2010-22B CERTIFICATE OF INSURANCE The certifies that the following insurance policies have been issued on behalf of• NANE OF INSURED: ADDRESS OF INSURED: Type of Policy Effect. Expire Lariats of Insurance Nutter Date Date Ti, ab,1 i ty 1. Workman' s $100,000 Each Accident; Compensation $100,000 Each Disease, $500,000 Disease Policy Limit 2. Commercial $1,000,000 Each Occurrence, General $2,000,000 Products Liability /Completed Operations Aggregate; $2,000,000 General , Aggregate Limit 3 Contractual $1, 000, 000 Each Bodily Injury Occurrence & Property Damage 4 Professional $1, 000, 000 Each Claim Liability _ 5 Automobile $1, 000, 000 Each Bodily Injury Occurrence & Property Damage It is further agreed that these policies shall not expire, be canceled or changed until all work has been completed and the project has been accepted by the City. If a policy does expire during the life of the contract, a renewal Certificate of the required coverage must be sent to the City of Apache Junction not less than thirty (30) calendar days prior to expiration date This Certificate is not valid unless countersigned by an authorized representative of the Insurance Company The Certificate of Insurance must also provide that the City, its Mayor, Council, appointees, officers, employees and agents, are additional insured parties . Date: Countersigned by: Title: SUBSCRIBED AND SWORN TO before me this = day of ,2013 by as Insurer Notary Public My Commission Expires 16 ... - e_ City of Apache Junction Home of the Superstition Mountains Print TO: City Manager's Office FROM: Emile Schmid P.E.,Senior Project Engineer DATE: April 15, 2013 Agenda Type Work Session Agenda Council Priority Focus Area: Community Development TITLE OF AGENDA ITEM: PRESENTATION AND DISCUSSION ON PROPOSED RESOLUTION NO 13-01, DECLARING THAT PORTIONS OF PUBLIC ROADWAY EASEMENTS LOCATED ON MOCKINGBIRD STREET, GREASEWOOD STREET AND SIESTA STREET FROM MAIN DRIVE TO SAGUARO DRIVE, MAIN DRIVE FROM SIESTA STREET TO MOCKINGBIRD STREET, AND SAGUARO DRIVE FROM SIESTA STREET TO ROUNDUP STREET AS DESCRIBED IN EXTINGUISHMENT CASE 13-01 ARE NO LONGER NECESSARY FOR PUBLIC USE. ACTION REQUESTED: Presentation and Discussion DISCUSSION / BACKGROUND INFORMATION: Staff respectfully requests city council's consideration on the extinguishments of public roadway easements located on Mockingbird Street, Greasewood Street and Siesta Street from Main Drive to Saguaro Drive, Main Drive from Siesta Street to Mockingbird Street, and Saguaro Drive from Siesta Street to Roundup Street Staff has reviewed the submittal and has no technical objections since the use of the federal patent easements are not feasible or needed. The property owner, Stage Coach Trail LLC, desires the use of the 33 feet for site improvements FISCAL IMPACT. budgetary Approval Not Required OPTIONS/ALTERNATIVES: RECOMMENDATION: Presentation and discussion. ATTACHMENTS: Click to download D Memo to Council D Resolution No. 13-01 .4 j �u� Public Works Department z ary Home of the Superstition Mountains 44 ON. Date April 1, 2013 ,.k, To Honorable Mayor and Members of the City Council Through. George Hoffman, City Manager From Giao Pham P E , Public Works Director Subject Extinguishment of Federal Patent Easements on Mockingbird Street, Greasewood Street, and Siesta Street from Main Drive to Saguaro Drive, Main Drive from Siesta Street to Mockingbird Street, and Saguaro Drive from Siesta Street to Roundup Street Proposed Resolution No. 13-01. Federal Patent Easements (FPE's) are one means whereby property is accessed by our citizens in portions of Apache Junction FPE's were established as a means to provide public roadway access to Federal Patent parcels, and to mitigate the need of local government to acquire right-of-way to provide access to otherwise landlocked parcels FPE's are typically a total of 66 feet in width with 33 feet on each side of common parcel lines Mockingbird Street, Greasewood Street, and Siesta Street from Main Drive to Saguaro Drive and Saguaro Drive from Siesta Street to Roundup Street have never been opened for public use or maintained by the City The roads are classified as local roadways In addition, the FPE's do not provide access to any parcels which would be landlocked in the event of extinguishment Area transportation would not be adversely affected by an extinguishment of these portions of roadway easements. Stage Coach Trail LLC filed an application for the extinguishment of the above mentioned portions of roadway easements on January 17th, 2013 The property owner desires the use of the 33 feet for site improvements. 575 E Baseline Avenue, Apache Junction, AZ 85119 • Voice (480) 982-1055 • Fax (480) 982-8005 p RESOLUTION NO 13-01 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, DECLARING THAT PORTIONS OF PUBLIC ROADWAY EASEMENTS LOCATED ON MOCKINGBIRD STREET, GREASEWOOD STREET AND SIESTA STREET FROM MAIN DRIVE TO SAGUARO DRIVE, MAIN DRIVE FROM SIESTA STREET TO MOCKINGBIRD STREET, AND SAGUARO DRIVE FROM SIESTA STREET TO ROUNDUP STREET, AND DESCRIBED IN EXTINGUISHMENT CASE EX-13-01, ARE NO LONGER NECESSARY FOR PUBLIC USE AS PUBLIC ROADWAY EASEMENTS AND ARE HEREBY EXTINGUISHED AS PRESENT AND FUTURE PUBLIC RIGHT- OF-WAY. WHEREAS, the City of Apache Junction, upon incorporation, became the holder of roadway easements as described in Federal Patent Number 1187972, originally conveyed November 1958, Docket 227 Page 72, originally conveyed July 1958, and Docket 227 Page 70, originally conveyed May 1958, for public roadway purposes over certain parcels of real property and more particularly described in Exhibit A and depicted in Exhibit B; and WHEREAS, such easements may be extinguished by local municipal government pursuant to A R S § 9-500 . 24 and § 28- 7214; and WHEREAS, on January 17, 2013 the Applicant paid the required non-refundable application and filing fee for the extinguishment request pursuant to Apache Junction City Code § 13-2-4 (H) ; and WHEREAS, pursuant to Apache Junction City Code § 13-2-4, Aink the Director of Public Works on February 12, 2013, submitted copies of the application for comment to the Development Services Director, the Public Safety Director, the Apache Junction Fire District, as well as affected public utility providers; and WHEREAS, no opposition statements were received from Salt River Project, Arizona Water Company, Superstition Mountains Community Facilities District No. 1, Century Link, Southwest Gas, the Development Services Director, the Public Safety Director, and the Apache Junction Fire District, and WHEREAS, the extinguishment request, if approved, would not leave a parcel in separate ownership without access to an Resolution No. 13-01 Page 1 of 2 established public roadway or easement connecting such lands with another public roadway or easement; and WHEREAS, the City Engineer has determined that the easements in question, because of their location, topography, and encroachments, have no or de minimis public value. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA AS FOLLOWS : 1 . The Mayor and City Council of the City of Apache Junction find that the roadway easements described in Exhibit A, and depicted in Exhibit B, are classified as local streets on the Street Classification Plan and are no longer necessary for roadway purposes, have no or de minimis public value, and are hereby extinguished for public roadway right-of-way purposes 2 Nothing in this approval extinguishes any utility easement interest of any public utility agency or entity on the subject street right-of-way. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS DAY OF , 2013 . SIGNED AND ATTESTED TO THIS DAY OF , 2013 . JOHN S INSALACO Mayor ATTEST. KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM: RICHARD J STERN City Attorney Resolution No. 13-01 Page 2 of 2 STAGECOACH TRAILS LEGAL DESCRIPTION PARCEL NO. 1 : THE NORTH HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 18,TOWNSHIP 1 NORTH, RANGE 8 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY,ARIZONA EXCEPT THE WEST 33 FEET AND THE NORTH 33 FEET THEREOF AS CONVEYED TO THE CITY OF APACHE JUNCTION IN DOCKET 1165, PAGE 890. PARCEL NO. 2: THE SOUTH HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 18,TOWNSHIP 1 NORTH, RANGE 8 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY,ARIZONA, EXCEPT ALL COAL, OIL GAS AND OTHER MINERAL DEPOSITS,AS RESERVED TO THE UNITED STATES OF AMERICA, IN THE PATENT OF SAID LAND PARCEL NO. 3: THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 18,TOWNSHIP 1 NORTH, RANGE 8 EAST OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PINAL COUNTY,ARIZONA; EXCEPTING ALL COAL, OIL GAS AND OTHER MINERAL DEPOSITS AS RESERVED TO THE UNITED STATES OF AMERICA, IN THE PATENT OF SAID LAND ( 11114 cr� 4 O� 66Ba tip 9• � DURAN T THOMpSON -9,p/9daZ ' . c>ONAUsP'. EXP/RES 69/10/20 EXHIBIT "B" ROUNDUP STREET I I I I 022 I , I 1187972 LLJ 227-072 o OI 027 I 1 I I I GREASEWOOD STREET 227-072 227-070 030 O , I IZI I I � 227-070 2 - - - - I I I I 035 I I , -J SUPERSTITION BOULEVARD - - f[ 3 LEGEND - - - - - I - PROPOSED EXTINGUISHMENT 33' 33' FEDERAL PATENT EASEMENT DEDICATED RIGHT-OF-WAY TYPICAL FPE/ROW DIMENSION ROAD CENTERLINE (UNLESS OTHERWISE NOTED) PROPERTY LOTS 194-351 PATENT DEEDS RESOLUTION NO 13-01 z *PACH a xgke `r� .y�o C• ity of Apache Junction Home of the Supe?ctition Mountains 401z0NP' Print TO: City Manager's Office FROM: Heather Patel, Grants Coordinator DATE. April 15, 2013 Agenda Type : Work Session Agenda Council Priority Focus Area: TITLE OF AGENDA ITEM: DISCUSSION ON PROPOSED RESOLUTIONS NOS. 13-04, 13-05, 13-06, 13-07 AND 13-08, GRANT APPLICATIONS FOR THE GILA RIVER INDIAN COMMUNITY STATE SHARED REVENUE PROGRAM FOR FISCAL YEAR 2013-2014 ACTION REQUESTED Presentation and Discussion DISCUSSION / BACKGROUND INFORMATION: Voter approved Propostion 202 provided for Arizona tribes to set aside a percentage of gaming revenue for grant distribution to local governments The law also provides for local nonprofit groups to submit applications if they are sponsored by an appropriate municipality Four local nonprofits have submitted a request, staff also submitted a request FISCAL IMPACT: OPTIONS/ALTERNATIVES: RECOMMENDATION: ATTACHMENTS: Click to download Cover Memo D Attachments 1-5 D Resolution No 13-04 D Resolution No 13-05 LI Resolution No 13-06 D Resolution No 13-07 0 Resolution No 13-08 PROJECT SUMMARY Gila River Indian Community Grants Program Applicant: Charity Never Faileth Contact; Loretta Broughton, Executive Director, 797-0091 cnfserves@gmail.com Arminta Smith, Vice President, 438-0047 cnfserves@gmail.com Project: "YOUth are Special!" A. NARRATIVE 1 Purpose of Grant The project "YOUth are Special!" a newly established program developed by Charity Never Faileth (CNF), which is a 501c3 community based foundation. Our organization is located in Mesa Arizona at Signal Butte and Broadway. CNF is not a church organization, but we adhere to high moral values Our new program will be established and ready to serve the target groups in the community of Apache Junction. We are committed to the youth and their families within Apache Junction and maintain a strong partnership with this community. We are able to provide educational services to youths based on the funding provided by the contributions from our community. B Need: Our priority with our"YOUth are Special!" program is educating our youth within Apache Junction and assisting them in succeeding in life. Our target population is divided within two ranges. The first age group is 16-25 and the second is 8-15. In these age groups these youths are faced with ever-increasing situations that challenge their everyday life from peer pressure, gang affiliation, drug and alcohol abuse and neglect of all sorts. Many do not have an established system of support to handle these extreme challenges in their lives and thus become easy targets to perpetrators. The youth today are in much need of Personal Characteristics, Confidence, Self Worth, Support, Educational/Volunteer Opportunities, and wholesome safe Activities which will prepare them more as they make the changes into the adult and business world The program will also support free trips to educational locations and group activities with a safe environment GRIC Priority: 1. Education Page 1 of 4 .... YOUth are Special! Project Goals: 1) Provide hundreds of families and youth free of charge educational classes and opportunities to all within the target age groups and their parents in Apache Junction. 2) Twenty-four hour seven days a week free access on the Internet to the YOUth are Special! Web site for Apache Junction only that offers educational opportunities to assist in learning life skills and to following through and provide support in maintaining their goals. 3) At this website there will be a 24/7 mentoring program, entitled, "Mentor Dad". 4) Offer a variety of volunteer opportunities and classes within the Apache Junction Parks and Recreation programs for youth sports 5) Set up Syndication/Volunteer Opportunity Data Base within Apache Junction 6) Coordinating with the Apache Junction Public Library system in providing free education classes . 7) Special Events and activities with youths and will be set up to promote positive awareness of our Program. 8) This will be in calibration with the Woodsman Group, the Apache Junction Parks and Recreation, Boys and Girls Club, and Public Library,TCF Bank and other Professionals. 9) Help provide transportation for youths to our programs and will also include handicap accessible. Project Objectives. y. 1. CNF sets up measuring system for accountability in the first phase of the program and to also to be able to monitor the success rate of the program. 2. To provide a safe and positive environment for all youths and their families, this will include classes offered by the Public library and Parks and Recreations. 3. To support over 1,000 youths in Apache Junction within the first year of the program. Our long term funding will be supplemented with sponsorship from Apache Junction local businesses, donations from individuals, and fundraisings. The YOUth are Special program will provide a positive and safe educational system through education, counseling and volunteer opportunities to youths and their families and in turn it will have overall positive outcome for the Apache Junction community Page 2 of 4 Duration: November 1, 2013 - December 31, 2014 Project Budget: Youth Services & Education 65,450 Youth Education & Support Team 26,370 Transportation, Vehicle Operations, Maintenance 18,410 Legal Team 7599 Communications 3,470 Staff Wages &Volunteers 2,500 Total 123,799 Amount Requested: YOUth Services & Education 51,450 Youth Education & Support Team 13,449 Transportation,Vehicle Operations, Maintenance 7,500 Legal Team &Insurance 1,400 Total 73,799 The budget is based on• Transportation; 1) 3 drivers working 18o hours per year 2) operating of 5 vehicles for activity transportation 3) providing maintenance, gasoline, insurance, etc. The project budget is for the free educational and support program. This will be each week/month, on-going classes and including 24 hr online support benefitting Apache Junction, minimum of 1,000 youth and their parents. Insurance &Liability; City of Apache Junction to be named on policy. Projected Other Funders/Partners 50,000 Projected funding includes $loon Modern Woodman Group, $1000 TCF Bank, $10,000 From ADOT, $5,000 from Diamondbacks Grants, $33,000 other local businesses, partners and fundraising programs. Anticipated Outcomes: • Free support to over 2,000 youth • Free educational classes to over i,000 youth &parents • Free activities and trips throughout the year to variety of educational parks and activities Page 3 of 4 • Free online support to the Apache Junction youth helping them on their many issues, peers, pressures, choices and so forth • Syndication Volunteer Opportunity Program to all businesses and Apache Junction residents with largest database of opportunities TIMETABLE OF IMPLEMENTATION IMPLEMENTATON YEAR 1 OBJECTIVES FIRST SECOND THIRD FOURTH QUARTER QUARTER QUARTER QUARTER Inauguration of -- program Collaboration with -- Apache Junction's Public Library, City Parks & Recreations, Woodsman Group, Develop a -- partnership with the Boys and Girls Club in Apache Junction, TCF Bank&Anasazi, Network Together group, Kiwanis Implement 1st -- stage of online and class education Online -- Volunteering Opportunities Page 4 of 4 THERE IS ADDITIONAL INFORMATION ON THIS ITEM IN THE REGULAR MEETING SECTION UNDER ITEM '� PpAChE-a + ... • ' } 0• U10 o,f A,Apache junction 2 Home of the Superstition Mountains Print TO: City Manager's Office FROM: Spencer Paden, Library Director DATE: April 15, 2013 Agenda Type : Work Session Agenda Council Priority Focus Area. Additional Item Outside Scope of Identified Council Priorities TITLE OF AGENDA ITEM. PRESENTATION AND DISCUSSION ON PROPOSED RESOLUTION NO. 13-11, AUTHORIZING THE CITY OF APACHE JUNCTION TO ENTER INTO AN AGREEMENT WITH THE ARIZONA EARLY CHILDHOOD DEVELOPMENT AND HEALTH BOARD AND THE PINAL REGIONAL PARTNERSHIP COUNCIL FOR FISCAL YEARS 2013-2016 ACTION REQUESTED: Presentation and Discussion DISCUSSION/ BACKGROUND INFORMATION: The Apache Junction Public Library was offered grant funds to continue the early childhood development program called the Fun Van through the Arizona Early Childhood Development and Health Board (also known as First Things First) and in collaboration with the Pinal Regional Partnership Council This grant will allow the city to expend up to $330,000 per year, renewed annually for a potential total of three years for personnel, vehicle costs, equipment, phones, Internet, books, laptops, incentives, training, program supplies, office supplies and materials, advertising and marketing activities. FISCAL IMPACT: Budgeted Expenditure JPTIONS/ALTERNATIVES: RECOMMENDATION: ATTACHMENTS: Click to download D FTF Grant Agreement ❑ Memo to City Council ❑ Resolution No. 13 11 THERE IS ADDITIONAL INFORMATION ON THIS ITEM IN THE REGULAR MEETING SECTION UNDER ITEM A�RCIi J Cif of Apache Junction to z Home of`the Superstitpon Mountains '1QrzoNo' Print TO: City Manager's Office FROM: Bryant Powell, Assistant City Manager DATE: April 15, 2013 Agenda Type : Work Session Agenda Council Priority Focus Area. Community Development TITLE OF AGENDA ITEM. PRESENTATION AND DISCUSSION ON 247 E JUNCTION STREET DEMOLITION AGREEMENT ACTION REQUESTED: Presentation and Discussion DISCUSSION / BACKGROUND INFORMATION The property at 247 E. Junction Street is in the Crossroads Redevelopment Area. This property was previously occupied as a single family residence Since approximately 2006, the property has been vacant and the general condition of the structure has deteriorated and become in disrepair The foreclosed property has recently been assigned to a receiver. The city and owner have determined it is in the best interest of both parties to demolish and remove the single family residence structure FISCAL IMPACT: 4 3PTIONS/ALTERNATIVES: RECOMMENDATION: ATTACHMENTS: Click to download L Staff Memo ❑ Demolition Agreement 1.1 DATE April 3, 2013 MEMORANDUM TO The Honorable Mayor and City Councilmembers MEMORANDUM THROUGH George Hoffman, City Manager MEMORANDUM FROM. Bryant Powell, Assistant City Manager SUBJECT Demolition Agreement — 247 E Junction Street The property at 247 E Junction Street is in the Crossroads Redevelopment Area This property was previously occupied as a single family residence Since approximately 2006, the property has been vacant and the general condition of the structure has deteriorated and become in disrepair. The foreclosed property has recently been assigned to a receiver The City and owner have determined it is in the best interest of both parties to demolish and remove the single family residence structure Per the proposed agreement, the owner would conduct an asbestos survey of the property If after reviewing the subsequent asbestos report and determining there is no presence of asbestos, the City could utilize the structure for AJPD SWAT training purposes Subsequently, the City would be responsible for the clean-up and debris removal It is anticipated the cost for structure removal would be between $12,000 - $15,000. Staff feels entering into this agreement will enhance the development potential of the property, as well as adjacent properties, and such improvements would allow for elimination of blight and would reduce the City's code enforcement and police contacts and heighten the community's general welfare and safety The value to the City of the permitted AJPD use of the property is not grossly disproportionate to the value of the property to the owner DRAFT 3 13 13 When recorded return to: Richard Joel Stern, Esq Apache Junction City Attorney 300 East Superstition Blvd Apache Junction, AZ 85119 RELEASE, MUTUAL INDEMNIFICATION, AND AUTHORIZATION AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND AJ TOWN CENTRE LIQUIDATION TRUST FOR DEMOLITION OF SINGLE FAMILY RESIDENCE AT 247 E JUNCTION STREET, APACHE JUNCTION, ARIZONA PARCEL NO 101-21-061080610 LEGAL DESCRIPTION• The West half of the Northeast quarter of the Northwest quarter of the Southwest quarter of Section 21, Township 1 North, Range 8 East of the Gila and Salt River Base and Meridian, Pinal County,Arizona. PHYSICAL ADDRESS: 247 E JUNCTION STREET, APACHE JUNCTION, AZ 85119 RELEASE, MUTUAL INDEMNIFICATION,AND AUTHORIZATION AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND AJ TOWN CENTRE LIQUIDATION TRUST FOR DEMOLITION OF SINGLE FAMILY RESIDENCE AT 247 E. JUNCTION STREET,APACHE JUNCTION,ARIZONA This Agreement is entered into as of , 2013, by and between CITY OF APACHE JUNCTION, an Arizona municipal corporation (hereinafter the "City") and AJ TOWN CENTRE LIQUIDATION TRUST, dated October 1, 2012 (hereinafter the "Owner"), both collectively referred to herein as the "Parties". RECITALS A. Owner is the current owner of one or more parcel(s) of land in City's infill incentive and downtown redevelopment areas which purportedly have been the subject of trespassing, vagrancy, and property maintenance calls to City, including the property located at 247 E Junction Street, Apache Junction, Arizona 85119 (the "Property"), more fully described and depicted in Exhibits A and B B Since approximately June 22, 2006, after the residents vacated the Property and it came under the control of Al Town Centre, LLC, an Arizona limited liability company ("AJ Town Centre"), Owner's predecessor-in-interest, the general condition of the building has deteriorated and become in disrepair. C- On or about May 25, 2010, Ai Town Centrc or its agent verbally consented to allow the City's police department ("AJ-P-D") to use the Property (including the structure located thereon) for a SWAT T am exercise, which included the use of explosives The exercise was intended to allow officers to become accustomed to blast waves, blast pressure and the sight and sound of explosive breaching. Damage to the structure allegedly occurred, but the Parties are not aware of any environmental issues that may have resulted pursuant to said exercise D--C On or about June 2, 2010, AJ Town Centre and one or more affiliated entities filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for the District of Arizona (the "Bankruptcy Court"). 1 The Chapter 11 cases are being jointly administered under Case No 2:10-bk-17310-GBN (the "Chapter 11 Case") Centre that the City believed there were serious structural integrity issues associated with the structure on the Property, and advised Al Town Centre that it was the City's intent to declare the building a dangerous structure under the 1997 Uniform Code for the Abatement of Dangerous Buildings. 1 AJ Town Centre's bankruptcy case number is 2 10-bk-17314-CGC 4 Asir /ink F In July 2011, the Apache Junction Fire Distract informed City-officials it classified the Property as a "hazard". F—D Wells Fargo Bank, NA ("Lender") has a secured interest in the Property and, pursuant to such interest, secured the appointment of Robert Burnand of Colliers International to act as receiver ("Receiver") to administer the Property in Pinal County Superior Court, CV2010-02057 #--E On or about September 20, 2011, Lender filed in the Chapter 11 Case its Joint Plan for Debtors Dated as of September 20, 2011 (the "Plan"), as modified and amended from time to time. The Bankruptcy Court entered its Order confirming the Plan on September 28, 2012 (the "Confirmation Order"). The Receiver has been approved and authorized to act by the Bankruptcy Court. 4—F On or about October 1, 2012, Receiver, as trustee, Lender, as beneficiary, and AJ Town Centre (amongst other debtors), as debtors, executed a trust agreement (the "Trust Agreement") for the creation of the Owner trust, which is a liquidation trust intended to receive, hold, manage, invest and/or liquidate certain assets of the debtors in the Chapter 11 case (the "Trust Assets") consistent with the Plan and the Confirmation Order. J—G Pursuant to the Trust Agreement, the Property was conveyed to the Trust and is now one of the Trust Assets subject to management and/or liquidation pursuant to and in accordance with the Trust Agreement, Plan and Confirmation Order 44--H City and Owner have determined it is in the best interests of the Parties to demolish and remove the single family residential structure and debris that now exist on the Property on the Property. and to fill in or drain and securely cover the empty swimming 000l the Property Prior to such demob inn the Citv's police department f"AJPD"i beeves that it would be beneficial to the AJPD Swat Team to use the structure .n th- Property, before it is demolished. for training exercises which may or may not include thereof explosives (the "Training Activities"). The City Council finds, by approval of this Agreement, that such removal Asi, 21-14-4—el.e-a-R-4p—ef—th-e—Rr-e-p-erty—vs�f he d-teriorated structu - on th2 Property and t e opportunity for the AJPD to conduct the Training Activities are an important public purpose. i=---I The City Council further finds entering into this Agreement will enhance the development potential of the Property, as well as adjacent properties, and such improvements would allow for elimination of blight and would reduce City's code enforcement and police contacts and heighten the community's general welfare and safety. The value to the City of the permitted AJPD use of the Property (and the releases and indemnities provided for in this Agreement)—nd the s+ ^f the -,lie ed d2 t^ the str ct ed by the City, is not grossly disproportionate to the value of the propertyEroperty to the Owner of the City's undertakings under this Agreement AGREEMENT NOW THEREFORE, in consideration of the foregoing recitals, the terms, covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows 1 Accuracy of the Recitals: The Parties hereby acknowledge the accuracy of the Recitals set forth above, which are incorporated herein by this reference and the Exhibits to this Agreement are further incorporated herein by reference 2 Term: This Agreement shall commence on the date it is approved and duly executed by all of the Parties (the "Effective Date") and shall, except as otherwise provided herein, continue until all obligations of the City have been fully performed by the City and approved by Owner. 3 Owner's Obligations: Owner agrees a) To authorize, conduct and pay for an asbestos evaluation report of the single family residence and other structures at 2'17 E.Junction Street, Apache Junction, AZ. b) the Property (the "Asbestos Report"). If, after reviewing the Asbestos Report, the City determines that there is no presence of asbestos basedin Qr a.ound the structQr- on the (valuatlonProperty, the To authorize City and its officers and agents—te may enter onto the Property for SWAT Team exercisesTraining Activities, and shall thereafter to demolish and remove any structures located thereon, inclusive of the foundation, but excluding any pool any fencing or other security devices.. Owner and the City agree that the empty swimming pool on the Property shall upon mutual agreement of the Parties, either be filled in with fill dirt, or completely drained and securely covered, by the City and at the sole cost and expense of the City. bj e)-That no salvage may be requested nor will any be initiated, upon commencement of demolition and removal .•. cj e-)-That it will not initiate or cause to be initiated against City, or any of its current, past, or future agents, servants, employees, elected officials, appointed representatives, attorneys, fiduciaries, subsidiaries, divisions, successors, assigns, or any person or entity acting by, through, under or in concert in both their personal and corporate capacities, any claim, lawsuit, action, appeal, investigation, or proceeding of any kind pertaining to the City's use of the Property, including but not limited to City's May 25, 2010 SWAT T am exercise c) e-)-Except as otherwise provided herein, to forever waive and release the City, its Mayor and Council, appointed boards and commissions, officials, employees and agents, individually and in their governmental capacity for, from and against any and all losses, claims, suits, actions, payments and judgments, demands, expenses, attorney fees, defense costs or other actions of any kind and nature resulting from the Training Activities and the Demolition Activities (as defined below) and from the City's prior use end/or operations on the Property prior to the date of this Agreement including but not limited to City's May 25, 2010 SWAT Team exercise 4. City's Obligations City agrees: a-} If the asbestos evaluation provides adequate proof there is no asbestos present in any of the structures located on the property, the City and its agents may proceed with SWAT exercises, shall demolish all structures located on the property including the foundation, and shall remove resulting debris from the premises, all at its sole cost. If the asbestos evaluation shows a presence of asbestos in any of the structures located on the property, the City will not conduct SWAT exercises and will not conduct demolition work and in such case the agreement will be completed es place, shall be completed by October 31, 2013, to (i) properly demolish, clear and remove andJL after reviewing the Asbestos Re o�rt, the City determines that the Asbestos Report provides adequate proof there is no asbestos present in ansof tbP_ trig-ts re I.r.atesi on the Property the City and its agents may proceed with SWAT Training Activities at the Property and thereafter shall demolish all structures located on the Property including_ the foundation, and such work shall include clearing and removing any and all buildings or structures now situated on the Property including, but not limited to, any slab foundation related thereto and any fixtures, equipment, pipes, other materials and debris on the Property, but excluding any pool, (ii) demolish, remove and clear any fencing that now exists on or around the Property, and (ii►). The,City and its agents shall also properly disconnect, cut off, cap and mark any plumbing or electrical stubs or similar utility improvements on the Property (all of the foregoing activities are referred to, collectively, as the "Demolition Activities"), all of which shall be completed at the City's cost and expense If, however, the City determines that the Asbestos Report shows a presence of asbestos in any he structures located on the Property, the City will not conduct SWAT Training Activities at the Property, and will not be obligated to conduct or complete any of the Demolition Activities, and in such case, this Agreement will be completed. b) If the City elects to move forward with the Training Activities and the Demolition Activities, the Parties agree that the Demolition Activities shall be completed by October 31, 2013. If the City undertakes and completes the Training Activities and the Demolition Activities on the Property, the Parties agree that the City shall also be required, at its sole cost and expense, and upon mutual agreement of the Parties. to either (►) fill in the empty swimming pool on the Property with fill dirt. or (ii) completely drain and securely cover the empty pool, to prevent the empty pool from becoming a safety hazard. c) To comply with any and all applicable federal and state laws which might in any way relate to such Training Activities and Demolition Activities on the Property including, but not limited to, any Environmental Laws For purposes of this Agreement, p ,.. the term "Environmental Laws" shall mean as amended and in effect from time to time, any federal, state or local statute, ordinance, rule, regulation, standard, restriction, judicial decision, or the judgment or decree of a governmental authority with jurisdiction over the Owner and/or the Property, pertaining to the health, welfare, industrial hygiene, occupational safety or the environment including, but not limited to any laws, statutes, rules, regulations and/or ordinances in any way concerning or governing the presence or handling of any Hazardous Substances on or around the Property For purposes of this Agreement, the term "Hazardous Substances" shall mean (a) those substances included within any of the definitions of "hazardous substances," "hazardous materials," "toxic substances," or "solid waste" in CERCLA, RCRA, or the Hazardous Materials Transportation Act, 49 U S C Section 1801, et seq , and in the regulations promulgated pursuant thereto; (b) those substances listed in the United States Department of Transportation Hazardous Materials Table at 49 CFR 172.101 and amendments thereto, or by the U S Environmental Protection Agency as hazardous substances in 40 CFR Part 302 and amendments thereto, and (c) all other substances, materials and wastes that are, or that become, regulated under, or that are classified as hazardous or toxic under, any Environmental Law. d) To defend, indemnify and hold harmless Owner for, from and against any and all direct and indirect, known and unknown, obligations, actions, liabilities, judgments, claims, demands, losses, damages and costs, including costs of defense, expenses and fees (including reasonable attorneys' fees and costs) arising from or relating to any claims, actions, demands, judgments and/or orders asserted by any third-parties including, but not limited to, (i) anv individuals or agents arti ipating in the jrainine_ Activities; (ii) any individuals or agents performing work on behalf of the City, or in any way involved with the City's completion of the Demolition Activities on the Property, and/or (4-fm) any federal or state governing authorities with jurisdiction over the Property and/or Owner, whether arising directly or indirectly from, or in any way related to or otherwise concerning the City's Training Activities and Demolition ,,^ Activities on the Property The provisions of this Section shall survive the completion of such activities and shall continue in full force and effect for a period of five (5) years or the date on which the Owner trust is terminated in accordance with the Plan and Confirmation Order, whichever occurs later. 5 Owner's Representations, Indemnity Obligations: Owner acknowledges that City is expending public funds to demolish the structure located on the Property in reliance of this Agreement and to discharge and release all claims Owner may have against the City- - connection with the City's prior use of the Property and/or the structure situated thereon. Owner represents that Owner's representations are true in all material respects as of the date of this Agreement. The transactions contemplated by this Agreement, the execution of this Agreement and Owner's performance hereunder have been duly authorized by all requisite action of Owner or its agents and no other approval or consent is required for this Agreement to be binding upon Owner. As of the date of this Agreement, and other than the Chapter 11 Case pending before the Bankruptcy Court and the Superior Court case in which the Receiver A.. was appointed, Owner knows of no other litigation, proceeding or investigation pending or threatened against or affecting Owner, which could have a material adverse affect on Owner's performance under this Agreement that has not otherwise been disclosed in writing to City. Owner agrees to indemnify, defend and hold harmless the City, its Mayor and Council, appointed boards and commissions, officials, employees and agents, individually and in their governmental capacity for, from and against any and all losses, liability, damages, payments, expenses, costs including reasonable attorneys' fees, defense costs or judgments resulting from anyactions, claims, suits or judgments asserted against the Citybyanythird-party J g g p Y alleging, claiming and/or otherwise seeking recovery of alleged losses or damages arising from or related to the City's completion of the Demolition Activities, but only to the extent it is determined that (a) such third-party claimants had an undisclosed interest in the Property as of the date of this Agreement, and (b) Owner did not have the required consent and approval from such third-party claimants to enter into this Agreement with the City Owner shall not, under any circumstances, be obligated to indemnify the City for any losses, liability, damages, payments, expenses, costs, attorneys' fees, defense costs or judgments resulting from any actions, claims, suits or judgments asserted against the City by any third-party or any agent or employee of the City for any claims or under any theory that are in any way related to this agreement or the City's performance under this agreement including, but not limited to, the planning and performance of the demolition activitiesTraining Activities and/or the Demolition Activities. 6. City Representations: City represents and warrants to Owner that (a) the Property is located within the municipal limits of City, (b) the City is a duly organized, validly existing municipal corporation in the State of Arizona, (c) the City has all requisite authority to enter into this Agreement and to perform under the terms,, covenants and conditions set forth herein, and (d) the individuals executing this Agreement on behalf of the City have all necessary authority and permission to enter into this Agreement on behalf of the City. 7 Notices and Filings (a) Manner of Serving All notices, filings, consents, approvals and other communications provided for herein or given in connection herewith shall be validly given, filed, made, delivered or served if in writing and delivered personally or sent by express or overnight mail or by registered or certified first class United States Mail, postage prepaid, as follows If to City, to: City Manager 300 E Superstition Blvd. Apache Junction, Arizona 85119 And to City Attorney 300 E Superstition Blvd Apache Junction, Arizona, 85119 I -� If to Owner, to AJ Town Centre Liquidation Trust Attn: Robert Burnand 2390 East Camelback Road, Suite 100 Phoenix, Arizona 85016 And to. W. Scott Jenkins,Jr. Ryley Carlock&Applewhite One N. Central Avenue, Suite 1200 Phoenix, Arizona 85004 The Parties may from time to time designate in writing and deliver in a like manner any other such address which they deem necessary without modifying this Agreement 8. Delivered Status Notices, filings, consents, approvals and communication given by mail shall be deemed delivered upon receipt or refusal 9. General Provisions: (a) Waiver. No delay in exercising any right or remedy shall constitute a waiver thereof, and no wavier by City or Owner of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement (b) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signature of all parties may be physically attached to a single document (c) Headings The descriptive headings of the paragraphs of this Agreement are .�. inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. (d) Exhibits. Any exhibit attached hereto shall be deemed to have been incorporated herein by this reference with the same force and effect as if fully set forth in the body hereof. (e) Further Acts. Each of the parties hereto shall execute and deliver all such documents and perform all such acts as reasonably necessary, from time to time, to carry out the matters contemplated by this Agreement (f) Time of the Essence and Successors/Assignment and Transfer -g ilmik. Ink (i) Time is of the essence in this Agreement. All of the provisions hereof shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereof (ii) Neither party may assign any of its rights or obligations hereunder, except as mutually agreed upon in writing by Owner and City, and subject to the consent and acknowledgement by Lender and Receiver (g) No Partnership and Third Parties It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, joint venture or other similar arrangement between Owner and City Except as provided in the release and indemnity provisions hereof, no term or provision of this Agreement is intended to, or shall, be for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. (h) Assignments/Transfers. The Parties' rights and obligations under this Agreement shall be non-assignable and non-transferable, without the prior express written consent of the other party, which consent may be given or withheld in reasonable discretion. (I) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof All prior and contemporaneous agreements, representations and understandings of the Parties, oral or written, are hereby superseded and merged herein (j) Amendment No change or additions to be made to this Agreement except by a written amendment executed by the Parties. (k) Unexcused Delays. Neither City nor Owner, as the case may be, shall be considered not to have performed its obligations under this Agreement in the event of enforced delay (an "Enforced Delay") due to causes beyond its control and without its fault or negligence or failure to comply with Applicable Laws, including, but not restricted to, acts of God, fires, floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subconsultants or materialmen due to such causes, acts of a public enemy, war, terrorism or act of terror (including but not limited to bio-terrorism or eco-terrorism), nuclear radiation, blockade, insurrection, riot, labor strike or interruption, extortion, sabotage, or similar occurrence or any exercise of the power of eminent domain of any governmental body on behalf of any public entity, or a declaration of moratorium or similar hiatus (whether permanent or temporary) by any public entity directly affecting the Project. Owner agrees that Owner alone will bear all risks of delay which are not Enforced Delay In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay; provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) calendar days after such Party knows or should know of any such Enforced Delay, first notify the other Party of the specific delay in writing and claim the -9- ... right to an extension for the period of the Enforced Delay, and provided further that in no event shall a period of Enforced Delay exceed ninety (90) calendar days (I) Governing Law and Venue. The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona without reference to conflicts of laws principles Any action at law or in equity brought by either party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a .. court of competent jurisdiction in Pinal County, State of Arizona The Parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county In the event either party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, or to declare the rights of the parties hereunder, it is mutually agreed that the prevailing party in such action shall recover all costs including all litigation and appeal expenses, collection expenses, reasonable attorneys' fees, necessary witness fees and court costs to be determined by the court in such action (m) Severability City and Owner each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or City Code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date) provide essentially the same rights and benefits (economic and otherwise) to the Parties as if such severance and reformation were not required. Unless prohibited by applicable laws, the Parties further shall perform all acts and execute, acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed (n) Conflict of Interest Pursuant to A R.S. § 38-511, incorporated herein by reference, the Parties understand and agree that this Agreement is subject to cancellation by City or its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf of City, or its departments or agency, is at any time, while the Agreement or any extension or modification thereof, is in effect, an employee or agent of any other party to the Agreement with respect to the subject matter of the Agreement (o) Diminution in Value Waiver. Owner agrees, understands and acknowledges that City is entering into this Agreement in good faith and at the specific request of Owner, and further with the understanding that, if City acts consistently with the terms and conditions herein, it will not be subject to a claim for diminished value of the Property from Owner. Owner, on behalf of it and its successors and assigns, intends to encumber the Property with the following agreements and waivers. Owner agrees and consents to all the conditions 1 4-8 imposed by this Agreement, the zoning, the General Plan, applicable laws, and all permits and approvals issued or granted by City in furtherance thereof, and by signing this Agreement waives any and all claims, suits, damages, compensation and causes of action Owner may have now or in the future under the provisions of A.R S §§ 12-1134 through and including 12-1136 (but specifically excluding any provisions included therein relating to eminent domain) and resulting from the development of the Property consistent with this Agreement, the zoning, the General Plan, applicable laws, and all permits and approvals issued or granted by City in furtherance thereof or from any "land use law" (as such term is defined in the aforementioned statute sections) permitted by this Agreement to be enacted, adopted or applied by City now or hereafter Owner acknowledges and agrees to the terms and conditions set forth in this Agreement, the zoning, the General Plan, applicable laws, and all permits and approvals issued or granted by City in furtherance thereof cause the fair market value of the Property to equal or exceed the fair market value of the Property in the absence of this Agreement, the zoning the General Plan, applicable laws, and all permits and approvals issued or granted by City in furtherance thereof, and such "land use laws." (p) Bar Owner understands and acknowledges that the release and covenant not to sue set forth in this Agreement forever bars it from suing or otherwise asserting a claim against City or other released parties on the basis of any event occurring on or before the effective date of this Agreement, whether the facts are now known or unknown, and whether the legal theory upon which such claim might be based is now known or unknown Except as expressly provided herein to the contrary, Owner agrees that this Agreement may be pleaded as a complete bar to any action or suit brought against the City with respect to any claim under federal, state, administrative or other law including, but not limited to, any claim relating to removal of the structure from the Property or any other matter referred to in Section 3(b) of this Agreement IN WITNESS WHEREOF, the undersigned Parties, with all requisite authority, have hereunto set our hands and seals on the date and year first above written [SIGNATURES OF THE PARTIES ON THE FOLLOWING PAGES] 44 ....... ,.... OWNER'S SIGNATURE PAGE TO THE RELEASE, MUTUAL INDEMNIFICATION AND AUTHORIZATION AGREEMENT FOR DEMOLITION OF 247 E.JUNCTION STREET OWNER: Al TOWN CENTRE LIQUIDATION TRUST, dated October 1, 2012 .•� By. Name. Robert Burnand Its Trustee STATE OF ARIZONA ) ) ss. County of ) The foregoing was acknowledged before me this day of , 2013, by Robert Burnand, in his capacity as Trustee of the Al Town Centre Liquidation Trust, dated October 1, 2012, on behalf of the Trust. Notary Public My Commission Expires: (seal) CITY'S SIGNATURE PAGE TO THE RELEASE, MUTUAL INDEMNIFICATION AND AUTHORIZATION AGREEMENT FOR DEMOLITION OF 247 E.JUNCTION STREET CITY: CITY OF APACHE JUNCTION, an Arizona municipal corporation By:John S Insalaco Its Mayor ATTEST: Kathleen Connelly, City Clerk APPROVED AS TO FORM Richard J Stern, City Attorney STATE OF ARIZONA ) ss COUNTY OF ) The foregoing was acknowledged before me this day of , a 2013, by John S. Insalaco, the Mayor of City of Apache Junction, Arizona, an Arizona municipal corporation, who acknowledged that he signed the foregoing instrument on behalf of City. Notary Public My Commission Expires• (seal) 13 EXHIBIT A LEGAL DESCRIPTION The West half of the Northeast quarter of the Northwest quarter of the Southwest quarter of Section 21, Township 1 North, Range 8 East of the Gila and Salt River Base and Meridian, Pinal County, Arizona EXHIBIT B AERIAL LOCATION EXHIBIT M y a • • • • �y s Document comparison by Workshare Compare on Friday, March 29, 2013 11 5818AM Input: Document 1 ID interwovenSite //PHXIM01/WorkSite/3209832/1 Description #3209832v1<WorkSite> - 247 E. Junction Street Demolition Agreement Document 2 ID interwovenSite //PHXIM01/WorkSite/3209832/2 Description #3209832v2<WorkSite> - 247 E. Junction Street Demolition Agreement Rendering set Standard Legend: Insertion Deletion Moved-fmm- Vloved to Style change Format change Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 40 Deletions 53 Moved from 8 Moved to 8 Style change 0 Format changed 0 Total changes 109