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HomeMy WebLinkAboutRES 15-32RESOLUTION NO. 15-32 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 INTERGOVERNMENTAL AGREEMENT FOR THE USE OF CITY FUELING FACILITIES WITH SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1. WHEREAS,the City and Superstition Mountains Community Facilities District ("SMCFD")desires to enter into an Intergovernmental Agreement for the use of City -provided fueling facilities at 575 East Baseline Avenue that would result in public savings and emergency preparedness for both entities; and WHEREAS,pursuant to A.R.S.§11-952(A),public entities may enter into intergovernmental agreements with other municipalities and governmental entities for joint or cooperative activities; and WHEREAS,the Parties have crafted the attached written agreement in the form of an intergovernmental agreement which formalizes the arrangement. 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 form of the Intergovernmental Agreement for the use of city fueling facilities set forth in Attachment A;and the Mayor is hereby authorized to sign the agreement on behalf of the City. 2)The City Manager and/or his designee is authorized and directed to take all steps necessary to carry out the purpose and intent of this resolution and to fulfill all the duties required under the agreement. RESOLUTION NO. 15-32 PAGE 1 OF 2 PASSED AND ADOPTED BY THE APACHE JUNCTION, ARIZONA, SIGNED AND ATTESTED TO TH ATTEST: KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM: /c /4•1 RICHARD J. STERN City Attorney RESOLUTION NO. 15-32 PAGE 2 OF 2 MAYOR AND CITYCOUNCIL OF THE CITY OF THIS 0WIFDAY OF &fiv.4.0(..,2015. IS 04u DAY OF Al;12761K 2015. N S. I SALACO ayor Attachment A FUELING FACILITIES INTERGOVERNMENTAL AGREEMENT BETWEEN CITY OF APACHE JUNCTION AND SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 THIS AGREEMENT is made and entered into this day of , 2015, by and between CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation ("City")and SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 ("SMCFD"), a municipal corporation and political subdivision of the State of Arizona both collectively referred to as the "Parties," or individually as a "Party." RECITALS A.The City and SMCFD desire to enter into an Intergovernmental Agreement for the use of City -owned fueling facilities at 575 East Baseline Avenue, Apache Junction, Arizona. B.City has the desire and the ability to assist SMCFD. C.Mutual cooperation on governmental services,materials and equipment would result in public savings and emergency preparedness for both entities. D.SMCFD is authorized to contract with cities and towns and to enter into an agreement with the City for the use of City -owned fueling facilities pursuant to A.R.S. §§ 48-709.A.2. and 11-951 et seq. E.The Parties have mutual interests in this public partnership and wish to enter into this Agreement with certain terms and conditions, set forth below. 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 acknowledge the Recitals set forth above and incorporate them herein by reference. 2.PURPOSE:The purpose of this Agreement is to extend use of City services, materials and equipment to save on public costs and reap emergency preparedness benefits for the Apache Junction community and the public in general. 3.CITY AND SMCFD SERVICES: A.FUELING FACILITIES i.SMCFD's Obligations: a.By fax, email or mail, furnish City with current SMCFD vehicle unit numbers or license numbers (numeric),SMCFD vehicle descriptions, and personnel identification information (i.e. SMCFD employee ID number)that will be authorized by SMCFD to access City fueling facilities located at City's Public Works Yard, 575 East Baseline Road, Apache Junction, Arizona, or at any other location where the City moves its fueling facilities any time during the Term of this Agreement. b.Pay City for the amount of gasoline and diesel consumed by SMCFD at a rate of ten (100) cents per gallon over the City's actual delivered cost for said fuels.All fuel prices increase or decrease in direct relation with the published Oil Price Information Service ("OPIS") average rack price for Phoenix. Payment shall be made within thirty (30) calendar days of receipt of City invoice. c.Pay City the cost of any damages to the fueling facilities, intentionally or negligently, caused by SMCFD, its officers, employees or agents. d.Pay City the cost of any gasoline clean up intentionally or negligently caused by SMCFD, its officers, employees or agents. e.Take such steps as may be necessary to prevent unauthorized use of personal identification numbers and facility access information provided to SMCFD pursuant to this Agreement. ii.City's Obligations: a.Furnish SMCFD with PIN number or password information for use by SMCFD personnel at the automated fueling island. b.Provide SMCFD with a monthly statement showing a cost breakdown by vehicle of the quantity of fuel disbursed. c.Provide SMCFD with combination number for combination lock to access fuel station gate for after -hour use. d.Provide access to unleaded gasoline, E-85 and diesel fuel twenty-four (24) hours per day. 2 4.FUEL SUPPLY AND USE ACCESS:In the event of emergency, the City, at its sole discretion, may direct that access to its fuel supplies and facilities be temporarily limited or discontinued. SMCFD is not obligated to obtain any specified amount of fuel from the City and may, at its sole discretion, obtain fuel from other parties at any time. 5.INDEMNIFICATION AND INSURANCE:To the extent permitted by law,each Party covenants and agrees to fully indemnify,defend and hold harmless the other Party, its special districts, elected and appointed officers, employees, and agents from and against any and all suits, actions, legal or administrative proceedings, claims, demands or damages of any kind or nature relating to this Agreement, including attorney and expert witness fees, which, are the result of any act or omission of the Party,its officers, employees, contractees, agents, and anyone acting under its direction or control, whether intentional or negligent, in connection with or incident to this Agreement.If any action or claim shall be brought or asserted against either Party or its directors, officers, agents, servants or employees for which indemnity may be sought from the other Party, the Parties shall promptly notify one another in writing.The noticed Party shall, within ten (10) working days of receiving such notice, assume the defense thereof, and the payment of all expenses, including any attorney fees and all court costs which shall be paid as incurred.It is understood and agreed that both Parties 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.This section shall survive the expiration or early termination of this Agreement.The Parties shall provide certificates of insurance to each other no later than 30 days after execution of this Agreement. that: 6.CITY REPRESENTATIONS:City represents and warrants to SMCFD A.City's execution and approval of this Agreement have been made in compliance with the procedural requirements of the Apache Junction City Code. B.City will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement and evidence this Agreement. C.As of the date of this Agreement, City knows of no litigation, proceeding, initiative, referendum, or investigation contesting the powers of City or its officials, with respect to this Agreement, that has not been disclosed in writing to SMCFD. D.The execution, delivery and performance of this Agreement by City is not prohibited by,and does not conflict with,any other 3 agreements, instruments or judgments or decrees to which City is a party or is otherwise subject. E.The City has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 7.SMCFD REPRESENTATIONS:SMCFD represents and warrants to City that: A.SMCFD has the full right, power and authorization to enter into and perform this Agreement and the obligations and undertakings of SMCFD under this Agreement,and the execution,delivery and performance of this Agreement by SMCFD has been duly authorized and agreed to in compliance with the organizational documents of SMCFD. B.All consents and approvals necessary to the execution, delivery and performance of this Agreement have been obtained, and no further action needs to be taken in connection with such execution, delivery and performance. C.SMCFD will execute and acknowledge when appropriate all documents and instruments and take all actions necessary to implement, evidence and enforce this Agreement. D.SMCFD has been assisted by counsel of its own choosing in connection with the preparation and execution of this Agreement. 8.DURATION OF AGREEMENT/TERMINATION:This Agreement shall be valid for a term of ten (10) years and shall automatically be renewed every year thereafter.However, either party may terminate this Agreement for any reason upon sixty (60)calendar days'written notice to the other party addressed to the other party as set forth in this Agreement. 9.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,by electronic mail,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,electronic mail, or telefacsimile machine, or by any nationally recognized express or overnight delivery service (e.g.Federal Express or UPS), delivery charges prepaid: 4 If to City: And to: If to SMCFD: Bryant Powell City Manager City of Apache Junction 300 E. Superstition Blvd. Apache Junction, AZ 85219 Email: bpowell@ajcity.net Giao Pham Public Works Director City of Apache Junction 575 E. Baseline Ave. Apache Junction, AZ 85219 Email: gpham@ajcity.net Richard J. Stern City Attorney City of Apache Junction 300 E. Superstition Blvd. Apache Junction, AZ 85219 Email: jstern@ajcity.net Daron Anglin District Manager Superstition Mountains Community Facilities District No. 1 5661 South Ironwood Drive Apache Junction, AZ 85220 Email: danglin@smcfd.org 10.SEVERABILITY:City and SMCFD 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. 5 II.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 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 reasonable attorneys fees to be determined by the court in such action. 12.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 assigns 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 party and shall further agree to be bound by and to fully perform the terms of this Agreement. 13.ENTIRE AGREEMENT:This Agreement and any attachments represent the entire agreement between the Parties and supersede all prior negotiations, representations or agreements, either express or implied, written or oral.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.Written and signed amendments shall automatically become part of the Supporting Documents, and shall supersede any inconsistent provision therein;provided,however,that any apparent inconsistency shall be resolved,if possible, by construing the provisions as mutually complementary and supplementary. 14.CONFLICTS OF INTEREST:This Agreement is subject to, and may be terminated by City or SMCFD in accordance with the provisions of A.R.S. § 38-511. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 By:id-r-0624x1,1)aalio- Kathleen Waldron Its: Chairman 6 THE CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By: John Insalaco Its: Mayor ATTEST: Kathleen Connelly, City Clerk STATE OF ARIZONA ) ) ss. County of The foregoing was acknowledged before me this day of ,2015,by Kathleen Waldron,Chairman of Superstition Mountains Community Facilities District No. 1, a Title 48 Community Facilities District, who acknowledges that she signed the foregoing instrument on behalf of SMCFD. Notary Public My Commission Expires: (seal) STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) The foregoing was acknowledged before me this day of ,2015,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. My Commission Expires: (seal) Notary Public 8 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. Clarke H. Greger, District Counsel Date I have read this Agreement and have determined such Agreement is in proper form and is entered into by the City within the powers of and authority granted under the laws of the State of Arizona. Richard J. Stern, City Attorney Date 9