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HomeMy WebLinkAboutRES 16-30RESOLUTION NO. 16-30 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 WITH SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO.1 FOR FINANCIAL PARTICIPATION IN A PORTION O F THE RESTROOM CONSTRUCTION COST AND RELATED SEWER SERVICES AT THE FLATIRON COMMUNITY PARK. WHEREAS, the City of Apache Junction ("City") has engaged a contractor for the construction of Flatiron Community Park ("FCP"),a recreational facility in Apache Junction,Arizona; and WHEREAS,FCP needs restrooms and accompanying sewer service; and WHEREAS,Superstition Mountains Community Facilities District No.1 ("SMCFD")desires to partner with City in the funding of the construction costs for the restrooms at FCP; and WHEREAS,SMCFD and City agree that mutual cooperation on governmental services,materials, and equipment would result in public savings; and WHEREAS,pursuant to A.R.S.§§11-951 and 48-709 (A)(2), City and SMCFD may enter into an intergovernmental agreement for joint or cooperative activities,to include financial contributions for FCP; and WHEREAS,City and SMCFD have crafted the legal arrangement in the form of the attached intergovernmental agreement which sets forth the terms and conditions. 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 are authorized to approve the form of the intergovernmental agreement for the financial participation in a portion of the restroom construction cost and related sewer services at the Flatiron Community Park, as set forth in Attachment A; and the mayor is hereby authorized to sign the agreement on behalf of the City. RESOLUTION NO. 16-30 PAGE 1 OF 2 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. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, THIS 4 14-DAY OF aitt6:40_,2016. SIGNED AND ATTESTED TO THIS 4 1'4 DAY OF C 16 ,10661t,2016. ATTEST: zeivt,e6i,„xAx,x_e_&e, KATHLEEN CONNELLY City Clerk APPROVED AS TO FORM: * RICHARD J. STERN City Attorney RESOLUTION NO. 16-30 PAGE 2 OF 2 ATTACHMENT A INTERGOVERNMENTAL AGREEMENT BETWEEN SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 AND CITY OF APACHE JUNCTION FOR THE CONSTRUCTION OF RESTROOMS AND BILLING FOR SEWER SERVICES AT THE FLATIRON COMMUNITY PARK THIS AGREEMENT is made and entered into this 4 ay of afit6g..2016,by and between the SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 (SMCFD), a community facilities district and political subdivision of the State of Arizona and the CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation (City) both collectively referred to as the Parties, or individually as a Party. RECITALS A.The City has engaged a contractor for the construction of the first phase of the Flatiron Community Park, a recreational facility for the use of members of the public for recreation, to be located on N. Apache Trail, Apache Junction, Arizona. B.The City planned to postpone the construction of restroom facilities at the park to a future date. C.SMCFD desires to partner with the City in the funding of the construction of restrooms at the park so that they can be included in the first phase of park construction. D.SMCFD and City agree that mutual cooperation on governmental services, materials, and equipment would result in public savings. E.SMCFD is authorized to contract with cities and towns and to enter into an agreement with the City pursuant to ARS §§ 48-709.A.2. and 11-951 et seq. F.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.PURPOSE:The purpose of this Agreement is to define the contribution to be made by SMCFD toward the construction of the restroom facilities, to define the Connection Permit fee and Application fees to be paid by the City for connection to SMCFD's sewer system and to define the monthly sewer obligation to be paid by the City for ongoing sewer services for the park. 2.SMCFD OBLIGATIONS: a.SMCFD will deliver to the City a check for $62,000 on or before October 31, 2016 to be used for financing a portion of the construction of the restroom facilities at the park. b.SMCFD will waive the $3,545 Connection Permit fee for the park as an additional contribution. c.SMCFD will waive the Design Review fees and the Construction Inspection fees totaling $845 as an additional contribution. d.SMCFD will set the monthly sewer service charges for the park at the monthly minimum for the park's service classification times the number of structures in the park connected to the sewer system. e.SMCFD will approve signage provided by the City to be placed at the restroom facilities to acknowledge SMCFD's financial participation in the construction of the restrooms. SMCFD will work with City to determine proper size and location for the signage. f.SMCFD will provide an educational exhibit approved by the City to be placed at or near the restroom facility to provide information on water and wastewater. SMCFD will work with City to determine proper size and location for exhibit.SMCFD will update the exhibit from time to time. 3.CITY OBLIGATIONS: a.City will construct the restrooms in the first phase of construction of the park.If the restrooms are not constructed in the first phase,the City will reimburse SMCFD $62,000. b.City will obtain a permit to connect to SMCFD's collection system,complete the necessary paperwork, and pay an Application Fee of $40. c.City will retain sole ownership of the restrooms and be solely responsible for any ongoing repairs and maintenance. d.City will provide signage at the restroom facility acceptable to SMCFD to acknowledge SMCFD's financial participation in the construction of the restrooms.City will be responsible for ongoing maintenance of SMCFD signage. e.City will permit and have final approval of an educational exhibit provided by SMCFD to be placed at the restroom facility.City will permit the exhibit to be updated by SMCFD from time to time.City will be responsible for upkeep of the educational exhibit and will be responsible to arrange for installation of any updated exhibits provided by SMCFD. f.City will acknowledge SMCFD's financial participation in the construction of the restrooms on its website and on any promotional materials that acknowledge other partnership efforts in the construction of the park. 4.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 -2- 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. 5.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. 6.CITY REPRESENTATIONS:City represents and warrants to SMCFD that: 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 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.DURATION OF AGREEMENT:Unless the Parties otherwise agree, this Agreement will remain in effect so long as the City, and its successors or assigns, maintains the Flatiron Community Park as a facility open to the public. -3- 8.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 any nationally recognized express or overnight delivery service (e.g. Federal Express or UPS), delivery charges prepaid: If to SMCFD:Da rron Anglin, District Manager Superstition Mountains Community Facilities District No. 1 5661 South Ironwood Drive Apache Junction, AZ 85220 Email:danglin@smcfd.org If to City:Bryant Powell, City Manager City of Apache Junction 300 E. Superstition Blvd. Apache Junction, AZ 85219 Email:bpowell@ajcity.net 9.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. 10.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. -4- 11.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. 12.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. 13.CONFLICTS OF INTEREST:This Agreement is subject to, and may be terminated by SMCFD or City in accordance with the provisions of ARS § 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. ATTEST: Kathleen Connelly, City Clerk SUPERSTITION MOUNTAINS COMMUNITY FACILITIES DISTRICT NO. 1 By: Kathleen Waldron Chairman THE CITY OF APACHE JUNCTION, ARIZONA, an Arizona municipal corporation By: John Insalaco Mayor -5- STATE OF ARIZONA ) ) ss. County of The foregoing was acknowledged before me this day of , 2016, 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. My Commission Expires: (seal) STATE OF ARIZONA ) ) ss. COUNTY OF PINAL ) Notary Public The foregoing was acknowledged before me this day of , 2016, by John S. lnsalaco, 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 -6- 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 -7-