HomeMy WebLinkAboutRES 16-01RESOLUTION NO. 16-01
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY
OF APACHE JUNCTION, ARIZONA, AUTHORIZING EXECUTION AND
ADOPTION OF THE FIRST AMENDMENT TO THE AMENDED AND
RESTATED INTERGOVERNMENTAL AGREEMENT TO PLAN,DESIGN,
CONTRUCT,OPERATE,MAINTAIN AND FINANCE THE TOPAZ
REGIONAL WIRELESS COOPERATIVE ("TRWC") NETWORK.
WHEREAS, on August 7, 2008, the City of Apache Junction, the
Superstition Fire and Medical District (formerly known as the
Apache Junction Fire District), the Town of Gilbert and the Town
of Queen Creek entered into an Intergovernmental Agreement to Plan,
Construct, Operate, Maintain and Finance the TRWC Network Contract
Number 2008-3002-0359.
WHEREAS,on May 1,2012,the City of Apache Junction,the
Apache Junction Fire District, the Town of Gilbert, the Town of
Queen Creek and the Rio Verde Fire District (collectively the
"Parties") entered into an Amended and Restated Intergovernmental
Agreement to Plan,Construct, Operate, Maintain and Finance the
TRWC Network Contract Number 2008-3002-0359 that superseded and
replaced in its entirety the August 7, 2008 Agreement.
WHEREAS, the Parties desire to enter into this First Amendment
to add the Fort McDowell Yavapai Nation as an additional party to
the Amended and Restated Agreement and the Fort McDowell Yavapai
Nation agrees to be bound by all terms and conditions of the
Amended and Restated Agreement as amended by this First Amendment.
NOW, THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL
OF THE CITY OF APACHE JUNCTION ARIZONA, AS FOLLOWS:
1)The council finds that it is in the best interest of the City
of Apache Junction to amend the agreement to include the Fort
McDowell Yavapai Nation.
2)The Council hereby approves and the city manager is authorized
to execute the First Amendment to the Amended and Restated
Intergovernmental Agreement to Plan,Design,Construct,
Operate,Maintain and Finance the TOPAZ Regional Wireless
Cooperative Network as set forth in "Attachment A".
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS 5th DAY OF January, 2016.
RESOLUTION NO. 16-01
PAGE 1 OF 2
SIGNED AND ATTESTED TO THIS 7 DAY OF
ATTEST:
/
KATHLEEN CONNELLY I(
City Clerk
APPROVED AS TO FORM:
/229/5
RICHARD J. STERN
City Attorney
RESOLUTION NO. 16-01
PAGE 2 of 2
Ale.9-/, 2016.
ATTACHMENT A
When Recorded Return To:
William H. Anger
Engelman Berger, P.C.
3836 N. Central Ave., Suite 700
Phoenix, AZ 85012
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
TEE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
1.Parties.This First Amendment to Amended and Restated Intergovernmental Agreement
("First Amendment") is entered into by and between the City of Mesa, the City of Apache
Junction, the Superstition Fire and Medical District (formerly known as Apache Junction Fire
District), the Town of Gilbert, the Town of Queen Creek, the Rio Verde Fire District and the Fort
McDowell Yavapai Nation ("Parties").
2.Recitals.
2.1.The City of Mesa, the City of Apache Junction, the Apache Junction District, the
Town of Gilbert and the Town of Queen Creek entered into an Intergovernmental Agreement to
Plan, Construct, Operate, Maintain and Finance the TRWC Network Contract Number 2008-
3002-0359 and dated August 7, 2008 ("August 7, 2008 Agreement").
2.2.The City of Mesa, the City of Apache Junction, the Apache Junction District, the
Town of Gilbert, the Town of Queen Creek and the Rio Verde Fire District entered into an
Amended and Restated Intergovernmental Agreement to Intergovernmental Agreement to Plan,
Construct, Operate, Maintain and Finance the TRWC Network Contract Number 2008-3002-0359
with an Effective Date of May 1, 2012 ("Amended and Restated Agreement") that superceded
and replaced in its entirety the August 7, 2008 Agreement.
2.3.The Parties enter into this First Amendment to add the Fort McDowell Yavapai
Nation as a Party to the Amended and Restated Agreement and the Fort McDowell Yavapai
Nation agrees to be bound by all terms and conditions of the Amended and Restated Agreement
as amended by this First Amendment.
2.4.The Parties are authorized to enter into this First Amendment by the joint
exercise of powers provisions of Title 11, Chapter 7, Article 3 (§§ 11-951 et seq.), Arizona
Revised Statutes and the authorization of their legislative or other governing bodies.
10018030321
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
3.Incorporation of Recitals; Date and Duration of First Amendment.
3.1.The accuracy of the Recitals set forth in Subsections 2.1 through 2.4 above are
hereby acknowledged and such Recitals are incorporated into this First Amendment by this
reference.
3.2. The "Effective Date" of this First Amendment is February 1, 2016. All Parties shall
execute this First Amendment and comply with the requirements of A.R.S. § 11-952, which
includes appropriate action by the legislative or other governing body of the Party for the
approval of this First Amendment, determination by the Party's attorney that the First
Amendment is within the powers and authority of the Party, and the proper filing of the First
Amendment.
3.3. The Parties agree to modify and amend the Amended and Restated Agreement under
the same terms and conditions as originally agreed subject to the additional terms and
modifications set forth in this First Amendment.The Parties reaffirm their respective rights and
obligations under the Amended and Restated Agreement except as modified by this First
Amendment.
4.TRWC Network Definition.
4.1 When used in the Amended and Restated Agreement and this First Amendment
the "TRWC Network" shall mean the public safety and general government communications
system originally procured and built by the City of Mesa and commonly referred to as "TOPAZ"
or the "TrunIced Open Arizona Network" that is planned, designed, constructed, operated,
maintained, and financed by the TRWC and its Members, including all real estate, real property
and personal property that is purchased, leased or licensed by the TRWC or owned or licensed by
a Member and allowed to be used by TRWC in connection with the TRWC Network. Unless the
context clearly requires otherwise, capitalized terms used herein shall have the same meaning as
in the Amended and Restated Agreement.
5.A New Section 25 is added to the Amended and Restated Agreement that states as
follows:
"Waiver of Sovereign Immunity.The Fort McDowell Yavapai Nation agrees to waive its
sovereign immunity solely and exclusively for the strictly limited purpose of resolving a claim or
dispute that may arise with respect to the interpretation or enforcement of the Amended and
Restated Agreement as amended by the First Amendment or the Fort McDowell Yavapai
Nation's use of or participation in the TRWC Network. In addition, the First Amendment shall
not become effective until and unless the Fort McDowell Yavapai Nation 1) waives its sovereign
immunity solely and exclusively for the strictly limited purpose of resolving a claim or dispute
that may arise with respect to the interpretation or enforcement of the First Amendment and 2)
consents to the jurisdiction of the federal or state courts authorized in Section 22 of the Amended
and Restated Agreement solely and exclusively for the strictly limited purpose of resolving a
claim or dispute that may arise with respect to the interpretation or enforcement of the Amended
{001803033}2
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
and Restated Agreement as amended by the First Amendment or the Fort McDowell Yavapai
Nation's use of or participation in the TRWC Network."
6.Conflict of Interest. The Parties understand and acknowledge that this First Amendment
and the Amended and Restated Agreement may be subject to cancellation under A.R.S. § 38-511
(Arizona's public employee conflict of interest law) in the event there is a conflict of interest of
the type specified in A.R.S. § 38-511 by persons significantly involved in initiating, negotiating,
securing, drafting or creating this First Amendment.
7.Entire Agreement. The Amended and Restated Agreement as amended by this First
Amendment, including the Governance Agreement attached as Exhibit A to the Amended and
Restated Agreement, contains the entire agreement and understanding among the parties
regarding the formation, governance and operations of the TRWC, and supersedes and replaces
all related prior negotiations, agreements and proposed agreements, written or oral. Each Party
acknowledges that no other Party, nor any agent or attorney of any Party, has made any promise,
representation, or warranty whatsoever, expressed or implied, not contained in the Amended and
Restated Agreement as amended by this First Amendment and acknowledges that the Amended
and Restated Agreement and this First Amendment have not been executed in reliance on any
promise, representation or warranty not contained in the Amended or Restated Agreement or this
First Amendment. The Amended and Restated Agreement as amended by this First Amendment
shall not be amended, modified or supplemented at any time unless in writing.
8.Governing Law. This First Amendment and the Amended and Restated Agreement shall
be governed by and construed in accordance with the laws of the State of Arizona applicable to
contracts executed and intended to be performed entirely within the State of Arizona by residents
of the State of Arizona, Any action at law, suit in equity or judicial proceeding for the
enforcement of the Amended and Restated Agreement as amended by this First Amendment or
any provision therefore shall be instituted only in the courts of Maricopa County, Arizona.
9.Counterparts. This First Amendment may be signed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
10.Amended and Restated Agreement Still Effective. All provisions of the Amended and
Restated Agreement shall remain in filll force and effect except as amended by this First
Amendment.
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FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN 'WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their duly authorized officers.
ATTEST:
Town Clerk
Printed Name
APPROVED AS TO FORM and within the
powers and authority putted under the laws
of Arizona to the Town of Gilbert
Town Attorney
Printed Name
TOWN OF GILBERT
Date:
By
Town Manager
Printed Name
(000251Um0s4o0628263.nocxi)4
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN,CONSTRUCT, OPERATE,MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their duly authorized officers.
CITY OF MESA
Date:
By
City Manager
Printed Name
ATTEST:
City Clerk
Printed Name
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the City of Mesa
City Attorney
Printed Name
{0002R13.0000060165.1300( /}5
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their duly authorized officers.
ATTEST:
Town Clerk
Printed Name
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the Town of Queen Creek
Town Attorney
Printed Name
TOWN OF QUEEN CREEK
Date:
By
Town Manager
Printed Name
(0002503.0005/00628285DOCX06
MST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their duly authorized officers.
SUPERSTITION FIRE & MEDICAL
DISTRICT (FORMERLY KNOWN AS THE
APACHE JUNCTION FIRE DISTRICT
Date;
By
Board Chair
Printed Name
ATTEST:
Board Clerk
Printed Name
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the County of
Attorney for the Board
Printed Name
poonn000ma61s65.cocx07
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their duly authorized officers,
CITY OF APACHE JUNCTION
Date:
By
City Manager
Printed Name
ATTEST:
City Clerk
Printed Name
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the City of Apache Junction
City Attorney
Printed Name
(000103.0003/0062826S.DOCK / )8
FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSTRUCT, OPERATE, MAINTAIN AND FINANCE
THE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed by their duly authorized officers.
RIO VERDE FIRE DISTRICT
Date:
By
Its:
Printed Name
ATTEST:
Board of Directors, Clerk
Printed Name
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the County of Marlcopa
County Attorney
Printed Name
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FIRST AMENDMENT TO AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT TO
PLAN, DESIGN, CONSIBUCT, OPERATE, MAINTAIN AND FINANCE
TEE TOPAZ REGIONAL WIRELESS COOPERATIVE NETWORK
FORT MCDOWELL YAVAPAI
NATION
Date:
By,
*ATTEST:
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Printed Name
APPROVED AS TO FORM and within the
powers and authority granted under the laws
of Arizona to the Fort McDowell Yavapai Nation
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cDowell x avapai Nation Attorney
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