Intergovernmental Agreement

When Recorded Return to:
City of Glendale

5850 W Glendale Ave
Glendale, AZ 85301

INTERGOVERNMENTAL AGREEMENT
regarding the use of the
DESERT GARDEN PARK JOINT PARK SITE
between the
CITY OF GLENDALE
and the
GLENDALE ELEMENTARY SCHOOL DISTRICT. NO. 40

THIS INTERGOVERNMENTAL AGREEMENT REGARDING THE USE OF THE JOINT PARK
SITE is made and entered into this G4. day of Renb— __,2021 by and between the
CITY OF GLENDALE, a municipal corporation, hereinafter referred to as “City,” and the GLENDALE
ELEMENTARY SCHOOL DISTRICT NO. 40, a political subdivision of the State of Arizona,
hereinafter referred to as “District” (individually a party and collectively the parties).

BACKGROUND

WHEREAS, the parties desire to enter into an agreement by which the District Park Site (a portion of
APN 144-05-005M), located in the vicinity of 69" Lane and Ocotillo Road; and the City Park Site (APN
144-05-005L) located adjacent to 69" Avenue and Ocotillo Road), will be used as a joint park site.
Hereinafter, the District Park Site and the City Park Site will be referred to collectively as the “Joint
Park Site” (as depicted in Exhibit A, attached hereto and incorporated herein); and

WHEREAS, the District and the City are authorized to enter into intergovernmental agreements for
services or for the exercise of joint or common powers pursuant to A.R.S. §§ 11-951 et seq.; and

WHEREAS, the District is further authorized to enter into this Agreement pursuant to the provisions of
A.RS. §§ 15-342 (13), 15-363 and 15-364; and

WHEREAS, the City is further authorized to enter into this Agreement pursuant to the provisions
contained in Article I of the City Charter.

NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises and agreements of the
parties herein contained, it is agreed as follows:

TERMS OF AGREEMENT

1, USE OF JOINT PARK SITE

1.1 Ownership. The District shall remain the sole fee simple owner of the District Park Site, and the City
shall remain the sole fee simple owner of the City Park Site.

1.2 Use. The District shall have the exclusive right to use, control and scheduling of the Joint Park Site
from 12:00 a.m. to 4:00 p.m. on Monday — Friday, excluding school holidays and vacations, during
the Districts approved governing board school calendar, which is anticipated to be from
approximately August 9 through May 26. At all other times, the City shall have the exclusive right
to the use, control, and scheduling of the Joint Park Site unless the District obtains the City’s
permission to use the Joint Park Site during such times.

2. MAINTENANCE AND IMPROVEMENTS

2.1 Improvements. Unless otherwise set forth in this Agreement or agreed to in writing:

a. Neither party shall make any improvements to the Joint Park Site without the prior
written consent of the other party.

b. In the event either party makes any improvements to the Joint Park Site without the prior
written consent of the other party, the party making such improvements shall be solely
responsible for the costs of the improvements and/or the removal of the same.

c. Notwithstanding anything herein to the contrary, the parties agree to split the cost of
normal elementary school playground equipment and such other equipment as the parties
may mutually agree to purchase (collectively referred to as the “Equipment”), only with
each party’s written approval and consent given in accordance with the following
procedure: Should either party desire for the other party to split the cost of the
Equipment, the party desiring such purchase shall provide written notice of its purchase
of the Equipment or intent to purchase the Equipment, together with such other
supporting documentation, invoices and purchase orders. The party receiving such notice
as supporting documentation shall have fifteen (15) days to review the notice and
supporting documentation and to determine, in its sole discretion, whether to consent to
splitting the cost with the other party. Failure of the party receiving the notice to give its
consent within such fifteen-day period shall be deemed to be such party’s disapproval
thereof.

2.2 Liens. Neither party shall cause or permit any mechanic’s lien to be filed against the Joint Park
Site for work claimed to have been done or for materials claimed to have been supplied to such
party. If any such lien is filed against the Joint Park Site, the party for whom it is claimed work
was done or to whom it is claimed materials were supplied shall, at its sole expense, cause such
lien to be discharged within thirty (30) days. The party contracting for improvements to the Joint
Park Site shall ensure that the contractor(s) procures and maintains appropriate payment and
performance bonds.

2.3 Ownership: Compensation.. Any improvements to the Districts Park Site shall become the
property of the District and any improvements to the City Park Site shall become the property of
the City; provided that in the event this Agreement expires or is terminated, compensation shall
be paid as follows:

a. The difference between the fair market value of all improvements jointly funded during the
term of this agreement to the District Park Site and the fair market value of all improvements
jointly funded during the term of this agreement to the City Park Site shall be determined;
improvements funded by only one party shall not be included in the determination;

b. Ifthe value of the jointly funded improvements to the District Park Site exceed the value of
the jointly funded improvements to the City Park Site, the District shall pay the City the sum
of one-half of such difference; and

c. Ifthe value of the jointly funded improvements to the City Park Site exceed the value of the
jointly funded improvements to the District Park Site, the City shall pay the District the sum
of one-half of such difference.

2.4 Maintenance.

a. The City shall maintain and keep the Joint Park Site and all improvements thereon in a clean,
safe and useable condition, including necessary landscaping, grass cutting, fertilization and
maintenance of a sprinkler system, and park amenities such as sport courts and playground
equipment.

b. The District shall pick up any litter left during its use of the Joint Park Site. The District is
responsible for inspecting the Joint Park Site prior to use each day and reporting any unsafe
conditions observed.

c. All costs of repairing, operating, and maintaining the Joint Park Site, including any electric,
water, or other utility bills incurred shall be split evenly between the District and the City.
The City shall invoice the District annually by June 30" of each year for reimbursement of
the District’s share of the Joint Park Site maintenance for that year ending June 30" and the
District shall remit payment to the City on or before August 31" of each year. All ordinary
personnel costs to the District and the City for ordinary maintenance of the Joint Park Site
pursuant to this Section shall be borne solely by the party responsible for performing such
maintenance.

d. In the event that either party incurs extraordinary maintenance or personnel expenses for
maintaining the Joint Park Site resulting from the other party's use of the Joint Park Site, the
party whose use of the Joint Park Site necessitates the extraordinary expenses shall be
responsible for reimbursing the other party for the extraordinary expenses.

3. SINKING FUND

The parties shall establish a sinking fund (the "Fund") for the purchase, repair, and replacement of
playground equipment and other agreed upon expenditures. The Fund shall be maintained in a City trust
account and all expenditures shall be made on purchase orders authorized by the City Manager or his or
her designee. Each party shall annually, on or before July 1, deposit $1,500.00 in the Fund until the
Fund reaches a total of $18,000.00. Either party may pre-pay its obligations to the Fund. At such time,
the District and the City shall cease making annual deposits until the Fund is expended below $9,000.00,
at which time both parties shall recommence annual deposits until the Fund again reaches $18,000.00.
Upon the conclusion of this IGA, any amounts in the Fund shall be divided on a prorata basis depending
on the contribution of each party.

4, INDEMNIFICATION; NOTICE OF CLAIM

To the extent permitted by law, each party shall defend, indemnify and hold harmless the other party and
its departments, officers, employees and agents from all losses, damages, claims, liabilities and expenses
(including reasonable attorney’s fees) for damages to property or for injury to or death of persons which
relate to the performance of this Agreement and which result from any sole or negligent act of omission
of the indemnifying party or its departments, officers, employees or against.

5. INSURANCE
5.1 Coverage. Each party shall provide and maintain in full force while this Agreement is in effect:

a) Public liability and property damage insurance from a reliable insurance company authorized
to transact business in Arizona in the amount of not less than $2,000,000 for bodily injury or
death to more than one person, one occurrence, or

b) An adequately funded self-insurance program for such liability and damage claims which
complies with all applicable laws, rules and regulations.

Each party shall, in its sole discretion, make its own decision as to whether it will maintain said
insurance through an insurance company or, alternatively, whether it will maintain said self-
insurance program. Each party shall provide the other party with appropriate certificates of insurance
showing the other party as an additional named insured or certificates of self-insurance.

5.2 Notice of Claims. Notice of any possible injury, loss or damage which may be covered by
insurance or indemnification must be given immediately by the party aware of such an
occurrence to the other party.

5.3 Determination of Primary Insurance and Defense. In the event that a claim is made against either
or both parties to this Agreement, the primary insurance or self-insurance, and costs associated
with the defense of the claim and any judgment, shall be that of the party who was assigned the
use of the Joint Park Site, as provided in Section 1.2, at the time the loss claim arose, absent a
showing that the damage to property or injury to or death of person(s) arose out of the sole act,
omission or negligence of the other party or its departments, officers, employees and agents.

6. TERM.

The term of this Agreement shall be for five (5) years, commencing on the date of approval unless it is
sooner terminated in accordance with Section 7 below. This agreement may be renewed for three (3)
additional five-year periods at the end of each term only by the written consent of both parties.

7, TERMINATION.

7.1 Default. This Agreement may be terminated by either party for material cause 60 days after
written notice is given to the defaulting party specifying the cause if the default is not cured
within said 60-day period; provided, however, that the defaulting party shall have an
additional reasonable period of time to cure such default if: (a) such default cannot be
reasonably cured within such 60-day period; and (b) the defaulting party at all times is
diligently undertaking to cure such default.

7.1 Convenience, Either party may terminate this Agreement for any reason or for no reason,
effective July 1* of any year, by giving the other party at least 90 days’ notice.

7.2 Cancellation. Each party reserves all rights that it may cancel this Agreement for possible
conflicts of interest under A.R.S. Sec, 38-511 as amended.

8. ASSIGNMENT

Neither party may assign, sublet, mortgage or encumber any right or interest under this Agreement
without prior written consent of the other party, which either party may withhold in its absolute and sole
discretion.

9, E-VERIFY, RECORDS, AND AUDITS.

To the extent applicable under A.R.S. § 41-4401, the parties and their respective subcontractors warrant
compliance with all federal immigration laws and regulations that relate to their employees and
compliance with the E-verify requirements under A.R.S. § 23-214(A). The parties each retain the legal
tight to randomly inspect the papers and records of the other parties and the other parties’ subcontractors
who work under this Agreement to ensure that the other parties and their subcontractors are complying
with the above-mentioned warranty. The parties warrant to keep their respective papers and records
open for random inspection during normal business hours by the other parties. Each party and its
respective subcontractors shall cooperate with the other parties’ random inspections including granting
the inspecting party entry rights onto their respective properties to perform the random inspections and
waiving their respective rights to keep such papers and records confidential.

10. WORKER’S COMPENSATION.

An employee of either party shall be deemed to be an “employee” of both public agencies while
performing pursuant to this Agreement solely for the purposes of A.R.S. § 23-1022 and the Arizona

Workers’ Compensation laws. The primary employer shall be solely liable for any workers’
compensation benefits which may accrue. Each party shall post a notice pursuant to the provisions of
A.R.S. § 23-1022(E).

11. NON-DISCRIMINATION.

The parties agree to comply with all provisions of applicable, federal, state, and local laws and
executive orders relating to non-discrimination and equal employment opportunity and not discriminate
against any employee or applicant for employment, any student, parent, staff member, member of the
public or contractor on the basis of race, color, religion, sex (including sexual preference/identity), age,
disability, country of national origin, veteran’s status, political affiliation, or genetic code.

12. APPROPRIATION OF FUNDS.

If either party’s performance under this Agreement depends upon the appropriation of funds by the
Arizona Legislature or the Glendale City Council, and if the Legislature or the City Council fails to
appropriate the funds necessary for performance, then the affected party may provide written notice of
this to the other party and cancel this Agreement without further obligation of the effected party.
Appropriation is a legislative act and is beyond the control of either party.

13, NOTICES.

Any notice required or permitted under the terms of this Agreement shall be in writing and may be
delivered personally or served by certified mail, return receipt requested, postage prepaid, addressed as
follows:

TO THE DISTRICT:
Glendale Elementary School District No. 40
7301 N. 58" Avenue
Glendale, Arizona 85301
Attention: Superintendent

TO THE CITY:
City of Glendale
5850 W. Glendale Avenue
Glendale, Arizona 85301
Attention: City Manager

Any notice given by certified mail shall be deemed to have been received by the other party one day
after the date of mailing.

14. MISCELLANEOUS.

14.1 Joint Venture. This Agreement is not intended to constitute, create, give rise to, or
otherwise recognize a joint venture agreement, partnership or other formal business

14,2

14.3

14.4

14.5

14.6

14.7

14.8

association or organization of any kind, and the rights and obligations of the parties shall be
only those expressly set forth in this Agreement.

Compliance. Each party shall comply with all applicable laws, ordinances, Executive
Orders, rules, regulations, standards, and codes of the Federal, State, and Local
governments whether or not specifically referenced herein.

Entire Agreement. This Agreement contains the entire agreement between the parties
hereto and supersedes all prior and contemporaneous agreements and understandings
between the parties respecting the subject matter hereof. Should any provision of the
Agreement be held to be invalid, void or unenforceable, or waived whether by conduct or
otherwise, in any one or more instances, it shall not affect the enforceability of the
remaining provisions of this Agreement which shall be read as if such term or provision
held invalid, void, unenforceable or waived were never part hereof.

Amendment. No supplement, modification or amendment of any term, provision or
condition of this Agreement shall be binding or enforceable unless executed in writing by
the parties hereto.

No Waiver. No failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or
privilege.

Governing Law. This Agreement shall be governed by, enforced and construed in
accordance with the internal laws of the State of Arizona, without regard to conflicts of
law principles, and will be construed as a whole and in accordance with its fair meaning
and without regard to, or taking into account, any presumption or other rule of law
requiring construction against the party preparing this Agreement or any part hereof.
Any dispute or controversy relating to this Agreement, including the breach and
enforcement thereof, will take place in the Superior Court of Maricopa, Arizona.

Litigation and Attorneys’ Fees. In the event either party shall bring any action or
proceeding for damages for any alleged breach of any provision of this Agreement, to
recover rents or any other sums due hereunder, or to enforce, protect, or establish any
right or remedy of either party, the prevailing party shall be entitled to recover as part of,
or incident to, such action or proceeding, all attorneys’ fees, expert witness fees and other
costs and expenses incurred in the preparation and processing of such action or
proceeding. This provision shall apply to any arbitration proceeding brought pursuant to
Section 5 above.

Further Assurances and Documentation. Each party agrees in good faith to take such
further actions and execute such further documents as may be necessary or appropriate to
fully carry out the intent and purpose of this Agreement.

14.9 Dates of Performance. If the time for the performance of any obligation under this
Agreement expires on a Saturday, Sunday or legal holiday, the time for performance will
be extended to the next succeeding day which is not a Saturday, Sunday or legal holiday.

14.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original, but all of which, together, shall constitute one and the
same instrument.

[Signatures on following pages.]

IN WITNESS WHEREOF said parties have duly executed this instrument the day and year first

above written.
GLENDALE ELEMENTARY SCHOOL

DISTRICT NO. 40, a political subdivision of the
State of Arizona

By” Luis M. Barragan
Its: Asst. Superintendent for Finance & Auxiliary

Services and the Authorized Representative for the
Glendale Elementary School District #40

Approved by District's Legal Counsel:

Date: ppm (4 M22

STATE OF ARIZONA )
) ss.
County of Maricopa )

SUBSCRIBED AND SWORN TO before me this __/ vi day of
, 2021, by Luis M. Barragan, the Assistant Superintendent for Finance &

Aukiliary Sefvices and the Authorized Representative for Glendale Elementary School District #40, on
behalf of the District.

NotaryPublic
My Commission Expires:

CITY OF GLENDALE,
an Arizona municipal corporation

By: Kevin R. Phelps
Its:_City Manager

ATTEST:

Julie K. Bower,
City Clerk (seal)

APPROVED AS TO FORM:

Michael D. Bailey
City Attorney

STATE OF ARIZONA )

) ss.
County of Maricopa )
SUBSCRIBED AND SWORN TO before me this day of

, 2021, by Kevin R. Phelps, the City Manager of the City of Glendale,

Arizona, on behalf of the City.

Notary Public
My Commission Expires:

Document to be recorded by City of Glendale.

10

EXHIBIT A -Desert Garden Park & School

75/2021 3:26:40PM