AMENDMENT 4 - KIWANIS CLUB OF NEW RIVER.PDF
Extracted text (via pymupdf)
13445 characters
1 of 13
AMENDMENT FOUR
TO
MANAGEMENT AGREEMENT
BETWEEN
MARICOPA COUNTY
AND
KIWANIS CLUB OF NEW RIVER
C-30-09-026-3-01
Maricopa County, a political subdivision of the State of Arizona (“County”), and the
Kiwanis Club of New River (“Kiwanis”), an Arizona non-profit corporation, entered into a
Management Agreement on April 4, 1988 (as recorded in Maricopa County on April 13,
1988, #88-174423), as amended by Amendment One (C-30-03-017-B-00) dated March
5, 2003, Amendment Two (C-30-02-052-0-00) dated August 10, 2005, and Amendment
Three (C-30-09-026-3-00) dated May 6, 2009 (collectively, “Agreement”). County and
Kiwanis collectively hereinafter are known as “Parties” and individually as “Party.”
RECITALS
WHEREAS, the County entered into a lease agreement (Serial A-18077) on March 16,
1984, pursuant to the Recreation and Public Purposes Act of June 14, 1926, as
amended (43 U.S.C. 869; 869-1) with the Bureau of Land Management (BLM), for a
parcel of land in the New River, Arizona area for the purpose of development of park
facilities and a community center at New River Community Park (“Park”); and
WHEREAS,
the County and the BLM converted said lease agreement into a patent
agreement (Patent No. 02-2003-005), pursuant to the Recreation and Public Purposes
Act of June 14, 1926, as amended (43 U.S.C. 869; 869-1) with the BLM on June 11,
2003; and
WHEREAS, the Parties entered into the Agreement for the purpose of development,
management, maintenance, and operation of the Park for public recreation purposes;
and
WHEREAS, the term of the Agreement currently expires on April 3, 2028; and
WHEREAS, the County and Kiwanis desire to enter into this Amendment Four to the
Agreement, hereinafter referred to as “Amendment Four,” for (i) an extension of the term
for twenty (20) years beginning April 4, 2028, and expiring on April 3, 2048, and (ii)
construction of a playground in the Park with CSF funds, as defined below; and
WHEREAS, County, through its Parks and Recreation Department (“MCPRD”), will hire
a contractor to purchase playground supplies, equipment, and construct a playground
at the Park as depicted on Exhibit A, attached hereto, and incorporated herein by this
reference (“Proposal”); and
WHEREAS, pursuant to Maricopa County Policy A1125, Community Solutions Funding
(“CSF”), each member of the Board of Supervisors will receive an equal share of
General Fund contingency appropriated for CSF to conduct activities within their district;
and
2 of 13
WHEREAS, CSF is primarily intended to cover the cost of initiatives that carry the
potential of advancing Maricopa County’s Strategic Goals and provide a clear public
benefit for Maricopa County residents; and
WHEREAS, one purpose of this Amendment Four is for CSF to be used for the County
to construct a playground to benefit the Park and the public through the advancement of
the Safe Communities Maricopa County Strategic Goal; and
WHEREAS, the existing small playground at the Park is not up to Public Playground
Safety codes as provided by the U.S. Consumer Product Safety Commission and the
Parties desire to construct a new playground at the Park so that it serves the public
good; and
WHEREAS, Kiwanis will maintain the new playground and be responsible for, at its sole
cost and expense, the maintenance and repair of the new playground and ensure that
the new playground remains in code compliance; and
WHEREAS, the Parties desire to enter into this Amendment Four to set forth each
Party’s understandings, agreements, and responsibilities related to the construction and
future maintenance responsibilities of the playground; and
WHEREAS, the County and Kiwanis desire to enter into this Amendment Four with the
understanding that all other provisions of the Agreement not amended herein shall
remain the same and in full force and effect.
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, County and
Kiwanis hereby agree as follows:
I. INCORPORATION OF RECITALS
The Recitals set forth above are hereby incorporated into this Agreement.
II. EFFECTIVE DATE
This Amendment Four will become effective as of the date signed by the County
(“Effective Date”).
III. PLAYGROUND
The County shall be responsible for constructing a playground in the amount not-to-
exceed five hundred thousand dollars ($500,000) to benefit the Park and serve the
public good, as depicted in Exhibit A.
County and Kiwanis agree that all expenditures for the construction of the playground
shall comply with applicable policies, including the Community Solutions Funding Policy
A1125.
County will work jointly with Kiwanis for the type, placement, and coordination of
construction.
3 of 13
Kiwanis shall maintain the playground so that it meets the Public Playground Safety
codes as provided by the U.S. Consumer Product Safety Commission. Kiwanis shall be
responsible for maintenance of and repairs to the playground and all playground
equipment. This includes those activities that must be completed to maintain the area,
facility or pieces of equipment in a safe, properly functioning condition that complies with
commercial operating standards and all laws, statutes, regulations, rules and
ordinances.
III. TERM
The term of the Agreement shall be extended for twenty (20) years beginning April 4,
2028, and expiring on April 3, 2048, with one renewal option for a period of twenty (20)
years, subject to the mutual consent of the Parties.
A. At the time of any renewal, provisions of the Agreement may be changed subject
to the Parties’ written mutual agreement.
B. It is specifically expressed that this Agreement does not convey any ownership
interest in the described land.
C. This Agreement is subject to the provisions of A.R.S. § 38-511.
IV. NOTICES, CURRENT ADDRESSES, AND POINT-OF-CONTACT
All notices required under this Agreement shall be in writing and given by email delivery
and read receipt, or United States Post Office certified mail, return receipt requested, or
by commercial courier served with a receipt, or by hand delivery, to each Party’s
following address, or to such other address as either Party may notify the other in writing
as provided herein. Any such notice shall be considered served when communication is
received and signed for or delivery is refused or returned to sender as unclaimed.
County:
Maricopa County Parks and Recreation Department
Attn: Director
41835 N. Castle Hot Springs Road
Morristown, AZ 85342
Email: jennifer.waller@maricopa.gov
Kiwanis:
Kiwanis Club of New River
Attn: President
P.O. Box 75204
New River, AZ 85087-9602
Email: charlie.fisher82@gmail.com
V. GENERAL PROVISIONS
A. This Agreement may only be amended or modified by written agreement signed
by both Parties.
B. The Parties warrant that they are in compliance with A.R.S. §41-4401 and further
acknowledge that:
4 of 13
1. Any contractor or subcontractor who is contracted by a Party to perform work
on the property or improvements shall warrant their compliance with all
federal immigration laws and regulations that relate to their employees and
their compliance with A.R.S. §23-214(A) and shall keep a record of the
verification for the duration of the employee’s employment or at least three (3)
years, whichever is longer.
2. Any breach of the warranty shall be deemed a material breach of the
Agreement that is subject to penalties up to and including termination of the
Agreement.
3. The Parties retain the legal right to inspect the papers of any contractor or
subcontractor employee who works on the property or improvements to
ensure that the contractor or subcontractor is complying with the warranty
above and that the contractor agrees to make all papers and employment
records of such employee available during normal working hours in order to
facilitate such an inspection.
4. Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
C. The Parties warrant that neither they nor any contractor or vendor under contract
to provide goods or services toward the accomplishment of the objectives of this
Agreement is suspended or debarred by any federal agency which has provided
funding that will be used on the property as described in the Agreement.
D. The proper venue for any proceeding at law or in equity or under the provisions
for dispute resolution/arbitration shall be Maricopa County, Arizona. This
Agreement shall be construed in accordance with and be governed by the laws
of the State of Arizona.
E. This Agreement, together with any exhibits attached hereto and any agreements
executed contemporaneously herewith, constitutes the entire agreement
between the Parties and sets forth all the covenants, promises, agreements,
conditions, and understandings among the Parties, and there are no covenants,
promises, agreements, conditions, or understandings, either oral or written,
among the Parties other than as set forth herein. This Agreement shall be
construed as a whole and in accordance with its fair meaning and without regard
to any presumption or other rule requiring construction against the Party drafting
this Agreement.
F. Waiver of any breach of any term, condition or covenant herein contained shall
not be deemed to be a waiver of any other term, condition, or covenant herein, or
of a subsequent breach of any term, covenant, or condition herein. Any Party’s
consent to, or approval of, any subsequent or similar act shall not be deemed to
render unnecessary the obtaining of that Party’s consent to, or approval of, any
subsequent or similar act by another Party, to be construed as the basis of an
estoppel to enforce the provision or provisions of this Agreement requiring such
consent.
G. Wherever possible, each provision of this Agreement shall be interpreted in such
manner as to be valid under applicable law, but if any provision shall be invalid or
prohibited thereunder, such provision shall be ineffective to the extent of such
prohibition or invalidation but shall not invalidate the remainder of such provision
or the remaining provisions.
H. Each Party warrants that the person signing this Agreement has the authority to
do so. On or before the Effective Date, Kiwanis shall provide to County
documentation to the County that, in its sole discretion, demonstrates that the
person signing this Amendment Four has the authority to do so.
5 of 13
I. The Parties agree to execute and/or deliver to each other such other instruments
and documents as may be reasonably necessary to fulfill the covenants and
obligations to be performed by the Parties pursuant to this Agreement.
J. The Assistant County Manager for Maricopa County or Director of MCPRD shall
administer the Agreement and this Amendment Four, including executing
documents necessary to administer the Agreement and this Amendment Four.
K. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the
same instrument. Electronic signatures shall have the same force and effect as
original signatures.
L. Kiwanis agrees to comply with all applicable portions of A.R.S. § 35-394. Kiwanis
certifies that it does not currently, and agrees for the duration of the Agreement,
that it will not use:
1. The forced labor of ethnic Uyghurs in the People’s Republic of China.
2. Any goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
3. Any contractors, subcontractors, or suppliers that use the forced labor or any
goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.
If Kiwanis becomes aware during the term of the Agreement that it is not in
compliance with this paragraph, Kiwanis shall notify the County within five
business days after becoming aware of the noncompliance. If Kiwanis fails to
provide a written certification to the County that it has remedied the
noncompliance within 180 days after notifying the County of its noncompliance,
then the Agreement terminates, except that if the Agreement termination date
occurs before the end of the 180-day period, the Agreement terminates on the
Agreement termination date.
M. The foregoing paragraphs contain all the changes made by Amendment Four. All
other terms and conditions of the Agreement remain the same and in full force
and effect, except as herein amended.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
6 of 13
IN WITNESS WHEREOF the Parties have executed this Agreement as of the dates
written below.
MARICOPA COUNTY:
___________________________________
Jack Sellers
Date
Chairman, Board of Supervisors
ATTEST:
___________________________________
Clerk of the Board
Date
Approved as to Form:
___________________________________
Deputy County Attorney
Date
KIWANIS CLUB OF NEW RIVER:
Date
7 of 13
EXHIBIT A
8 of 13
9 of 13
10 of 13
11 of 13
12 of 13
13 of 13