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HomeMy WebLinkAbout03/21/2006 Blue Sheet Airport Sewer Connection IGA TOWN COUNCIL MEETING INFORMATION TOWN OF MARAN A MEETING DATE: March 21, 2006 AGENDA ITEM: I. 4 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Resolution No. 2006-45: Relating to the Airport; approving and authorizing the Mayor to execute an intergovernmental agreement with Pima County for the Marana Regional Airport Sewer Con- nection Project. DISCUSSION Project 6.6 of the Pima County 2004 bond implementation ordinance, approved by the voters in May 2004, authorizes $2,800,000 in County bond funding for the construction of the Marana Regional Airport sewer connection from the Marana Regional Airport to a connection point in the existing sewer system at Sanders Road and the Santa Cruz River. This intergovernmental agreement facilitates the use of the bond funding in connection with the constructionmanager-at- risk project awarded to Sundt for the construction ofthe airport terminal and restaurant and asso- ciated infrastructure (including this sewer line). If unanticipated costs (for example, archeologi- cal clearance, environmental issues, right-of-way matters, etc.) cause the project costs for the sewer line to exceed the $2,800,000 authorized by this intergovernmental agreement, the parties will work out a supplemental agreement to address how the additional costs will be paid. RECOMMENDATION Staff recommends adoption of Resolution No. 2006-45, approving and authorizing the Mayor to execute the intergovernmental agreement with Pima County for the construction of the Marana Regional Airport Sewer Connection Project. A TT ACHMENT(S) Intergovernmental Agreement with Pima County SUGGESTED MOTION I move to adopt Resolution No. 2006-45. {00001883.DOC /} FJC/cds 3/14/05 MARAN A RESOLUTION NO. 2006-45 RELATING TO THE AIRPORT; APPROVING AND AUTHORIZING THE MAYOR TO EXE- CUTE AN INTERGOVERNMENTAL AGREEMENT WITH PIMA COUNTY FOR THE MA- RANA REGIONAL AIRPORT SEWER CONNECTION PROJECT. WHEREAS, the Town of Marana and Pima County desire to use a portion of the County bond funding authorized in May 2004 to construct a sewer connection from the Marana Regional Airport to a connection point in the existing sewer system at Sanders Road and the Santa Cruz River; and WHEREAS, the Mayor and Council of the Town of Marana feel it is in the best interests of the public to enter into this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the intergovernmental agreement between the Town of Marana and Pima County in substantially the form attached to and incorporated by this reference in this resolu- tion as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it or a substan- tially similar document for and on behalf ofthe Town of Marana. IT IS FUR THER RESOLVED that the Town's Manager and staff are hereby directed and au- thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives ofthe intergovernmental agreement. PASSED, ADOPTED, and APPROVED by the Mayor and Council ofthe Town of Maran a, Arizona, this 21 st day of March, 2006. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00001884.DOC /} FJC.'cds 3/14/06 INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN OF MARANA FOR THE MARANA REGIONAL AIRPORT SEWER CONNECTION PROJECT {OOOOI60I.DOC / 6} INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN OF MARANA FOR THE MARANA REGIONAL AIRPORT SEWER CONNECTION PROJECT This Agreement is entered into by and between PIMA COUNTY, a body politic and corpo- rate of the State of Arizona ("County") and the TOWN OF MARANA ("Town") pursuant to Arizona Revised Statutes (A.R.S.) Section 11-952. RECITALS A. The Parties are authorized by Arizona Revised Statutes section ("A.R.S. f') 11-952, et seq., to enter into agreements for joint and cooperative action. B. The County owns and operates a sewage system pursuant to A.R.S. S 11-264. C. The Town is authorized by A.R.S. S 9-240(B)(5)(a) to construct and maintain sewers. D. County and Town wish to cooperate in the design and construction of the Marana Re- gional Airport Sewer Connection Project (the "Project"). E. A Special Bond Election was held in Pima County on May 18, 2004 in which the citi- zens of Pima County voted to approve the issuance of Pima County General Obligation Bonds to fund various public projects. F. Pima County Ordinance No. 2004-18 as subsequently revised by Ordinance No. 2005-92 (the "Bond Ordinance") lists the Project as an approved 2004 bond-funded project (see section VII (F)(I)(b)(6.6) describing the Project). The Bond Ordinance allocates $2,800,000 in bond proceeds for the Project. This amount, less 2% which shall be retained by the County to recover a portion of the County's administrative costs associated with this project, shall be re- ferred to herein as the "Allocated Maximum Amount." G. The Project is currently estimated to cost approximately $2,800,000. H. Projects constructed in whole or in part with bond proceeds are subject to the guide- lines for bonding disclosure, accountability and implementation of County bond projects in other jurisdictions contained in Pima County Code Chapter 3.06 and in the Bond Ordinance. I. Town shall advertise, award, execute and administer the design and construction con- tracts for the Project, and turn it over to the County for ownership and operation. J. County will reimburse Town, in an amount not to exceed the Allocated Maximum Amount, for actual, documented Project-related expenses (other than Town's administrative costs) not reimbursed from other funding sources. K. Design of the Project is anticipated to begin immediately, and construction of the Pro- ject is currently scheduled to commence on or before August 1, 2006, subject to acquisition of all necessary permits, easements and environmental clearances, and is currently anticipated to be completed approximately six months after the start of construction. AGREEMENT Now THEREFORE, County and Town, pursuant to the above, and in consideration of the matters and things hereinafter set forth, do mutually agree as follows: {OOOO 160 1. DOC /6} 3/10/20062:51 PM Page 1 of 11 1. Purpose. The purpose of this Agreement is to set forth the responsibilities of the parties for the design, construction, maintenance and operation of the Project and to address legal and ad- ministrative matters among the parties. 2. Proiect. The Project consists of the design and construction of the Project as described in the Bond Ordinance: 6.6 Marana Re9ional Airoort Sewer Connection Location: Town of Marana from the airport located on Avra Valley Road to Sanders Road and the Santa Cruz River. Scope: Design and construct a sanitary sewerage conveyance system to serve the Marana Airport and vicinity. The conveyance system is conceptually planned to consist of a gravity outfall sewer from the Marana airport west to Sanders Road, then north to a pump station on the south bank of the Santa Cruz River. Sewage would be pumped from there, through a pressure line to an existing gravity sewer serving the Honea Heights Area. Benefits: Will assist the economic development program planned for the airport and its adjacent area. Cost: $2,800,000, with Administration being $56,000, Planning being $100,000, Design being $444,000, and Construction being $2,200,000. Bond Funding: $2,800,000 Other Funding: None identified at this time Project Duration: Design at 12 to 18 months and Construction at 15 to 30 months. Implementation Period: 1, 2, 3 Project Management: Pima County Wastewater Management Department, in close consultation with the Town of Marana. Future Operating and Maintenance Costs: In the first year after construction, the line is structurally under warranty. The operating and maintenance costs thereafter are approximately$2,OOO per mile per year, or $6,000 for the entire 3-mile reach. The costs are paid from Wastewater Management's budget, which is funded by user fees. 3. Design and Construction Responsibilities. The Town shall design and construct the Project in accordance with plans and specifications cooperatively reviewed and approved by the parties, as described below. a. Standards. Town shall design and construct the Project in compliance with all applica- ble building standards and codes, in compliance with Arizona Aquifer Protection Permit standards as provided at A.R.S. SS 49-241 through 49-252 and A.A.C. R18-9-101 through R18-9-403, in compliance with Title 34 of the Arizona Revised Statutes, and in a good and workmanlike manner. b. Public Art. The Pima County Board of Supervisors, by ratification of this Agreement, exempts the Project from the 1 % public art program set-aside provided for in Board of Su- pervisors Policy C3.3 and Pima County Administrative Procedure 3-16. This project qualifies {00001601.DOC / 6} 3/10/20062:51 PM Page 2 of 11 for said exemption under Exemption Criterion 2 of Procedure 3-16 in that it is an under- ground installation and, as a result, does not have high visibility or impact. c. Environmental Compliance. Town shall prepare and incorporate into the planning, de- sign, and construction of the Project, responses to all applicable local, state and federal envi- ronmental requirements, including but not limited to hydrologic and geotechnical investiga- tions, compliance with the Pima County Native Plant Preservation Ordinance, protection of species identified by the Arizona Game & Fish Department and the U.S. Department of Fish and Wildlife Service as being endangered, threatened, or of concern (such as the cactus fer- ruginous pygmy-owl), and compliance with the National Pollution Discharge Elimination System (including preparation of a Storm Water Pollution Prevention Plan). d. Cultural Resources. Town shall consider potential impacts to cultural and historical re- sources in the Project planning and design phases through inventory, evaluation and impact assessment, and seek to avoid impacts to these resources in accordance with applicable local, state, and federal historic preservation laws and regulations. If impacts are unavoidable, a mitigation treatment plan will be prepared in consultation with Pima County, the State His- toric Preservation Office, and other agencies as appropriate, and implemented prior to con- struction. 4. Design. a. Consultants. The Town will employ consultants to design the Project, and the Town shall prepare the contracts for design and choose the consultants. The Town shall have the usual rights of the owner of a public design contract, including the authority to approve changes and make payments, subject to coordination with the County, as described below. b. Design Standards and Features: Cooperation. County and Town shall meet to coordi- nate design standards (meaning the applicable codes and industry standards that apply to the Project) and design features (meaning the elements to be included in the Project) prior to the preparation of final plans and specifications. The parties shall work cooperatively to agree upon the Project design. County design and field personnel shall work with their counterparts in the Town for coordination purposes. Coordination shall include meetings and information exchanges between corresponding personnel at all levels for the Project. 5. Review of Bids: Termination Town has solicited statements of qualifications using a con- struction manager at risk form of contract for the Project as an element of the Town's Marana Regional Airport Terminal and Restaurant project, and, upon completion of the design docu- ments, will negotiate a guaranteed maximum price construction contract for the Project as a separate element of the overall Regional Airport Terminal and Restaurant project in compliance with Title 34 of the Arizona Revised Statutes. If the guaranteed maximum price is unacceptable to the Town or the County, the Town and County shall mutually decide whether to bid the Pro- ject separately as a standard design-bid-build project or to choose not to proceed in accordance with paragraph S.c below. a. County Review. Town shall provide County the opportunity to review and comment on any future solicitations for all construction contracts for the Project, including relevant scopes of work, prior to the issuance of such solicitations by Town. The Town will provide any documentation the County desires to see concerning the already completed construction manager at risk solicitation. {00001601.DOC /6} 3/10/20062:51 PM Page 3 of 11 b. Bids in Excess of Available Funds. If the lowest responsible bid exceeds the available funds for the Project, the parties shall conduct a joint review of the bids immediately follow- ing opening and consult upon a course of action. The parties may terminate this agreement by mutual consent. If the parties agree to continue with the Project at the higher cost, the Bond Ordinance and this Agreement will need to be amended as provided in Section 21 below. c. Division of Costs. If, upon joint review of the bids, the parties elect to not proceed with the Project and this Agreement is terminated by mutual consent (whether pursuant to para- graph 5.b above or otherwise), design costs incurred and any right-of-way costs as of that date shall be paid from bond funds, as appropriate. All other non-administrative costs in- curred prior to such termination shall be allocated equally to Town and County. 6. Construction. Town shall administer the construction contracts for the Project in accor- dance with the requirements of Title 34 and in accordance with the Construction Schedule (as defined below). Town shall have the usual rights of the owner ofa public construction contract. a. Construction Schedule. Town shall be responsible for preparing a construction sched- ule (the "Construction Schedule") showing the anticipated timing and duration of each stage of construction. A preliminary Construction Schedule shall be provided by Town to County within thirty days after recordation of this Agreement. A final Construction Schedule shall be established and provided to County within thirty days after award of the construction con- tract(s) by Town. This Construction Schedule may be combined with the Reimbursement Schedule described later in this Agreement. b. Change Orders and Amendments. Town shall consult with County on all requests for change orders and contract amendments with an estimated cost of more than $10,000, prior to approving or signing them. c. Contract Claims. Town shall afford County the opportunity to review and comment on all contract claims prior to resolution thereof. d. Signage. County shall have the right to install signage at the construction site in a loca- tion of its choosing, provided that the sign does not interfere with the construction, announc- ing that the Project is a County bond-funded project, and listing the names of the members of the Board of Supervisors. 7. Utility Relocations. Town shall coordinate all utility relocations for the Project. 8. Rights of Way and Construction Easements. Town shall acquire, either by purchase or through its power of eminent domain, all rights of way and construction easements necessary for the Project. 9. Right of Entry. Execution of this Agreement by the parties grants Town the right to enter upon County owned-property for the purpose of constructing the Project. 10. Proiect Permits. Town shall obtain any approval, permission or permits necessary for the Project. Each party shall cooperate with the other to obtain all permits necessary for completion of the Project and shall waive all fees associated with said permits. 11. Public Participation. County and Town shall cooperatively manage the public participa- tion processes for the Project. The Town shall coordinate all publicity or public participation ac- tivities with County and shall coordinate all public meetings on the Project in compliance with the Pima County Board of Supervisors Policy 3.5, Notification to Board of Supervisors of Public {00001601.DOC / 6} 3/10/20062:51 PM Page 4 of 11 Meetings to be Held in their District and Pima County Administrative Procedure 3.8, Implemen- tation of Pima County Policy 3.5, copies of which are attached hereto as Exhibit A. 12. County Contribution. Town shall acknowledge the County's contribution to the Project at any public participation event in a form approved by County. Examples of acceptable forms of recognition include, but are not limited to, signs, permanent plaques, opening ceremonies and press releases. 13. Proiect Manager and Representatives. Town shall furnish a Project Manager for the Pro- ject and County shall designate a representative (the "County Liaison") to be a liaison with the Project Manager during construction of the Project. 14. Disputes. If the Project Manager and County Liaison disagree on any aspect of the Pro- ject, the issue in dispute shall be submitted to the County Administrator and the Town's Manager for resolution. 15. Financing of the Proiect. County shall reimburse Town for Project expenses (which shall not include Town's administrative costs), in the manner set forth herein, up to the Maximum Al- located Amount, and according to the expense allocation in the Bond Ordinance. No County bond funds in excess of the amount set forth herein and in the Bond Ordinance may be expended for the Project without the prior amendment of the Bond Ordinance and this Agreement by the Board of Supervisors. If there are any unforeseen circumstances (such as excess costs incurred to address biological, archaeological or right of way issues), or if the construction cost of the pro- ject exceeds the bond amount the Parties will need to mutually deicide on how, or if, to proceed with the construction of the sewer line. 16. Reporting and Payment Responsibilities. a. Reimbursement Schedule. Town shall, within 30 days after recordation of this Agree- ment, submit to County a preliminary schedule (the "Reimbursement Schedule") showing the anticipated dates and amounts of requests from the Town for reimbursement of project ex- penses incurred and paid by the Town ("Reimbursement Requests"). A final reimbursement schedule shall be established and submitted within 30 days after award of the construction contrast(s). The Reimbursement Schedule may be combined with the Construction Schedule. b. Reimbursement Requests. Within ten days of the end of each month, starting on the date indicated in the Reimbursement Schedule, Town shall submit to County a Reimburse- ment Request, together with supporting documentation, in accordance with the Reimburse- ment Schedule, for Project expenses paid by Town since the last Reimbursement Request. As Project Manager, Town shall be responsible for verifying the accuracy of all invoices submit- ted by contractors, and shall, as part of its Reimbursement Requests, certify that said invoices have been paid by Town (less any retention held by Town) prior to requesting reimbursement from the County. c. Payment of Reimbursement Requests. County shall review each monthly Reimburse- ment Request and, if County does not approve the request, County shall notify Town of its disapproval, and the reason for it, within seven days after receipt of the Reimbursement Re- quest. If County does not disapprove the Reimbursement Request, County shall pay the Re- imbursement Request within 21 days after receipt of the Reimbursement Request (except as set forth below with respect to the final accounting and payment). {00001601.DOC /6} 3/10/20062:51 PM Page 5 of 11 d. Monthly Progress Reports. Each month, at the same time the Town submits its Reim- bursement Request, it shall also submit a progress report (the "Progress Report") in the for- mat shown on Exhibit B attached hereto. Town shall submit a Progress Report each month of the Project even if Town is not seeking reimbursement for the preceding month. e. Submittal of Reports. All Reimbursement Requests and Progress Reports shall be submitted to: Pima County Wastewater Management Attention: Marana Airport - Project Liaison 201 N. Stone, 8th Floor Tucson, Arizona 85701 f. Delays. Town shall promptly notify the County at any time that Town becomes aware of a potential Project delay that may cause a deviation from the Reimbursement Schedule and/or the Construction Schedule. In the event of any deviation from the Reimbursement Schedule, County and Town shall establish a new Reimbursement Schedule, consistent with Federal Treasury Regulations as provided in Paragraph 22 below. Upon notification by Town that work on the Project can resume at a mutually agreed upon time and in accordance with the amended Reimbursement Schedule approved by the parties, the County will resume re- imbursing Town for Project costs. g. Final Report & Accounting. Within 90 days after completion and final acceptance of the Project by Town, Town shall submit to County: (1) a final report describing the Project as constructed and summarizing its history (i.e., who designed, constructed, provided public art, funding sources, description of public participation, purpose and public benefit ofthe Project, etc.), along with photographs and final as built drawings; (2) a detailed final accounting statement of the funds expended on the Project, along with a final Reimbursement Request if needed. County shall have 15 days after receipt of this final accounting to disapprove the Re- imbursement Request. If County does not disapprove the Reimbursement Request, it shall pay the request within 45 days of receipt. 17. Regulation of the Proiect during Construction. Town shall have responsibility for and control over the Project during construction. 18. Inspection. County may inspect any portion of the Project construction for substantial compliance with drawings and specifications. Town shall allow official County representatives reasonable access to the Project site during construction. The Project Manager and County in- spectors will cooperate and consult with each other during Project construction. 19. Ownership of Improvements. Ownership and title to all materials, equipment and appur- tenances installed pursuant to this Agreement shall automatically vest in County. 20. Operation. The Pima County Board of Supervisors, by ratification of this Agreement, waives the Pima County Code Section 3.06.090(A)(1) requirement that Town operate and main- tain the Project for a period of not less than twenty-five (25) years. 21. Amendment of the Bond Ordinance. The Town shall notify the County of any events that would require an amendment of the Bond Ordinance, and shall formally request the County Board of Supervisors that they hold a public hearing on the requested amendment. The parties shall follow the procedures for amendment of the Bond Ordinance set forth in Chapter 3.06 of the Pima County Code, as it may be amended or renumbered from time to time, and Section {OOOO 160 1. DOC /6} 3/10/20062:51 PM Page 6 of 11 IV(B) of the Bond Ordinance. In the event the Board of Supervisors does not approve the Town's request for a Bond Ordinance amendment, the Town shall complete the Project as de- fined by the Bond Ordinance and this Agreement. 22. Federal Treasury Regulations. Town acknowledges that Pima County manages the ex- penditures of bond proceeds in order to qualify for a spending exception to the arbitrage rebate requirements of Sections 148 through 150 of the Internal Revenue Code of 1986 and the related regulations found in 26 CFR Part 1, ~~1.148 through 1.150 as may be modified from time to time (such statutes and regulations hereinafter referred to as the "Tax Exempt Bond Rules"). Town acknowledges that arbitrage rebate is affected by both the use of bond proceeds and by the timing of bond related expenditures. Notwithstanding any other provision of this Agreement, County may, in County's sole discretion, either (i) reallocate Project funds to other projects funded with County bonds, or (ii) terminate this Agreement as set forth in Paragraph 23.b.iii be- low if, in County's sole determination, such reallocation or termination is necessary or advanta- geous to the County under the Tax Exempt Bond Rules either (a) to qualify for a spending ex- ception to the arbitrage rebate requirements, or (b) to reduce the amount of any potential arbi- trage rebate or penalty, or ( c) to manage the County's bond proceeds. 23. Term and Termination. a. Term. The term of this Agreement shall begin on the date this Agreement is recorded with the Pima County Recorder, and shall end on the date that is one year after completion and acceptance of the Project. The term of this Agreement may be extended by action of the parties. b. Termination. This Agreement may be earlier terminated under the following circum- stances: i. For Cause. A party may terminate this Agreement for material breach of the Agreement by the other party. Prior to any termination under this paragraph, the party al- legedly in default shall be given written notice by the other party of the nature of the al- leged default. The party said to be in default shall have 45 days to cure the default. If the default is not cured within that time, the other party may terminate this Agreement. Any such termination shall not relieve either party from liabilities or costs already incurred under this Agreement. ii. Conflict of Interest. This Agreement can be terminated for a conflict of interest as set forth in A.R.S. ~ 38-511, the relevant portions of which are hereby incorporated by reference. iii. Arbitrage Rebate Requirements. The County reserves the right to cease payments to Town and unilaterally terminate this Agreement if County determines, in County's sole discretion, that any action or inaction on the part of Town is likely to occur that would adversely affect the election made by the County under the Tax Exempt Bond Rules relating to exceptions for arbitrage rebate. c. Legal Authority. Neither party warrants to the other its legal authority to enter into this Agreement. If a court, at the request of a third person, should declare that either party lacks authority to enter into this Agreement, or any part of it, then the Agreement, or parts of it af- fected by such order, shall be null and void, and no recovery may be had by either party against the other for lack of performance or otherwise. {00001601.DOC /6} 3110/20062:51 PM Page 7 of 11 d. Ownership of Proiect upon Termination. Any termination of this Agreement shall not relieve any party from liabilities or costs already incurred under this Agreement, nor affect any ownership of the Project constructed pursuant to this Agreement. 24. Indemnification. To the fullest extent permitted by law, each party to this Agreement shall indemnify, defend and hold the other party, its governing board or body, officers, depart- ments, employees and agents, harmless from and against any and all suits, actions, legal or ad- ministrative proceedings, claims, demands, liens, losses, fines or penalties, damages, liability, interest, attorney's, consultant's and accountant's fees or costs and expenses of whatsoever kind and nature, resulting from or arising out of any act or omission of the indemnifying party, its agents, employees or anyone acting under its direction or control, whether intentional, negligent, grossly negligent, or amounting to a breach of contract, in connection with or incident to the per- formance of this Agreement. a. Preexisting conditions. To the fullest extent permitted by law, Town shall indemnify, defend and hold County, its boards, officers, departments, employees and agents, harmless from and against any claims and damages, as fully set out above, resulting from or arising out of the existence of any substance, material or waste, regulated pursuant to federal, state or lo- cal environmental laws, regulations or ordinances, that is present on, in or below or origi- nated from property owned or controlled by the Town prior to the execution of this Agree- ment. b. Notice. Each party shall notify the other in writing within 30 days of the receipt of any claim, demand, suit or judgment against the receiving party for which the receiving party in- tends to invoke the provisions of this Section. Each party shall keep the other party informed on a current basis of its defense of any claims, demands, suits, or judgments under this Sec- tion. c. Negligence of indemnified party. The obligations under this Article shall not extend to the negligence of the indemnified party, its agents or employees. d. Survival of termination. This Article shall survive the termination, cancellation, expira- tion or revocation, whether in whole or in part, of this Agreement. 25. Insurance. When requested, a party shall provide the other party with proof of its worker's compensation, automobile, accident, property damage, and liability coverage or pro- gram of self-insurance. 26. Books and Records. Town shall keep and maintain proper and complete books, records and accounts of the Project. For bond purposes, the Project books and records must continue to be maintained for a period of three years after final payment of the bonds issued for the Project. The bonds funding the Project are expected to be fully paid by June 30, 2020, but may be subject to refunding. Town shall have the option of maintaining either, (i) the Project books and records for the requisite number of years, or (ii) conveying the Project books and records to County at any time after the Project is completed. The books, records and accounts of the Project shall be available for inspection and audit by duly authorized representatives of County at all reasonable times during the period in which said books, records and accounts are maintained by the Town. Unless Town conveys all Project books and records to County, Town shall indemnify and hold the County harmless from and against any amount required to be paid to the Internal Revenue Service or any governmental entity or agency arising out of the failure by Town to maintain such records. {OOOO 160 I. DOC / 6} 3/10/20062:51 PM Page 8 of 11 27. Inspection and Audit. The County may perform an inspection ofthe Project or an audit of Town's books and records at any time in order to verify that monies spent on the Project were done so in accordance with this Agreement. 28. Construction of Agreement. a. Entire Agreement. This instrument constitutes the entire agreement between the parties pertaining to the subject matter hereof, and all prior or contemporaneous agreements and un- derstandings, oral or written, are hereby superseded and merged herein. b. Amendment. This agreement shall not be modified, amended, altered or changed ex- cept by written agreement signed by the parties. c. Construction and Interpretation. All provisions of this Agreement shall be construed to be consistent with the intention of the parties as expressed in the recitals hereof d. Captions and Headings. The headings used in this Agreement are for convenience only and are not intended to affect the meaning of any provision of this Agreement. e. Severability. In the event that any provision of this Agreement or the application thereof is declared invalid or void by statute or judicial decision, such action shall have no ef- fect on other provisions and their application which can be given effect without the invalid or void provision or application, and to this extent the provisions of the Agreement are sever- able. In the event that any provision of this Agreement is declared invalid or void, the parties agree to meet promptly upon request of the other party in an attempt to reach an agreement on a substitute provision. 29. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or ex- tending the legal jurisdiction of County or Town. 30. No Joint Venture. It is not intended by this Agreement to, and nothing contained in this Intergovernmental Agreement shall be construed to, create any partnership, joint venture or em- ployment relationship between the parties or create any employer-employee relationship between County and any Town employees, or between Town and any County employees. No party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, includ- ing (without limitation) the other party's obligation to withhold Social Security and income taxes for itself or any of its employees. 31. No Third Party Beneficiaries. Nothing in this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement, or affect the legal liability of any party to this Agreement, by imposing any standard of care with respect to the maintenance of public facilities different from the standard of care imposed by law. 32. Compliance with Laws. The parties shall comply with all applicable federal, state and lo- cal laws, rules, regulations, standards and executive orders, without limitation to those desig- nated within this Agreement. a. Anti-Discrimination. The provisions of A.R.S. S 41-1463 and Executive Order 75-5, as amended by Executive Order 99-4, issued by the Governor of the State of Arizona are incor- porated by this reference as a part of this Intergovernmental Agreement as if set forth in full herein. {OOOO 160 1. DOC / 6} 3/10/20062:51 PM Page 9 of 11 b. Americans with Disabilities Act. This Agreement is subject to all applicable provisions of the Americans with Disabilities Act (Public Law 101-336,42 D.S.C. ~ 12101-12213) and all applicable federal regulations under the Act, including 28 CFR Parts 35 and 36. c. Compliance with Bond Requirements. Town agrees to comply with all applicable pro- visions of Pima County Code Chapter 3.06, "Bonding Disclosure, Accountability, and Im- plementation" and of the Bond Ordinance, as they now exist or may hereafter be amended. Any reports to be submitted by Town to County in compliance with Pima County Code Chapter 3.06 or the Bond Ordinance shall be provided in a format and schedule determined by County. 33. Waiver. Waiver by any party of any breach of any term, covenant or condition herein contained shall not be deemed a waiver of any other term, covenant or condition, or any subse- quent breach of the same or any other term, covenant, or condition herein contained. 34. Force Majeure. A party shall not be in default under this Agreement if it does not fulfill any of its obligations under this Agreement because it is prevented or delayed in doing so by rea- son of uncontrollable forces. The term "uncontrollable forces" shall mean, for the purpose of this Agreement, any cause beyond the control of the party affected, including but not limited to fail- ure of facilities, breakage or accident to machinery or transmission facilities, weather conditions, flood, earthquake, lightning, fire, epidemic, war, riot, civil disturbance, sabotage, strike, lockout, labor dispute, boycott, material or energy shortage, casualty loss, acts of God, or action or non- action by governmental bodies in approving or failing to act upon applications for approvals or permits which are not due to the negligence or willful action of the parties, order of any govern- ment officer or court (excluding orders promulgated by the parties themselves), and declared lo- cal, state or national emergency, which, by exercise of due diligence and foresight, such party could not reasonably have been expected to avoid. Either party rendered unable to fulfill any ob- ligations by reason of uncontrollable forces shall exercise due diligence to remove such inability with all reasonable dispatch. 35. Notification. All notices or demands upon any party to this agreement shall be in writing, unless other forms are designated elsewhere, and shall be delivered in person or sent by mail ad- dressed as follows: Pima County Administrator 130 West Congress Tucson, AZ 85701 Town Manager, Town of Marana 11555 West Civic Center Drive Marana, AZ 85653 36. Remedies. Any party may pursue any remedies provided by law for the breach of this Agreement. No right or remedy is intended to be exclusive of any other right or remedy and each shall be cumulative and in addition to any other right or remedy existing at law or in equity or by virtue of this Agreement. {00001601.DOC / 6} 3/10/20062:51 PM Page 10 of 11 IN WITNESS WHEREOF, County has caused this Agreement to be executed by the Chair of its Board of Supervisors, upon resolution of the Board and attested to by the Clerk of the Board, and the Town has caused this Agreement to be executed by the Mayor upon resolution of the Mayor and Council and attested to by its Clerk. ATTEST: TOWN: Jocelyn Bronson, Town Clerk Ed Honea, Mayor ATTEST: PIMA COUNTY: Lori Godoshian Clerk of the Board Chairman of the Board of Supervisors FOR TOWN: APPROVED AS TO CONTENT: FOR PIMA COUNTY W ASTEW A TER MANAGEMENT: Charles Mangum, Airport Director Michael Gritzuk, Director FOR PIMA COUNTY FINANCE DEPARTMENT: Thomas E. Burke, Director INTERGOVERNMENTAL AGREEMENT DETERMINATION The foregoing Intergovernmental Agreement between Pima County and the Town has been re- viewed pursuant to A.R.S. S 11-952 by the undersigned, each of whom has determined that it is in proper form and is within the powers and authority granted under the laws of the State of Ari- zona to the party represented by the him/her. Pima County: Deputy County Attorney Date Town of Marana: Frank Cassidy, Town Attorney Date {OOOO 160 l.OOC / 6} 3/10/20062:51 PM Page 11 of 11