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HomeMy WebLinkAbout05/17/2006 Blue Sheet IGA for Rattlesnake Park TOWN COUNCIL MEETING INFORMATION MEETING DATE: May 17,2006 TOWN OF MARANA AGENDA ITEM: J.2 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Resolution No. 2006-67: Relating to Parks & Recreation; approv- ing and authorizing the Mayor to execute an intergovernmental agreement with Pima County for the Santa Cruz River Park! Rat- tlesnake Park Project. DISCUSSION Pima County 2004 Bond Project FC5.09 ("Santa Cruz River Park in the Vicinity of Continental Ranch") and 1997 Bond Project P-44 ("Marana Rattlesnake Park") authorized by the voters in May 2004 and May 1997 bond elections authorize a total of $4,500,000 in County bond funding for the construction of bank protection, linear park improvements, and regional park improve- ments at the Silverbell-Cortaro District Park. This proposed intergovernmental agreement estab- lishes the obligations of the Town and the County in connection with these bond-funded im- provements. In general, this intergovernmental agreement requires the Pima County Flood Con- trol District to construct and maintain bank protection elements of the projects, and for the Town of Marana to construct and maintain linear park and district park elements of the projects. RECOMMENDATION Staff recommends adoption of Resolution No. 2006-67, approving and authorizing the Mayor to execute the intergovernmental agreement with Pima County for the construction of the Santa Cruz River Park! Rattlesnake Park Project. ATTACHMENT(S) Intergovernmental Agreement with Pima County SUGGESTED MOTION I move to adopt Resolution No. 2006-67. {00002083.DOC /} FJClcds 3/14/05 MARANA RESOLUTION NO. 2006-67 RELATING TO PARKS & RECREA nON; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT WITH PIMA COUNTY FOR THE SANTA CRUZ RIVER P ARK/RATTLESNAKE PARK PROJECT. WHEREAS, the 1997 and 2004 Pima County bonds authorized a total of$4,500,000 for the "Santa Cruz River Park in the Vicinity of Continental Ranch" and "Marana Rattlesnake Park" pro- jects; and WHEREAS, these projects are carried out in the intergovernmental agreement between Pima County, the Pima County Flood Control District and the Town of Marana which is the subject ofthis resolution; and WHEREAS, the Mayor and Council ofthe Town of Maran a feel it is in the best interests of the public to enter into this intergovernmental agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the intergovernmental agreement between Pima County, the Pima County Flood Control District and the Town of Maran a in substantially the form attached to and in- corporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it or a substantially similar document for and on behalf of the Town of Marana. IT IS FURTHER 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 of the intergovernmental agreement. PASSED, ADOPTED, and APPROVED by the Mayor and Council of the Town of Maran a, Arizona, this 17th day of May, 2006. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Frank Cassidy, Town Attorney Jocelyn C. Bronson, Town Clerk {00002084.DOC I} FJC 51/512006 4:26 PM Intergovernmental Agreement Between Pima County, Regional Flood Control District and the Town of Marana for the Santa Cruz River Park in v the Vicinity of Continental Ranch May 2004 Bond FC5.09 Project and May 1997 Marana Rattlesnake Park P-44 Project This Agreement is entered into by and between Pima County, a body politic and corporate of the State of Arizona ("County"), Regional Flood Control District "District", and the Town of Marana ("Town") pursuant to Arizona Revised Statutes (A.R.S.) Section 11-952. Recitals A. County is authorized by A.R.S. ~ 11-251 and 11-934 to order construction, reconstruction or acquisition of drainageways and channels, and parks and trail systems. B. District is authorized by A.R.S. ~ 48-3603 to order construction, reconstruction or acquisition of drainageways, channels and other flood control structures. C. Town is authorized by A.R.S. ~ 48-572(5) and 9-276 to order construction, reconstruction or acquisition of drainageways and channels, and parks and trail systems. D. County, District, and Town wish to cooperate in the design and construction of the Santa Cruz River Bank Protection Project, River Park Project, and the associated Rattlesnake Park Project in the Vicinity of Continental Ranch to provide for drainage, channel improvements and trails and recreation. (the Projects"). County, District, and Town may contract for services and enter into agreements with one another for joint or cooperative action pursuant to A.R.S. ~ 11-952. E. A Special Bond Election was held in Pima County on May 18, 2004 and in May 20, 1997 in which the citizens 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 and Ordinance 1997-35 as subsequently amended by Ordinance Nos. 1998-58,2001-111, and 2004-15 (the "Bond Ordinances") lists the Project as an approved 2004 bond-funded project (see Form IGA 2004 Bond Projects Rev. 2-18-05 1 May 18, 2004 Question Nwnber 5 River Parks and Flood Control Improvement, Project FC5.09, Santa Cruz River in the Vicinity of Continental Ranch (Bank Protection Project and River Park Project), and the May 20, 1997 Question 3 Parks, Project P-44 Rattlesnake Park (park Project). The Bond Ordinances allocates $4,000,000 for FC5.09 consisting of $2,000,000 for the Bank Protection Project and $2,000,000 for the River Park Project, and $500,000 for P-44 in bond proceeds for the Park Project. This amount, less 2.5%, which shall be retained by the County to recover a portion ofthe County's administrative costs associated with this project, shall be referred to herein as the "Allocated Maximum Amount." G. The Projects are-currently estimated to cost approximately $7,230,000 for FC5.09 and $500,000 for PM. Other funding sources are a grant to the Town of Maran a from the Arizona Department of Transportation for $998,000, the Regional Flood Control District for Cottaro Mesquite Bosque, and developer impact fees collected by the Town including those collected pursuant to Intergovernmental Agreement No.O 1-04-M'-123994-0198 and subsequent amendments. Projects constructed in whole or in part with bond proceeds are subject to the guidelines 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. H. Town and District shall advertise, award, execute and administer the design and construction contracts for their respective Projects and shall, after completion of the Project, operate and maintain it for the purposes described in the Bond Ordinance for at least twenty-five years. I. County will reimburse District and Town in an amount not to exceed the Allocated Maximum Amount, for actual, documented Project-related expenses (other than District's and Town's administrative costs) not reimbursed from other funding source. J. Construction of the Projects are currently scheduled to commence on or before May 1, 2006, subject to acquisition of all necessary pennits, easements and environmental clearances, and is currently estimated to be completed approximately 36 months after the start of construction. Alrreement NOW THEREFORE, County, District and Town, pursuant to the above, and in consideration of the matters and things hereinafter set forth, do mutually agree as follows: 1. Purpose. Thepurpose 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 administrative matters among the parties. Form IGA 2004 Bond Projects Rev. 2-18-05 2 2. Projects. The Projects consist of the design and construction of the following Projects as described in the Bond Ordinance: a The Town is developing construction plans and specifications for bank protection on the west bank of this segment of the Santa Cruz River between Ina Road and Cortaro Road (Bank Protection Project), as part of the development of the River Park Project and a regional park (Park Project) that was authorized in Pima County's 1997 General Obligation Bond election. The County is providing bond funding for the park and bank protection. b. The Town of Maran a is also working with ADOT to construct a paved and a decomposed granite pathway along the western low flow bank of the Santa Cmz River beginning south of Cortaro Road and ending north of the proposed Twin Peaks Road and the FCD Cortaro Mesquite Bosque Project. ADOT will provide $998,000 of the total estimated project cost of $1 ,200,000 from the Marana Shared Use Pathway Concept Project. c. The Project includes construction of an underpass ramp at Cortaro Road, landscaping and irrigation along the pathways, and associated river park infrastructure. This proposal includes the construction costs for the bank protection, and the cost of developing a landscape linear park along side the bank protection that would connect with the Marana Shared Use Pathway. 3. Uesign and Construction Responsibilities. The Town shall design and construct the Santa Cruz River Park Project and the Rattlesnake Park Project including the river trails and pathways in accordance with the plans and specifications cooperatively reviewed and approved by the parties, as described below. District shall be responsible for construction oithe Santa Cruz River Bank Protection Project improvements and associated flood control features as designed and permitted by the Town. a. Standards. District and Town shall design and construct these Projects in compliance with all applicable building standards and codes, in compliance with Title 34 of the Arizona Revised.Statutes, and in a good and workmanlike manner. b. Public Art. Town shall manage the Pima County Public Art Program for the Project in compliance with the Pim~ County Board of Supervisors Policy C3.3 and Pima County Administrative Procedure 3-16. Form lOA 2004 Bond Projects Rev. 2-18-05 3 c. Environmental Compliance. Town shall prepare and incorporate into the planning, design, and construction of the Project, responses to all applicable local, state and federal environmental requirements, including but not limited to hydrologic and geotechnical investigations, compliance with the Pima County Native Plant Preservation Ordinance, protection of species identified by the Arizona Game & Fish DepartlIlel1t and the U.S. Depaitnient ofFish and Wildlife Service as being endangered, threatened, or of concern (such as the cactus ferruginous 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 resources 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 Historic Preservation Office, and other agencies as appropriate, and implemented prior to construction. 4. Design. a. Consultants. If consultants are employed to design any portion of these Projects, 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 and District shall meet to coordinate design standards (meaning the applicable codes and industry standards that apply to these Projects) 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 and District for coordination purposes. Coordination shall include meetings and information exchanges between corresponding personnel at all levels for these Projects. 5. Review of Bids; Termination. District shall solicit bids, and award construction contracts for the Bank Protection Project and the Town shall solicit bids, and award construction contracts for River Park and Park Projects and improvements in compliance with Title 34 of the Arizona Revised Statutes. a. County Review. Town and District shall provide County and each other the opportunity to review and comment on the solicitations for all construction contracts for these Projects, including relevant scopes of work, prior to the issuance of such solicitations by Town. Form IGA 2004 Bond Projects Rev. 2-18-05 4 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 following 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 paragraph (a) above, or otherwise), the costs incurred prior to such termination shall be allocated equally to Town, District and County. 6. Construction. Town and District shall administer their respective construction contracts for their Project in accordance with the requirements of Title 34 and in accordance with the Construction Schedule (as defmed below). Town and District shall have the usual rights of the owner of a public construction contract. a. Construction Schedule. For their respective projects, Town and District shall be responsible for preparing a construction schedule (the "Construction Schedule") showing the anticipated timing and duration of each stage of construction. A preliminary Construction Schedule shall be provided by Town and District, for their respective projects, 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 contract(s) by Town and District. This Construction Schedule may be combined with the Reimbursement Schedule described later in this Agreement. b. Change Orders and Amendments. Town and District shall consult with County, for their respective projects, 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 and District, for their respective projects, 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 location of its choosing, provided that the sign does not interfere with the construction, announcing that the Project is a County bond-funded project, and listing the names of the members of the Board of Supervisors. 7. Utility Relocations. For their respective projects, Town and District shall coordinate all utility relocations for the Project. Form IGA 2004 Bond Projects Rev. 2-18-05 5 8. Rights of Way and Construction Easements. For their respective projects, the District and the Town shall acquire, either by purchase or through its power of eminent domain, all rights of way and construction easements necessary for the Project. Town shall acquire, either by purchase or through its power of eminent domain, all rights of way and construction easements necessary for that portion of the Project that are associated with park improvements and District shall acquire, either by purchase or through its power of eminent domain, all rights of way and construction easements necessary for that portion of the flood control improvements along the Santa Cruz River. Each party shall share with the other any records or documents in its possession that will assist the other party in the acquisition of any 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 and District owned-property for the purpose of constructing the Project, and grants the County and the District the right to enter upon property owned by the Town for the purposes of inspection of the Project as set forth herein. 10. Project Permits. Town shall obtain any approval, permission or permits necessary for the Project. Each party shall cooperate with the other to obtain all pennits necessary for completion of the Project and shall waive all fees associated with said pennits. 11. Public Participation. County and Town shall cooperatively manage the public participation processes for the Project. The Town shall coordinate all publicity or public participation activities 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 o/Supervisors of Public Meetings to be Held in their District and Pima County Administrative Procedure 3.8, Implementation of Pima County Policy 3.5, copies of which are attached hereto as Exhibit A. 12. County Contribution. Town and District shall acknowledge the County's contribution to the Project at any public participation event in a fonn approved by County. Examples of acceptable fonns of recognition include, but are not limited to, signs, permanent plaques, opening ceremonies and press releases. 13. Project Manager and Representatives. Town and District, for their respective projects, shall furnish a Project Manager for the Project and County shall designate a representative (the "County Liaison") to be a liaison With the Project Manager during construction of the Project. 14. Disputes. In the event the Project Manager and County Liaison disagree on any aspect of the Project, the issue in dispute shall be submitted to the County Administrator, representing the County and District, and the Town's Mayor for resolution. 15. Financing of the Project. County shall reimburse Town and District, for their respective projects, for Project expenses (which shall not include Town's and Form lOA 2004 Bond Projects Rev. 2-18-05 6 District's administrative costs), in the manner set forth herein, upto the Maximum. Allocated Amount, and according to the expense allocation in the Bond Ordinance. No County bond fuUds in excess of the amount set forth herein and in the Bond OrdiIiance may be expended for the Project without the prior amendment of the Bond Ordinance and this Agreement by the Board of Supervisors. Town and District shall pay all costs of the Project in excess of the Allocated Maximum Amount described in the Recitals ~ 16. Reporting and Payment Responsibilities. a. Reimbursement Schedule. town and District, for their respective projects, shall, within thirty (30) days afteuecordation of this Agreement, submit to County a preliminary schedule (the "Reimbursement Schedule") showing the anticipated dates and amounts of requests from the Town and District for reimbursement of project expenses incurred and paid by the Town and District ("Reimbursement Requests"). A fmal reimbursement schedule shall be established and submitted within thirty (30) days after award of the construction contrast(s). The Reimbursement Schedule may be combined with the Construction Schedule. b. Reimbursement Requests. Within 10 days of the end of each month, starting on the date indicated in the Reimbursement Schedule, Town and District shall submit to County a Reimbursement Request, for their respective projects, together with supporting documentation, in accordance with the Reimbursement Schedule, for Project expenses paid by Town and District since the last Reimbursement Request. As Project Manager, Town and District shall be responsible for verifying the accuracy of all invoices submitted by contractors, and"shall, as part of its Reimbursement Requests, certify that said invoices have been paid by Town and District (less any retention held by Town or District) prior to requesting reimbursement from the County. c. Payment of Reimbursement R,equests. County shall review each monthly Reimbursement Request and, if County does not approve the request, County shall notify Town and District of its disapproval, and the reason for it, within seven (7) days after receipt of the Reimbursement Request. If County does not disapprove the Reimbursement Request, County shall pay the Reimbursement Request within twenty-one (21) days after receipt of the Reimbursement Request (except as set forth below with respect to the fmal accounting and payment). d. Monthly Progress Reports. Each month, at the same time the Town and District submit the Reimbursement Request, for their respective projects, it shall also submit a progress report (the "Progress Report") in the format shown on Exhibit B attached hereto. Town and District shall submit a Progress Report.each month of the Project even if Town and District is not seeking reimbursement for the preceding month. Form IGA 2004 Bond Projects Rev. 2-18-05 7 e. Submittal of Reports. All Reimbursement Requests and Progress Reports shall be submitted to: Pima County CIP Coordinator 201 N. Stone, 6th Floor Tucson, Arizona 85701 f. Delays. For their respective projects, Town and District shall promptly notify the County at any time that Town and District 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 and District shall establish a new Reimbursement Schedule, consistent with Federal Treasury Regulations. Upon notification by Town and District 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 reimbursing Town and District for Project costs. g. Final Report & Accounting. Within ninety (90) days after completion and fmal acceptance of their respective Projects by Town and Distri-ct, Town and District shall submit to County: (1) a fmal 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 of the Project, etc.), along with photographs and final as built drawings; (2) a detailed fmal accounting statement of the funds expended on the Project, along with a final Reimbursement Request if needed. County shall have fifteen (15) days after receipt of this fmal accounting to disapprove the Reimbursement Request. If County does not disapprove the Reimbursement Request, it shall pay the request within forty-five (45) days of receipt. 17. Regulation of the Project during Construction. For their respective projects, Town and District shall have responsibility for and control over the Project during construction. 18. Inspection. County may inspect any portion of the Projects construction for substantial compliance with drawings and specifications. Town and District shall allow official County representatives reasonable access to the Project site during construction. The Project Manager and County inspectors will cooperate and consult with each other during Project construction. 19. Ownership of Improvements. Ownership and title to all materials, equipment and appurtenances installed pursuant to this Agreement shall automatically vest in Town for park improvements and District for bank protection and flood control improvements. Town and District hereby agrees not to dispose of or encumber its title or other interest in the Project improvements for a period of twenty-five (25) years following the date the Project is completed. This Section shall survive termination, cancellation, expiration or revocation, whether in whole or in part, of this Agreement. Form lOA 2004 Bond Projects Rev. 2-18-05 8 20. Operation. For at least twenty-five years following completion of the Project, Town and District shall for their respective Project elements: (1) operate and maintain the Project improvements for the purposes set forth in the description of the Project in the Bond Ordinance for the benefit of the public; (2) insure the Project improvements (through either direct or self-insurance coverage); (3) maintain, repair and if necessary replace the Project improvements; (4) make the Project improvements available to all the residents of Pima County without restriction or preference to jurisdiction of residence; and (4) not charge a fee for use of the Project improvements that is more than a fee charged by the County for a similar purpose. This Section shall survive termination, cancellation, expiration or revocation, whether in whole or in part, of this Agreement. ~ 21. Amendment of the Bond Ordinance. The Town and District 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 IV(B) of the Bond Ordinance In the event the Board of Supervisors does not approve the Town's and District's request for a Bond Ordinance amendment, the Town and District shall complete the Project as defmed by the Bond Ordinance and this Agreement. 22. Federal Treasury Regulations. Town and District acknowledges that Pima County manages the expenditures 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 and District 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) below, if, in County's sole determination, such reallocation or termination is necessary or advantageous to the County under the Tax Exempt Bond Rules either (a) to qualify fora spending exception to the arbitrage rebate requirements, or (b) to reduce the amount of any potential arbitrage rebate or penalty, or (c) to manage the County's bond proceeds. 23. Term and Termination. a. Term. The term of this Agreement 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 twenty-five (25) years after completion and acceptance of the Project. The term of this Agreement may be extended by action of the parties. Form IGA 2004 Bond Projects Rev. 2-18-05 9 b. Termination. This Agreement may be earlier terminated under the following . circumstances: ~ 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 allegedly in default shall be given written notice by the other party of the nature of the alleged default. The party said to be in default shall have forty-five (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. . . 11. 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 District and unilaterally terminate this Agreement if County determines, in County's sole discretion, that any action or inaction on the part of Town and District 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 affected 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. d. Ownership of Project 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, departments, employees and agents, harmless from and against any and all suits, actions, legal or administrative 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 performance of this Agreement. Form IGA 2004 Bond Projects Rev. 2-18-05 10 a. Preexisting conditions. To the fullest extent permitted by law, Town and District 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 . arty substance, material or waste, regulated pursuant to federal, state or local envitoi1nientallaws, regulations or ordinances, that is present on, in or below or originated from propertY owned or controlled by the Town and District prior to the execution of this Agreement. b. Notice. Each party shall notify the other in writing within thirty (30) days of the receipt of any claim, demand, suit or judgment against the receiving party for which the receiving party intends 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 Section. 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, expiration 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 program of self-insurance. 26. Book and Records. Town and District shall keep and maintain proper ap.d 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 (3) years after fmal payment of the bonds issued for the Project. The bonds funding the Project are expected to be fully paid by June 30, 2022, but may be subject to refunding. Town and District 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 and District. Unless Town and District conveys all Project books and records to County, Town and District shall indemnify and hold the County harmless from and against any amount required to be paid to the Internal Revenue Service or any governmental Town and District or agency arising out of the failure by Town and District to maintain such records. 27. Inspection and Audit. The County may perform an inspection of the Project or an audit of Town and District 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. Form IGA 2004 Bond Projects Rev. 2-18-05 11 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 understandings, oral or written, are hereby superseded and merged herein. b. Amendment.. This agreement shall not be modified, amended, altered or changed except 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 effect 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 severable. 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 extending the legal jurisdiction of County or Town and District. 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 employment relationship between the parties or create any employer-employee relationship between County and any Town and District employees, or between Town and District and any County employees. No party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including (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 local laws, rules, regulations, standards and executive orders, without limitation to those designated within this Agreement. Form IGA 2004 Bond Projects Rev. 2-18-05 12 a. Anti-Discrimination. The provisions of A.R.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 incorporated by this reference as. a part of this Intergovernmental Agreement as if set forth in full herein. b. Americans with Disabilities Act. This Agreement is subject-to all applicable provisions of the Americans with Disabilities Act (public Law J01..;336, 42 V.S.C. 12101-12213)ahd all applicable federal regulations under the Act, including 28 CFRParts 35 and 36. c. Compliance with Bond Requirements. Town and District agrees to comply with all applicable provisions of Pima County Code Chapter 3.06, "Bonding Disclosure, Accountability, and hnp1ementation" and of the Bond Ordinance,. as they now exist or may hereafter be amended. Any reports to be submitted by Town and District 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 subsequent 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 reason 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 failure 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 government officer or court (excluding orders promulgated by the parties themselves), and declared local, 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 obligations 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 addressed as follows: 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 Form IGA 2004 Bond Projects Rev. 2-18-05 13 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. :'} t ~' 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, a.1ldthe Town and District 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 OF MARANA: J Town Clerk ATTEST: PIMA COUNTY: Lori Godoshian Clerk of the Board Richard Elias, Chairman Board of Supervisors ATTEST: PIMA COUNTY FLOOD CONTROL DISTRICT: Lori Godoshian Clerk of the Board Richard Elias, Chairman Board of Directors APPROVED AS TO CONTENT: Michael A. Reuwsaat Town Manager 2J~ Shields, Director Flood Control District ~~~ Pima County Finance Form IGA 2004 Bond Projects Rev. 2-18-05 14 Intergovernmental Agreement Determination The foregoing Intergovernmental Agreement between Pima County, and the Town and District has been revieWed pursuant to A.R.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 Arizona to the party represented by thehim/her. !IiJ;;=- . ~u~ un~ A~mey flzrlt6 Date Town OF MARANA: Form IGA 2004 Bond Projects Rev. 2-18-05 15 (X)q ()tf1Jfi EXHIBIT A ~,"",,,';,..";;;,,,,,,,,,,,,,,,,,,'_'_'.L"'_<'","M._._,_~.._.,,... . ..t ADMINISTRATIVE PROCEDURES Et'fective Date: 01/17/1995 Revision Date: 05/30/2003 Cf,~" Countv~~mlnistrator. J- -----------------------------~--~---~-----------------~---------------------------------------- SUBJECT: NOTIFICATION TO BOARD OF SUPERYISO~S,OF PUBLIC MEETINGS TO BE 'HELD IN THEIR DisTRICT '. . . . . Proced~re Number: 3-8 ----------------------------------------------------------------------------------------------- DEPARTMENT RESPONSIBLE: Office of the County Administrator I. PURPOSE The purpose of this administrative procedure is to establish the process for implementing the Board of Supervisors policy making all Pima County department administrators, directors and managers responsible to provide advance notification to members of the Board of Supervisors of all County-related public meetings which are . scheduled to be held within their districts. . II. PROCEDURE A. Responsible Party Ensuring compliance with the requirements of prior notification .shall be the responsibility of the department administrator, director, or manager whose department or organization is scheduling or is otherwise involved in the public meeting. B. Public Meetings Defined 1. The responsibility to provide prior notification to a member of the Board exte~ds to aUp(Jblic.meetings dealing witt) any i.ssueof public. policy, pr9ject or ,program. thatfalJ. under the jUi'isdict~on <?f. the Board .of Supervisors, including,' but 'not limited to the delivery of services, construction of public projects, and regulatory matters affecting public health, safety or welfare. 2. The responsibility for providing prior notification extends to public meetings that are to be scheduled by other units of government in instances in which Pima County is party to an intergovernmental agreement or otherwise cooperates with or shares responsibility for the policy area, project or program with the other unit of government. 3. In some instances, a public meeting will deal with a matter of public policy that is of relevance to residents of more than one supervisorial district but does not have general, community wide importance. ,In these ADMINISTRATION PROCEDURES - PROCEDURE NUMBER 3~8 . Page 21 2 ----------------------------------------------------------------------------------------------- . . instances, the. department administrator, director, or manager shall provide prior notification to all affected me,,!,bers of the Board. 4. The requirement of prior cnotification does not apply to Pima County Boards, Commissions, and Committees or to public meetings whose scheduling is regulated by statute and open meeting requirements. . C. Timing and Form of Notification 1. Whenever scheduling a public meeting is the sole and . exclusive responsibility of a Pima County department or organizational unit, prior notification requires coordination of the date and timing of such public meetings with the schedule of the affected member of the Board before any other efforts are made to set a date, time or place for th~ public meeting. In those instances when s6meother unit of government is responsible for scheduling a public meeting, the Pima County department. . administrator, director, or manager shall make every effort to insure the meeting does not conflict with the schedUling of the Board member, but shall, at a minimum, provide notification of the meeting as soon as it has been determined that a public meeting will be held. 2. Written notification of the public meeting shall be provided to . the . affected Board member .and . sha.1I identify the stated .purpose of th~. meeting, any statutory or regulatory requirements affecting the calling and scheduling of the meeting, and a general time period during which the public meeting should be scheduled. """'~"_....~~.'"-~_..~.~,.....""""...............,,-""_..""'~."=~......,\&,.",.,, EXHIBIT B ,......~", " .', r.... ,- - t . '.. _~,,,.,'..__.~~""_...-..... Payment'Schedule Estimated Estimated Type of Work Reimbursement MonthlYear Request (Design, Request Amount will be Submitted Construction, Etc.) Example $200,000 Dec 05 Desi~ $300,000 June 06 Construction -. \ ~ .' \