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HomeMy WebLinkAboutResolution 2017-038 Approving IGA PCWIN MARANA RESOLUTION No. 2017-038 RELATING TO PUBLIC SAFETY; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF MARANA, PIMA COUNTY, AND OTHER PUBLIC SAFETY AGENCIES TO SECURE ACCESS FROM THE PIMA COUNTY WIRELESS INTEGRATED NETWORK. (PCWIN) FOR INTEROPER..ABILITY FOR I I RADIOS FOR THE MARANA POLICE DEPARTMENT WHEREAS the Pima County wireless Integrated Network (PCWIN) provides opportuni- ty for public safety service providers to migrate their communications services to a regional shared system governed by a Cooperative Board of Directors; and WHEREAS the PCWIN provides public safety communications interoperability for im- proved public safety service coordination; and WHEREAS the intergovernmental agreement (IGA) between the Town of Marana, Pima County and other participating public safety agencies establishes the Cooperative governance structure and mechanisms for the network; and WHEREAS the parties are authorized by A.R.S. §11-951 et seq. to enter into an IGA for the joint exercise of powers; and WHEREAS the Mayor and Council of the Town of Marana feel it is in the best interests of the Town of Marana to enter into this IGA. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the intergovernmental agreement between the Town of Marana, Pima County, and other participating public safety agencies regarding the Pinta County Wireless Integrated Network (PCWIN), attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved, and the Mayor is hereby authorized to sign it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the intergovernmental agreement. 00052025.DOCx 12 Marana Resohition No.2017-038 - 4127/2017 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 2nd day of May, 2017. Mayor Ed H nea ATTEST: APPROVED AS TO FORM: ocelyn C, Bronson, Town Clerk " F nk sidy, Tow -orney 0000 MARANA AZ ESTABLISHED 1977 00052025.I)OCX/2 Marana Resolution No.2017-038 - 2 - 4/27/2017 PIMA COUNTY WIRELESS INTEGRATED NETWORK PROJECT: MEMBERSHIP ICA GRANTEE: TOWN OF MARANA CONTRACT NO.: CT-OEM-13*400 1. Parties The Parties (individually, a "Party") to this Intergovernmental Agreement ("Agreement") consist of all of the signatories to this Agreement. Parties to this Agreement shall automatically become Members of the Pima County wireless Integrated Network Cooperative ("Cooperative"), as detailed in the Governance Document, formed for the purpose of maintaining the Pima County Wireless Integrated Network("Network"). 2. Recitals 2.1. Pima County is constructing the Pima County Wireless Integrated Network ("PCWIN") regional public safety communications system as authorized by Pima County voters at the May 18, 2004 Special Bond Election, and pursuant to Pima County Ordinance No. 2004-18 as subsequently amended. 2.2. The PCWIN bond funded, capital improvement project, is providing the fixed infrastructure; and, subject to available funding, a majority of the subscriber units required by the public entities defined in Pima County ordinance 2004-18 that may become Parties to this Agreement. 2.3. The PCWIN communications system will provide opportunity for Public Safety Service providers to migrate their communications services to a regional shared system governed by a Cooperative Board of Directors. 2.4. The Parties to this Agreement will share the benefits and cost of operating, maintaining, sustaining, improving and financing PCWIN as approved by the Board of Directors. 2.5. The PCWIN will provide public safety communications interoperability for improved public safety service coordination, including the support for automatic aid and mutual aid between agencies. 2.6. This Agreement establishes the Cooperative governance structure and mechanisms for funding the operation, maintenance, sustainment, improvements and financing of the Network. NOW, THEREFORE, the Parties, pursuant to the above, and in consideration of the matters and things hereinafter set forth, do mutually agree as follows: 3. Agreement 3.1. The Parties enter into this Agreement for the purpose of: 3.1.1. Using their best efforts, through cooperation and sharing of common resources, for the mutual benefit of all Parties to operate, maintain, sustain, improve and finance PCWIN. 3.1.2. Providing regional communications operability and intero erabilit . PCWIN Intergovernmental Agreement 042017 2 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE T14E PIMA COUNTY WIRELESS INTEGRATED NETWORK 3.1.3. Providing regional communications cost effectively and using economies of scale. 3.1.4. Providing communications interoperability with other jurisdictions that are not a party to this Agreement, for the benefit of all Parties. 3.2. The Parties are authorized to enter into this Agreement by the joint exercise of powers provisions of Title 11, Chapter 7, Article 3 (§ 11-951 et seq.), Arizona Revised Statutes and the authorization of their legislative or other governing bodies, and of the University of Arizona Board of Regents, A.R.S. § 15-1625. 3.3. The Parties agree to form the Cooperative, an unincorporated association of the Parties, to jointly and cooperatively exercise their powers to achieve the purposes specified in paragraph 3. 3.4. The rules and policies governing the regulation and management of the Cooperative's internal affairs are set forth in a governance document, which is attached to this Agreement as the Governance Document and incorporated herein by this reference. Certain terms that are defined in the Governance Document are used in this Agreement. Those terms shall have the same meaning in this Agreement as such terms are defined in the Governance Document. 3.5. It is the intention of the Parties that the Governance Document be enforceable to the same extent as this Agreement. The Governance Document shall be subject to amendment as provided herein and shall be valid for the duration of this Agreement. The Governance Document is approved by all initial Parties and shall be binding upon any Parties that are admitted after the initial Parties. No additional Parties shall be admitted to the Cooperative without first agreeing to be as bound by the Governance Document as are the initial Parties. 4. Term and Duration of Agreement; Dissolution 4.1. This Agreement shall be binding upon each signing Party, and among and against all signing Parties as of the date on which the Agreement has been executed by each such Party, so long as such Party has complied with the requirements of A.R.S. § 11-952, which includes appropriate action by the legislative or other governing body of the Party for the approval of the Agreement, and determination by the Party's attorney that the Agreement is within the powers and authority of the Party. In order for this Agreement to have Legal effect, at least two (2) Parties must sign it. The "Effective Date" of this Agreement shall be the date upon which the second Party signs it. The initial term of this Agreement shall begin upon the signing of this Agreement by the second Party and end on December 31, 2022; thereafter, the Agreement will automatically renew for terms of ten (10) years. Notwithstanding the foregoing, this Agreement shall automatically terminate upon dissolution of the Cooperative. 4.2. The Parties do not anticipate that the Cooperative will be dissolved until it is no longer desirable or feasible for the Cooperative to operate the Radio System, or Radio System operations are transferred to another appropriate entity as determined by the PCW IN Intergovernmental Agreement 042017 3 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE TIME PIMA COUNTY WIRELESS INTEGRATED NETWORK Cooperative. 4.3. If the Parties dissolve the Cooperative other than by transferring Radio System operations to a governmental or non-profit entity, real property that is owned separately by a Member, regardless of whether it is situated within a Member's boundaries or installed at a Member-owned communications facility shall be returned to such Member. Real property purchased or owned separately by a Member shall remain the sole and separate property of that Member and shall not become the property of the Cooperative. Radio frequencies shall be dealt with in accordance with FCC licensing regulations and in accordance with the terms and conditions of any separate agreements between the Members that result in the contribution of frequencies to the Radio System. 5. Manner of Financing,Indemnity and Insurance 5.1. The cost of operating, maintaining, sustaining, improving and financing the Network shall be paid in the manner specified in the Governance Document. An infrastructure replacement and enhancement fund and an annual operating and maintenance budget shall be established and maintained as provided in the Governance Document. The costs paid by the Parties for operating, maintaining, sustaining, improving and financing the Network, less amounts, including grants and gifts, received from federal, state, regional or other funding sources shall be approved annually by the Cooperative Board of Directors. 5.2. Each Party agrees to timely pay its share of the cost of operating, maintaining, sustaining, improving, and financing the Network as specified in the Governance Document. Each Party shall render its amounts payable to the Cooperative no later than forty-five (45) days from the invoice date. The Cooperative may collect interest at the rate of one percent (1%) per month for payments not received forty-five (45) days from the invoice date. The interest collected shall be deposited in the operating and maintenance budget and used to offset the costs of operation and maintenance. 5.3. It will be the responsibility of each Party to this Agreement to take the appropriate steps in conformity with state or local laws to ensure that it appropriates sufficient funds to cover the obligations it assumes under this Agreement. Each Party recognizes that the performance by the Parties under this Agreement may be dependent upon the appropriation of funds by that Party. Should any Party fail to appropriate the necessary funds, that Party may withdraw from this Agreement on the last day of the fiscal period for which funds are legally available, notwithstanding Section 6. Each Party agrees to give notice to the other Parties as soon as reasonably possible after the unavailability of funds comes to the Party's attention. Each Party understands and acknowledges that claims and lawsuits may be filed for damages resulting from acts or omissions in connection with the operating, maintaining, sustaining, improving and financing, of the Network. Accordingly, to the extent permitted by law, each Party (as Indemnitor) agrees to indemnify, defend and hold harmless the other party (as Indemnitee) from and against any and all claims, losses, PCwIN Intergovernmental Agreement 042017 4 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE TIME PIMA COUNTY WIRELESS INTEGRATED NETWORK liability, costs or expenses (including reasonable attorney's fees) (hereinafter collectively referred to as "claims") arising out of bodily injury of any person (including death) or property damage, but only to the extent that such claims which result in vicarious/derivative liability to the Indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of the Indemnitor, its officers, officials, agents, employees, or volunteers. 5.4. Insurance - Each Party shall obtain and maintain at its own expense, during the entire term of this Contract the following type(s)and amounts of insurance: a) Commercial General Liability in the amount of $1,000,000.00 combined single limit Bodily Injury and Property Damage. b) Commercial or Business automobile liability coverage for owned, non-owned and hired vehicles used in the performance of this Contract with limits in the amount of $1,000,000.00 combined single limit or$1,000,000.00 Bodily Injury, $1,000,000.00 Property Damage. c) If this Contract involves professional services, professional liability insurance in the amount of$1,000,000.00. d) If required by law, workers' compensation coverage including employees' liability coverage. Parties to this agreement shall provide thirty (30) days written notice to all parties to this IGA of cancellation, non-renewal or material change of coverage. The above requirement may be alternatively met through self-insurance pursuant to A.R.S. § 1.1-261, § 11-981. (or if a school district, § 15-382) and § 41-621, or participation in an insurance risk pool under A.R.S. § 1.1.952.01 (if a school district, § 15-382), at no less than the minimal coverage levels set forth in this article. Parties to this agreement shall provide thirty (30) days written notice to all other parties of cancellation, non--renewal or material change of coverage. 5.5. The Cooperative, with the approval of its Board of Directors, may apply for such federal, state or other grants as are made available for operating, maintaining, sustaining, improving, and financing of the Network. The Administrative Managing Member or a Network Managing Member (by and through its authorized signatory) may submit the grant application on behalf of the Cooperative in accordance with applicable laws, rules, regulations and procedures. A grant agreement, approved by the Board of Directors, and entered into on behalf of the Cooperative shall be incorporated and made a pari: of this Agreement, and each Party agrees to be bound by the terms and conditions of the grant and to comply with and enforce the grant provisions within the limits of its jurisdiction. Any grant funds received will be used to reduce the cost of the project for which a grant application was submitted. The application for or the award of a grant shall not relieve a PCwIN Intergovernmental Agreement 042017 5 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK Party of its obligation to pay costs billed by the Cooperative as provided in this Agreement. The Cooperative shall credit grant funds to the Parties, in proportion to the amount of funding each Party contributes towards the grant project, as the grant funds are received. 5.6. The Cooperative's Board of Directors shall use the Administrative Managing Member's procurement and insurance procedures. 6. obligations as Members 6.1. Each Party to this Agreement is a Member of the Cooperative and shall comply with and be subject to the obligations of Members as set forth in the Governance Document, including the obligation to operate, maintain, sustain, improve and finance the Network. This Agreement shall not relieve any Party of any obligation or responsibility imposed upon it by law. 7. Voluntary Termination or withdrawal as Members Any Party may voluntarily terminate its participation in the Cooperative by providing twenty- four (24) months' prior written notice to the other Parties. The Cooperative Board of Directors will work with the withdrawing Member and remaining Parties to determine cost and operational impacts of the withdrawal. Subject to the conditions below, the withdrawing member retains rights to real property, and personal property as defined by the Agreement and as allowable by State and Federal law and/or regulation. Members voluntarily terminating their participation in the Cooperative must comply with the following: 7.1. Transfer or relinquish to the Cooperative any unexpended infrastructure replacement and enhancement funds, and operating and maintenance funds. 7.2. Pay all fees and charges owed to the Cooperative through the effective date of termination. 7.3. Provide the Cooperative with twenty four (24) months' notice before any withdrawal of Equipment, communication services, and Facilities, subject to Subsection 7.6. below. 7.4. Pay for all costs to affect the withdrawal of the Member including costs to reconfigure the Network for the remaining Members. 7.5. Allow continued use of frequencies (subject to Section 4.3 above) and Equipment required for the incremental capacity necessary for use by other Members, including for `roaming'. 7.6. Allow the Cooperative continued use of Member's Equipment, communication services, and Facilities, or alternatively, pay for securing conforming Equipment, communication PCwIN Intergovernmental Agreement 04201.7 6 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK services, and Facilities for continued use of the Cooperative, without service 0. interruption, for the remaining effective period of this Agreement. 7.7. Reimburse Pima County for the depreciated value of any Subscriber Units originally purchased by Pima County and transferred to the Member. 8. Failure to Pay Financial obligation 8.1. If a Party is relieved from payment of its financial obligation to the Cooperative as a matter of law, then the Cooperative may suspend the Party's right to vote and participate in the affairs of the Cooperative until such time as the Party has paid the difference between the Party's share of the costs and the amount the Party has paid for such costs. 5.2. Except as provided in paragraph 8.1, if a Party fails to pay a financial obligation within forty-five (45) days of the invoice date and then, upon notice by the Administrative Managing Member of the deficiency, fails to cure the nonpayment within forty-five (45) days of the date of the deficiency notice, the Cooperative shall suspend the Party's right to vote and participate in the affairs of the Cooperative until such time as the Party has paid the difference between the Party's share of the costs and the amount the Party has paid for the costs. 9. open Meeting Law The Cooperative, including the Board of Directors and the Executive Committee shall comply with A.R.S. § 3 8-431, et seq. (Arizona open Meeting Law) in conducting meetings to the extent the law is applicable. 10. Records 10.1. The Cooperative shall comply with A.R.S. § 39-121 et seq. (Arizona Public Records Law) in maintaining and providing access to the records of the Cooperative. 10.2. The Cooperative and each Party respectively shall make its financial records regarding the operation, maintenance, sustainment, improvement, and financing of the Network available to any requesting official or agent of the Cooperative or Party. Such request for inspection shall not be made more frequently than once a month. 10.3. To the extent permitted by law, the Parties shall treat Network information as proprietary and confidential. Network information includes, but is not limited to, technical data, engineering details, construction documents, inventory lists, programming configurations, and operational procedures. Any Party who receives a request for information or a public records request concerning the Network shall initially and immediately notify the Executive Director of such request before following any customary internal practices or procedures with regard to such request. PCwIN Intergovernmental Agreement 042017 7 INTERGOVERNMENTAL AGREEMENT To OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK 1.0.4. Cooperative and Members may choose, from time to time, in connection with work contemplated under this Agreement, to disclose confidential information other than Network information defined above to each other (Confidential Information). All such disclosures must be in writing and marked as Confidential Information. The Parties will use reasonable efforts to prevent the disclosure to unauthorized third parties of any Confidential Information of the other Party and will use such information only for the purposes of this Agreement, and for three (3) years after the termination of this Agreement; provided that the receiving Party's obligations hereunder shall not apply to 4. information that: a) is already in the receiving Party's possession at the time of disclosure; or, b) is or later becomes part of the public domain through no fault of the receiving Party; or, C) is received from a third party with no duty of confidentiality to the disclosing party; or, d) was developed independently by the receiving party prior to disclosure; or, e) is required to be disclosed by law or regulation. Any information that is transmitted orally or visually, in order to be protected hereunder, shall be identified as such by the disclosing party at the time of disclosure, and identified in writing to the receiving party, as Confidential Information, within thirty(30)days after such oral or visual disclosure. 10.5. Recorded Radio & Telephony Communications - In the event radio or telephony recordings made and retained by the Cooperative are requested for public release pursuant to A.R.S. § 39-101 et seq., the Party receiving the request ("Receiving Party") shall release records ten (1.0) business days after the date of notice to the Originating Party the request for release, unless the originating Party has, within the ten day period, released the requested record or taken action to preclude its release by securing a protective order, injunctive relief or other appropriate order from a court of competent jurisdiction, enjoining the release of the records. For the purposes of this paragraph, the day of the request for release shall not be counted in the time calculation. The Originating Party shall be notified of any request for such release on the same day of the request for public release or as soon thereafter as practicable. The Receiving Party shall not, under any circumstances, be responsible for securing a protective order or other relief enjoining the release of records, nor shall the Receiving Party be financially responsible in any manner for any costs associated with securing such an order. PCWIN Intergovernmental Agreement 042017 8 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK For the purpose of this paragraph, "Originating Party" shall mean the Party that creates the record; "Receiving Party" shall mean any Party that did not create the record, but possesses the record, and has received a request to release the record. All radio and telephony recordings shall be maintained consistent with Board of Director's policies and consistent with Arizona law. 11. Conflict of Interest The Parties understand and acknowledge that this Agreement may be subject to cancellation under A.R.S. § 38-511 (Arizona's public employee conflict of interest law) in the event there is a conflict of interest of the type specified in A.R.S. § 38-511 by persons significantly involved in initiating, negotiating, securing, drafting or creating this Agreement. 12. Compliance with Applicable Laws Each Party shall comply with all applicable laws, statutes, ordinances, executive orders, rules, regulations, standards, and codes of federal, state and local governments whether or not specifically referred to in this Agreement. 13. Cooperation 13.1. The Parties agree to make, sign and deliver all documents and to perform all acts that are necessary to fully carry out the terms of this Agreement. Each of the Parties shall fully cooperate with and assist one another in obtaining all licenses, permits, authorizations, approvals and consents required in or related to the performance of this Agreement. This obligation includes performing an act that is not specifically referred to in this Agreement, so long as the obligation to perform such act is reasonably implied by the terms of this Agreement. Nothing in this Agreement shall be construed or interpreted to require the Cooperative to be responsible for dispatching or otherwise causing its Members to respond to an event within another Member's jurisdiction. 13.2. In the event any legal proceeding is instituted challenging the authority and power of any of the Parties to execute this Agreement or to perforin its terms and conditions, the Parties shall, in good faith, jointly and cooperatively defend the validity of this Agreement. 13.3. The Parties may elect and shall have the right to seek specific performance, where feasible and practicable, by any Party of any or all of the obligations (except payment obligations) set forth in this Agreement. The Parties agree that, in accordance with Section 21.3 herein, specific performance may be sought by way of special action filed in superior court seeking an injunction ordering the Party to perform its obligations under this Agreement. The Parties agree not to raise as a defense the position that there is an "adequate remedy at law." The Parties hereby stipulate and consent to the jurisdiction of the superior court in any such special action. PCwIN Intergovernmental Agreement 04201.7 9 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK. 14. Federal Immigration Compliance A.R.S. § 41-4401. prohibits government entities from entering into an agreement with any other government entity contractor or subcontractor who fails, or whose subcontractors fail, to comply with A.R.S. § 23-214(A). Therefore, each Party agrees that: 14.1. To the extent applicable, Party and each subcontractor it uses warrants its compliance with all federal immigration laws and regulations that relate to its employees and its compliance with § 23-214, subsection A. 14.2. A breach of a warranty under paragraph I shall be deemed a material breach of the Agreement and is subject to penalties up to and including termination of the Agreement. 14.3. Each Party retains the legal right to inspect the papers of the Party or subcontractor employee(s) who work(s) on this Agreement to ensure that Party or subcontractor is complying with the warranty under paragraph 1. 15. Scrutinized Business Operations Pursuant to A.R.S. §§ 35-391.06 and 35-393.06, each Party certifies that it does not have a scrutinized business operation, as defined in A.R.S. §§ 35-391 and 35-393, in either Sudan or Iran. 16. Non-Discrimination The parties agree to comply with Executive Order 75-5 as amended by Executive Order 2009-09 and to comply with all applicable state and federal laws, rules and regulations regarding equal opportunity, nondiscrimination and affirmative action. 17. Amendment 17.1. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the Parties. 17.2. This Agreement, including the Governance Document, may be amended by one of the following two procedures,-- 17.2.L rocedures:17.2.1. Cooperative-Legislative Procedure. A proposed amendment to this Agreement, including the Governance Document, shall be submitted for approval to the Cooperative's Board of Directors. Upon approval of the Board of Directors, each Party shall take appropriate steps in conformity with state and local law to authorize and approve the proposed amendment. PCWIN Intergovernmental Agreement 04201.7 10 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK. 17.2.2. Formal Addendum Procedure. A proposed amendment to this Agreement, including the Governance Document, shall be presented to each Party in the form of an addendum, and, if approved by the Board of Directors, each Party will take appropriate steps in conformity with state and local law to authorize and approve the amendment. 17.3. Each Party shall file a copy of the appropriate resolution, ordinance or other recorded action by which its legislative or governing body approved the amendment with the Executive Director of the Cooperative. 18. Existing and Future Agreements 18.1. The Parties agree that the provisions of this Agreement shall be incorporated in any future subcontracts between the Parties and any other person, political subdivision or public agency that contracts with the Parties to ma ke use of the Radio System. 18.2. The Parties agree that they will not enter into subcontracts for the use of the Radio System without the prior approval of the Board of Directors, which shall have the authority to review the subcontracts for conformity with the rights and obligations set forth in this Agreement. 15.3. In the event of any conflict, inconsistency, or incongruity between the provisions of this Agreement and any of the provisions of any previous agreement between the Parties, the provisions of this Agreement shall in all respects govern and control. 18.4.Nothing in this Agreement shall be construed or interpreted: 18.4.1.. To supersede prior existing mutual aid agreements or radio support agreements between or among the Parties. 15.4.2. To prohibit a Party from entering into separate agreements after the Effective Date of this Agreement concerning real estate, buildings and structures, and towers that the Party owns, leases, or licenses and that the Party authorizes and allows the Cooperative to use as part of the Network, provided the separate agreements are consistent with this Agreement and compatible with the Cooperative's use of the property for the Network. 18.4.3. To supersede prior existing agreements concerning Facilities, that the Party owns, leases, or licenses and that the Party authorizes and allows the Cooperative to use as part of the Network, except to the extent described in Section 18.3 above. 15.5. This Agreement is entered into for the sole and exclusive benefit of the Parties, and no other person shall claim any implied right, benefit or interest in this Agreement. The Parties do not intend to create rights in or remedies to any third party as a beneficiary of this Agreement or of any duty, obligation, or undertaking established under this PC W IN Intergovernmental Agreement 04201.7 Il INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK. Agreement. 19. Notices 19.1. Any notice, consent or other communication ("Notice") required or permitted under this Agreement shall be in writing unless otherwise specified herein and deposited in the U.S. mail, postage prepaid, registered or certified mail, return receipt requested. 19.2.Notice shall be deemed received five (5) days after the Notice is deposited in the U.S. marl as provided above. Any time period stated in a Notice shall computed from the time the Notice is deemed received. 19.3. Any Party may change its mailing address or the person to receive Notice by notifying the other Parties as provided in this section. Routine notices shall be sent as provided in this Agreement. 20. Default and Cure 20.1. Each Party agrees that it will perform all duties and obligations agreed to be performed by it under the terms and conditions of this Agreement, and that the unexcused failure of the Party to perform its duties and obligations shall constitute a default under this Agreement. In the event of a payment default by a Party, the Executive Director shall give written notice of the default, specifying the existence and the nature of the default. The defaulting Party shall have ten (1-0) days to remedy the default by making due payment. In the event of any performance default by a Party, the Executive Director shall give written notice of the default, specifying the existence and the nature of the default. The defaulting Party shall have thirty (30) days to remedy the default by rendering the necessary performance. In the event that the defaulting Party disputes an asserted default, the Party shall perform the disputed obligation, including making payment, but may do so under protest. The protest shall be in writing, and shall precede the performance of the disputed obligation, and shall specify the reasons upon which the protest is based. The Party disputing the asserted default shall have the right to submit the dispute to the Cooperative's Board of Directors for a recommendation on a non-binding resolution under paragraph 21. 20.2.Notwithstanding the provisions of paragraph 20.1, in the event a Member disputes an amount billed, it shall do so in writing to the Executive Director within forty--five (45) days after the invoice date. The Member shall pay the disputed amount, but may do so under protest. The protest shall be in writing, and shall accompany the disputed payment if not previously paid and shall specify the reason upon which the protest is based. After the protest has been filed and the disputed amount has been paid, the dispute shall be handled in accordance with the dispute resolution process specified in paragraph 21. Payments not made under protest shall be deemed to be correct. If a protest is not filed within forty-five (45) days of the invoice date, the Member waives its right to file a protest. PCWIN Intergovernmental Agreement 042017 12 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK. 20.3. If a party fails to cure a default within the time frames specified in 20.1, that party will no longer be in "Good Standing," as defined in the Governance Document, and shall lose voting privileges as specified in paragraph 3.2.1.3 of the Governance Document. If the Party is still in default after six consecutive months, the Board of Directors has the right to define additional cures up to and including expulsion from the Cooperative. 21. Alternative Dispute Resolution 21.1. If any dispute, complaint or controversy, including a protest made pursuant to paragraph 20.1 or 20.2, ("dispute") arises between or among the Parties under this Agreement, the dispute shall be brought to Cooperative's Board of Directors for non- binding dispute resolution in accordance with the internal dispute resolution process established by the Board of Directors. If a Party disagrees with the Board of Director's determination, the Party may pursue the remedies otherwise provided for in this Agreement. 21.2.Notwithstanding the existence of a dispute between or among the Parties, insofar as is possible under the terms of this Agreement, each Party shall continue to perform the obligations that are required of it and that are not related to the dispute. The Parties agree that at any point in the internal dispute resolution process, the Board of Directors may adopt and impose an interim emergency remedy to ensure the continuation of essential communication services until the dispute is resolved. 21.3. This Agreement shall not be construed or interpreted to prohibit a Party from seeking injunctive relief for the preservation of property. 21.4. In the event a dispute cannot be resolved through the procedures set forth above, the Parties shall submit any controversy or claim arising out of or relating to this contract or breach of this contract to mandatory mediation before a single mediator. The Parties shall participate in mediation in good faith to resolve any dispute. Any mediation shall be held in Tucson, Arizona. Should the Parties fail to agree on a mediator within 10 days of a demand for mediation, the then-presiding civil judge of the Superior Court in Pima County, Arizona shall appoint the mediator, or one will otherwise be appointed pursuant to Board of Director's policy. If mediation is unsuccessful in resolving any dispute within ninety (90) days after demand for mediation, either Party may seek judicial remedy after ninety (90) day mandatory mediation period has elapsed, provided that such agreement to mediate shall not be construed as a waiver of the sovereign immunity of any Party. PCwIN Intergovernmental Agreement 042017 13 INTERGOVERNMENTAL AGREEMENT To OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK. 22. waiver The waiver by any Party of any breach of any term, covenant or condition of this Agreement shall not be deemed a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition of this Agreement. 23. Performance and Uncontrollable Events 23.1. A Party shall not be considered in default in the performance of any obligations under this Agreement (other than obligations of a Party to pay costs and expenses) if failure of performance is due to an uncontrollable event. The term "uncontrollable event" means any cause beyond the control of the Party affected, including but not limited to flood, earthquake, storm, fire, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor or material shortage, sabotage and restraint by court order or public authority, that by exercise of due diligence and foresight the Party reasonably could not have been expected to avoid and that by exercise of due diligence it will be unable to overcome. A Party that is rendered unable to fu l f l l any obligation by reason of an uncontrollable event shall exercise due diligence to remove such inability with all reasonable dispatch. 23.2. If any Party claims that its failure to perform was due to an uncontrollable event, the Party shall bear the burden of proof that such activity was within the meaning and intent of this section, if such claim is disputed by any Party to this Agreement. 24. Assignment and Binding Effect This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. No assignment shall be allowed without the prior written consent of the Board of Directors. 25. Entire Agreement This Agreement, including the Governance Document, contains the entire agreement and understanding among the Parties regarding the formation, governance and operation of the Cooperative, and supersedes and replaces all related prior negotiations or agreements regarding its contents and purpose. Each Party acknowledges that no other Party, nor any agent or attorney of any Party, has made any promise, representation, or warranty whatsoever, expressed or implied, not contained in this Agreement and acknowledges that this Agreement has not been executed in reliance on any promise, representation or warranty not contained in this Agreement. Any amendment or modification of this Agreement shall be in writing. For only those members who are covered or hybrid entities ("Covered Members") under the Health Insurance Portability and Accountability Act ("HIPAA"), and only in the event Protected Health Information ("PHI") will be recorded onto Pima County server(s), a Business Associate Agreement or Agreements ("BAA") shall be executed and attached hereto as Exhibit B to this Agreement. Notwithstanding any provision to the contrary in this Agreement or the Governance Document, the terms and conditions of a BAA are solely between the signing Covered Member and Pima County. PC WIN Intergovernmental Agreement 042017 14 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK 26. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona applicable to contracts executed and intended to be performed entirely within the State of Arizona by residents of the State of Arizona. Any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or any provision therefore shall be instituted only in the courts of Pima County, Arizona. 27. Severability If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, the provision shall be severed from this Agreement, which shall otherwise remain in full force and effect if the remaining provisions permit the Parties to obtain the practical benefits of the Radio System. If any law or court of competent jurisdiction prohibits or excuses any Party from undertaking any contractual commitment to perform any act under this Agreement, this Agreement shall remain in full force and effect, but the provisions requiring such action shall be deemed to permit the Party to take such action at its discretion, if such a construction is permitted by law. This section shall not limit the discretion of the Parties to suspend a Party's right to vote and participate in the affairs of the Cooperative as provided in section 8, entitled Failure To Pay Financial Obligation. 28. Headings Section headings are inserted in this Agreement solely for convenience and the section headings shall not by themselves alter, modify, limit, expand or otherwise affect the meaning of any provision of this Agreement. PCWIN Intergovernmental Agreement 042017 15 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN., SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY WIRELESS INTEGRATED NETWORK 29. Counterparts This Agreement, which includes The Governance Document, "Pima COL111ty Wireless Integrated Network Cooperative Governance Document," may be signed in Counterparts, each of which shall be deemed an oz•iginal, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers. For Entity Name Date -L2-O 1-7 By (Signature) 0 Printed Name and Title ATTEST: ignature Printed Name and Title APPROVED AS TO FORM and within the powers and authority granted under the laws of Arizona to the Entity (S' Lure) 7 Printed Name and Title PCWIN Intergovernmental Agreement 042017 16 INTERGOVERNMENTAL AGREEMENT TO OPERATE, MAINTAIN, SUSTAIN, IMPROVE AND FINANCE THE PIMA COUNTY'WIRELESS INTEGRATED NETWORK PCWIN Intergovernmental Agreement 042017 17