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HomeMy WebLinkAboutResolution 2019-124 Approving the El Rio Bank Protection Project IGARESOLUTION NO. 2019-124 RELATING TO PARKS AND RECREATION; APPROVING AND AUTHORIZING THE MAYOR TO SIGN AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE PIMA COUNTY FLOOD CONTROL DISTRICT AND THE TOWN OF MARANA FOR THE EL RIO PRESERVE BANK PROTECTION PROJECT WHEREAS the Town is designing the El Rio Riparian Restoration Project, Marana Project No. PK026, proposing the eventual construction of two ponds and various pathways and related park amenities at the El Rio Preserve; and WHEREAS Town staff has negotiated an intergovernmental agreement with the Pima County Flood Control District for the El Rio Preserve Bank Protection Project, PCRFCD Project No. 5LKMNA, which will provide bank protection for the El Rio Preserve; and WHEREAS Exhibit D to the intergovernmental agreement is a land exchange agreement between the Pima County Flood Control District and the Town of Marana, for the transfer of certain property rights from the Pima County Flood Control District to the Town of Marana as needed for the El Rio Riparian Restoration Project in exchange for the transfer of certain property rights from the Town of Marana to the Pima County Flood Control District as needed for the El Rio Preserve Bank Protection Project; and WHEREAS the Mayor and Council of the Town of Marana find that this resolution is in the best interests of the Town of Marana and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA as follows: Section 1. The intergovernmental agreement between the Pima County Flood Control District and the Town of Marana in substantially the form included with the agenda backup material accompanying this resolution is hereby approved and the Mayor is authorized to sign it for and on behalf of the Town of Marana. Section 2. The land exchange agreement between the Pima County Flood Control District and the Town of Marana in substantially the form included with the agenda backup material accompanying this resolution is hereby approved and the Mayor is authorized to sign it for and on behalf of the Town of Marana. 00067202.DOCX /1 Marana Resolution No. 2019-1.24 - 1 - 1.2/4/201.9 3:03 PM Section 3. The Town Manager and staff are hereby directed and authorized to sign all other documents and undertake all other and further tasks required or beneficial to carry out the terms, obligations, conditions and objectives of this resolution and the agreements it approves. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 17t1 day of December, 2019. wson, Town Clerk Mayor Ed Honea APPROVED AS TO FORM: 00067202.DOCX /1 Marana Resolution No. 201.9-124 - 2 - 12/4/2019 3:03 PM - 1 - INTERGOVERNMENTAL AGREEMENT BETWEEN THE PIMA COUNTY FLOOD CONTROL DISTRICT AND THE TOWN OF MARANA FOR THE EL RIO PRESERVE BANK PROTECTION PROJECT This Intergovernmental Agreement (this “Agreement”) is entered into by and between the Pima County Flood Control District (“District”), a political taxing subdivision of the State of Arizona, and the Town of Marana (“Marana”), an Arizona municipal corporation, pursuant to Arizona Revised Statutes section (A.R.S. §) 11-952. District and Marana are sometimes collectively referred to as the “Parties,” either of which is sometimes individually referred to as a “Party.” Recitals A. District is authorized by A.R.S. § 48-3603 to construct, operate, and maintain flood control works and storm-drainage facilities for the benefit of the District, and to acquire property for those purposes. B. Marana is authorized by A.R.S. §§ 9-240, 9-464.01, 9-494, and 9-500.03 to construct, reconstruct, acquire, and maintain drainage ways and channels, parks, and trail systems. C. The Parties wish to cooperate in the design and construction of the El Rio Preserve Bank Protection Project (“the Project”), as depicted in Exhibits A (Area Map) and B (95% Bank Protection Plans), and to create landforms within the preserve using sediment from a capacity restoration project in this reach of the Santa Cruz River, as depicted in Exhibit C (Final Grading Plans). The purpose for the Project is to provide flood control improvements for the Marana El Rio Preserve and Trail System and to restore flood-carrying capacity along a specific segment of the Santa Cruz River. The Project area is located within the Marana town limits, and part of the project area is on land owned by the town of Marana. D. The Parties are authorized to contract for services and enter into agreements with each other for joint or cooperative action pursuant to A.R.S. § 11-952. E. The Project is currently estimated to cost approximately $1.98 million. F. District desires to advertise, award, execute, and administer the design and construction contracts for the Project and, after completion of the Project, to operate and maintain the bank protection improvements constructed by the Project. G. Marana desires to provide District with all easements necessary to construct and maintain the Project, and the Parties desire to provide all real property exchanges that - 2 - are necessary to construct the Project and maintain the sluice gate constructed by the Project. H. Construction of the Project is currently scheduled to commence in fiscal year 2019- 2020, subject to the acquisition of all necessary permits, easements, and environmental clearances necessary for the Project, and is estimated to be completed approximately 12 months after the start of construction. I. Marana acknowledges that its intent is to follow through with the construction of the El Rio Preserve in a timely manner once District has constructed the Project. Agreement NOW THEREFORE, the Parties, pursuant to the above recitals which are incorporated herein, and in consideration of the matters and things hereinafter set forth, do mutually agree as follows: 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 administrative matters among the Parties. 2. Project. The Project consists of the design and construction of bank protection as depicted in Exhibit B, and the creation of landforms within the Preserve using sediment from a capacity-restoration project as depicted in Exhibit C (collectively “Project Plans”). 3. Design and Construction Responsibilities. District shall design and construct the Project in accordance with the Project Plans. District will provide Marana an opportunity to review and comment on the Project Plans as they are developed, but final responsibility for and approval of the Project Plans shall rest with District. a. Environmental Compliance. District 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 Department and the U.S. Department of Fish and Wildlife Service as being endangered, threatened, or of concern; and compliance with the National Pollutant Discharge Elimination System (including preparation of a Storm Water Pollution Prevention Plan). b. Cultural Resources. District 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, - 3 - and other agencies as appropriate, and implemented prior to construction, at District’s cost. 4. Construction. District shall administer the construction contracts for the Project in accordance with the requirements of Arizona Revised Statutes Title 34 and in accordance with the Construction Schedule (as defined below). District shall have the usual rights of the owner of a public construction contract. a. Construction Schedule. District shall be responsible for preparing a construction schedule (the “Construction Schedule”) showing the anticipated timing and duration of each stage of construction. A final Construction Schedule shall be established and provided to Marana within 30 days after District’s award of the first construction contract for the Project. b. Grading. The placement of the sediment on the Preserve, as depicted in Exhibit C will occur first. Once the material has been placed and stabilized, Marana will become responsible for maintenance and relocation, if desired. c. Signage. District 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 District project, and listing the names of the members of the Board of Directors. d. Hazardous Substances. All hazardous substances found on Marana property are the responsibility of Marana. Marana shall remove and remediate any hazardous substances discovered on Marana property as soon as possible to minimize any delay of the Project. 5. Utility Relocations. District shall be responsible for coordinating all utility relocations for the Project. Marana shall assist in all coordination with the utility companies and will pay for any relocation costs not covered by the utility companies. 6. Real Property Exchange and Easements. a. Marana shall, upon execution of this Agreement, grant any temporary construction easement identified in the Project Plans as necessary to construct the Project. b. Marana and the District shall, upon execution of this Agreement, execute a Land Exchange Agreement in the form of Exhibit D. The Land Exchange agreement provides the following: i. District will convey to Marana, in fee title, the property described and depicted in Exhibit E. ii. District will convey to Marana the drainage easement described and depicted in Exhibit F, using the form provided in Exhibit F. iii. Marana will convey to District, in fee title, the two properties described and depicted in Exhibit G. - 4 - c. Each Party shall provide the other with any records or documents in its possession that will assist the other Party in acquiring any property interests necessary for the Project. 7. Right of Entry. Marana’s execution of this Agreement grants District the right to enter upon property owned by Marana, including the project area depicted on Exhibits B and C, as reasonably necessary for the purpose of grading, preparing to construct, and constructing the Project. 8. Project Permits. District shall obtain the Army Corps of Engineering Section 404 permit. Marana shall provide to District, at no cost to District, any Marana clearances or permits necessary for District to construct and maintain the Project. 9. Public Participation. Marana shall coordinate all publicity or public participation activities for the Project, which will include at least one public meeting before the start of construction. 10. Project Manager and Representatives. District shall furnish a Project Manager for the Project and Marana shall designate a representative (the “Marana Liaison”) to be a liaison with the Project Manager during construction of the Project. 11. Disputes. If the Project Manager and Marana Liaison disagree on any aspect of the Project, the District’s Chief Engineer and Marana’s Town Engineer, or their designees, shall meet within ten calendar days to attempt to reach a mutually agreeable resolution, unless another time frame is agreed upon in advance. If the dispute remains unsettled after that meeting, or if that meeting does not occur within the time frame specified above or otherwise agreed upon, the Pima County Administrator and Marana’s Town Manager shall meet within ten calendar days to attempt to reach a mutually agreeable resolution, unless another time frame is agreed upon in advance. If the dispute remains unresolved after that meeting, or if that meeting fails to occur within the time frame specified above or otherwise agreed upon, District shall, in its sole discretion, determine how to proceed. Nothing in this paragraph waives or limits Marana’s legal rights or remedies regarding this Agreement. 12. Financing of the Project. District shall be responsible for all Project costs except for those costs specifically allocated to Marana by this Agreement or Project enhancements or changes requested by Marana whose costs are accepted in writing by Marana. District or its contractor may take earthwork needed for the Project as shown on grading sheets and Project Plans without cost to the District. 13. Financing of Sluice Gate. District will fund and construct a sluice gate in conjunction with the Project to reduce ponding behind the bank protection. Sluice gate will be enclosed in a structure. 14. Regulation of the Project during Construction. District shall have responsibility for and control over the Project during construction. - 5 - 15. Inspection. Marana may inspect any portion of the Project construction located within the Marana town limits for substantial compliance with drawings and specifications. District shall allow official Marana representatives reasonable access to the Project site during construction. The Project Manager, the Marana Liaison, and Marana inspectors will cooperate and consult with each other during Project construction. 16. Ownership and Maintenance of Improvements; Right of Entry for Maintenance. Ownership of and title to all bank protection improvements constructed as part of the Project shall automatically vest in District upon completion of the Project, and thereafter District shall be solely responsible for maintaining and operating those improvements. Ownership of and title to the sluice gate shall automatically vest in the District upon completion of the Project, and thereafter Marana shall be solely responsible for maintaining and operating the sluice gate. Execution of this Agreement grants Marana the right to enter upon property owned by District as reasonably necessary for the purpose of maintaining the sluice gate constructed in conjunction with this Project. 17. Recording. After execution, District shall record this Agreement in the Office of the Pima County Recorder. 18. Term and Termination. a. Term. This Agreement shall be effective on the date of the last signature of a Party. The provisions of this Agreement that pertain to design and construction shall expire on final completion and acceptance of the Project by District. The remaining provisions of this Agreement shall remain in effect until January 1, 2038, and shall automatically renew for successive five year periods, unless and until the Parties mutually agree in writing to terminate this Agreement. 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 this 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 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. Failure to Appropriate Sufficient Funds. This Agreement shall automatically terminate if, for any reason, District fails to appropriate sufficient funds to design or construct the Project. - 6 - c. Effect of termination. i. Extinguishment of Easements Granted to District. Upon termination of this Agreement for any reason, District will, at its sole cost, extinguish the easements granted to District by Marana under this Agreement. ii. Ownership and Maintenance of Improvements. Upon termination of this Agreement for any reason, ownership of all Project improvements located on property owned by Marana shall automatically vest in Marana, and Marana shall be solely responsible for maintaining those improvements. 19. Indemnification. To the fullest extent permitted by law, each Party shall indemnify, defend and hold the other Party, its governing board or bodies, 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. a. Preexisting conditions. To the fullest extent permitted by law, each Party shall indemnify, defend and hold the other Party, its board, 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 local environmental laws, regulations, or ordinances, that is present on, in, or below, or originated from, property owned or controlled by the Party that is the subject of the real property land exchanges as depicted and described in Exhibits E and G. b. Notice. Each Party shall notify the other Party in writing within 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. 20. Insurance. When requested, a Party shall provide the other Party with proof of its workers’ compensation, automobile, accident, property damage, and liability coverage or program of self- insurance. - 7 - 21. Books and Records. District shall keep and maintain proper and complete books, records and accounts of the Project, which will be maintained in accordance with District’s records retention policy and made available for inspection by Marana upon reasonable notice. 22. 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 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. If 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 this Agreement are severable. If provision of this Agreement is declared invalid or void, the Parties agree to meet promptly upon request of a Party in an attempt to reach an agreement on a substitute provision. 23. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or extending the legal jurisdiction of Marana or District. 24. No Joint Venture. It is not intended by this Agreement to, and nothing contained in this Agreement shall be construed to, create any partnership, joint venture or employment relationship between the Parties or create any employer-employee relationship between a Party and the other Party’s employees, except as expressly provided for in Section 25 (Workers Compensation). No Party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other Party, including (without limitation) the other Party's obligation to withhold Social Security and income taxes for itself or any of its employees. 25. Workers Compensation. An employee of a Party shall be deemed to be an employee of both Parties while performing pursuant to this Agreement, for purposes of A.R.S. § 23-1022 and the Arizona Workers Compensation laws. The primary employer shall be solely liable for any workers compensation benefits that may accrue. Each Party shall post a notice pursuant to the provisions of A.R.S. § 23-906 in substantially the following form: - 8 - All employees are hereby further notified that they may be required to work under the jurisdiction or control or within the jurisdictional boundaries of another public agency pursuant to an intergovernmental agreement or contract, and under such circumstances they are deemed by the laws of Arizona to be employees of both public agencies for the purposes of worker s compensation. 26. 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 either 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. 27. 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. a. Anti-Discrimination. The provisions of A.R.S. § 41-1463 and Executive Order 75-5, as amended by Executive Orders 99-4 and 2009-9, issued by the Governor of the State of Arizona are incorporated by this reference as a part of this 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 101-336, 42 U.S.C. 12101-12213) and all applicable federal regulations under the Act, including 28 CFR Parts 35 and 36. 28. Waiver. Waiver by either 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. 29. 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 Party affected, order of any government officer or court (excluding orders promulgated by the Party affected), 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. A Party rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise due diligence to remove such inability with all reasonable dispatch. - 9 - 30. Notification. All notices or demands upon either Party shall be in writing, unless other forms are designated elsewhere, and shall be delivered in person or sent by mail addressed as follows: MARANA: TOWN OF MARANA Attn: Keith Brann, Town Engineer 11555 W. Civic Center Drive Marana, Arizona 85653 DISTRICT: PIMA COUNTY FLOOD CONTROL DISTRICT Attn: Chief Engineer 201 N Stone Ave, 9th Floor Tucson, AZ 85701 Notices shall be deemed delivered and received on the date of delivery, if delivered in person, or on the third business day after mailing, if delivered by any form of mail. A Party may, by written notice to the other Party, designate another address or person for receipt of notices under this Agreement. 31. Remedies. Either 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. - 10 - IN WITNESS WHEREOF, District has caused this Agreement to be executed by the Chair of its Board of Directors, upon resolution and attested to by the Clerk of the Board; and Marana has caused this Agreement to be executed by the Mayor upon resolution of the Mayor and Council and attested to by its Clerk. PIMA COUNTY FLOOD CONTROL DISTRICT Richard Elias, Chairman, Board of Directors Date: _________________ TOWN OF MARANA Ed Honea, Mayor Date: __________________ APPROVED AS TO CONTENT: Suzanne Shields, P.E., Director and Chief Engineer ATTEST: Julie Castañeda, Clerk of the Board APPROVED AS TO CONTENT: ___________________________________ Keith Brann, P.E., CFM, Town Engineer ATTEST: Town Clerk - 11 - Intergovernmental Agreement Determination The foregoing intergovernmental agreement between the PIMA COUNTY FLOOD CONTROL DISTRICT and the TOWN OF MARANA has been reviewed pursuant to A.R.S. § 11-952 by the undersigned, who have 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 to this Agreement represented by the undersigned. PIMA COUNTY FLOOD CONTROL DISTRICT: Deputy County Attorney Date: _________________ TOWN OF MARANA: Town Attorney Date: __________________ - 12 - EXHIBIT A Project Area Map This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map are subject to Pima County's ITD GIS disclaimer and use restrictions. Notes: Legend 1,000.002,000.0 0 Feet 10/23/2018 El Rio Preserve Area Parcels Washes - Major Access Route Culverts Dam Linear Park System Trash Racks Bank Protection Box Culverts Bridges Bridges - Pedestrian Detention and Retention Bas Drop Structures Grade Control Structures Spillways Drainageway (999999993) Drainageway Inspection with Drainageway Inspection betw Drainageway Inspection betw Drainageway Maintenance R Maintenance value not yet defin RFCD Full Responsibility RFCD Full Responsibility - IGA RFCD Easement Responsibility RFCD Easement Responsibility RFCD Special Conditions Other's Responsibility Veterans Tract Undetermined Responsibility - 13 - EXHIBIT B 95% Bank Protection Plans 0 0 HZ. SCALE IN FEET VT. SCALE IN FEET 20 40 4 4 8 0 0 20 0 0 HZ. SCALE IN FEET VT. SCALE IN FEET 0 0 40 80 8 8 16 40 0 0 HZ. SCALE IN FEET VT. SCALE IN FEET 0 0 40 80 8 8 16 40 0 0 HZ. SCALE IN FEET VT. SCALE IN FEET 0 0 40 80 8 8 16 40 0 0 HZ. SCALE IN FEET VT. SCALE IN FEET 0 0 40 80 8 8 16 40 0 0 HZ. SCALE IN FEET VT. SCALE IN FEET 0 0 40 80 8 8 16 40 0 SCALE IN FEET 040 8040 0 SCALE IN FEET 040 8040 - 14 - EXHIBIT C Final Grading Plans - 15 - EXHIBIT D Form of Land Exchange Agreement Page 1 PIMA COUNTY REAL PROPERTY SERVICES PROJECT: Exchange Agreement PARTIES: Pima County Regional Flood Control District, a political taxing subdivision of the State of Arizona and the Town of Marana, an Arizona municipal corporation FUNDING: N/A EXCHANGE AGREEMENT 1. Parties; Effective Date. This Exchange Agreement (the “Agreement”) is between, Pima County Flood Control District, a political taxing subdivision of the State of Arizona (“District”), and Town of Marana, an Arizona municipal corporation (“Town”). This Agreement will become effective on the date when all the parties have signed it (the “Effective Date”). The District is deemed to have signed the Agreement on the date the Chair of the Pima County Regional Flood Control District Board of Directors signed it. The Town is deemed to have signed the Agreement on the date the Mayor or his designee of the Town has signed it. 2. Exchange of Properties. The parties acknowledge that they have executed, on or near the same date as this Agreement, an Intergovernmental Agreement Between the Pima County Flood Control District and the Town of Marana for the El Rio Preserve Bank Protection Project (“the El Rio Preserve IGA”). 2.1. District agrees to convey to Town immediately following execution of this Agreement, in fee title, the property described and depicted in Exhibit E of the El Rio Preserve IGA. 2.2. District agrees to convey to Town immediately following execution of this Agreement the drainage easement described and depicted in Exhibit F of the El Rio Preserve IGA, using the form provided in that exhibit. Exhibits E and F of the El Rio Preserve IGA are referred to in this Agreement collectively as the "District Property". Page 2 2.3. Town agrees to convey to District immediately following execution of this Agreement, in fee title, the two properties described and depicted in Exhibit G of the El Rio Preserve IGA (the "Town Property"). 2.4. District and Town will exchange the District Property and the Town Property pursuant to A.R.S. § 11-251(44) (the “Exchange”). The District shall publish notice thirty days before the Exchange, listing the ownership and description of the Town Property and the District Property. 3. Equivalent Value. The parties acknowledge that the value of the District Property shall be approximately equivalent to the value of the Town Property and that no cash amounts will be due and owing from either party to the other as a result of the Exchange. 4. Vacant Land. The parties acknowledge that the Town Property and the District Property are vacant land and that no personal property is being transferred. 5. Inspection Rights. 5.1. Access and Possession. Upon execution of this Agreement and until Closing, each party hereby grants permission to the other party, that party’s representatives, and that party’s authorized agents to enter the other party’s property for due diligence, including for land survey, biological and cultural survey, and environmental assessment. Each party shall deliver possession on the date of Closing 5.2. Inspection. Each party will permit the other party to conduct such inspections of the others property as deemed necessary to determine the environmental condition of the property. If the investigations reveal the presence of contamination or the need to conduct environmental cleanup, each party will conduct a cleanup of its property adequate to bring the property into compliance prior to closing or the other party may terminate this Agreement. 6. Escrow. Pima County Real Property Services will act as Escrow Agent for this Exchange and will record the signed deeds. Closing will occur within thirty (30) days after the execution of the agreement by County. 7. Closing Documents. Page 3 7.1. Town will execute and deliver to District Special Warranty Deeds conveying title to the Town Property to District and will deliver the recorded deeds to District. 7.2. District will execute and deliver to Town a Special Warranty Deed and a drainage easement conveying title and rights described above to the District Property to Town and will deliver the recorded deed and easement to Town. 8. Representations. 8.1. Each party represents that, to the best of its knowledge (i) no pollutants, contaminants, toxic or hazardous substances, wastes or materials have been stored, used, or are located on its property or within any surface or subsurface waters thereof; (ii) that no underground tanks have been located on its property; (iii) that its property is in compliance with all federal, state, and local environmental laws, regulations, and ordinances; and (iv) that no legal action of any kind has been commenced or threatened with respect to its property. 8.2. Subject only to the representations of the parties in this section, each party acknowledges that neither party has made any representations or warranties of any nature to the other, and the property interests acquired by each party are acquired “AS IS” and “WHERE IS,” with all faults and limitations, and all defects, latent or otherwise. Each party who is the grantee of the interests subject to this Agreement further represents to the other that is has fully and completely examined the property, conducted inspections thereof, including environmental assessments to the extent such grantee has felt necessary or advisable, and releases the other party from any and all liability, obligation or responsibility in any way relating to the condition of the land. This release survives closing. 9. No Leases. Each party represents that there are no oral or written leases, rental agreements, licenses, permits, or any other agreements permitting a third party to use or occupy all or any portion of its property. 10. Conflict of Interest. This Agreement is subject to cancellation within three years after its execution pursuant to A.R.S. § 38-511 if any person significantly involved in initiating, negotiating, securing, drafting, or creating this Agreement on behalf of District or Town is, at any time while this Agreement or any extension of the Agreement is in effect, an employee or agent of any other party to the Agreement with respect to the subject matter of the Agreement. Page 4 11. Survival of Representation and Warranties. All representations and warranties contained herein survive the closing for ten years. 12. Entire Agreement. This signed document constitutes the entire Agreement between the parties, and no modification or amendment to this Agreement will be binding unless in writing and signed by both parties. 13. Remedies. If either party defaults under this Agreement, the other party may pursue all rights and remedies available at law or in equity. Each Party is signing this agreement on the date stated opposite that Party’s signature. COUNTY: PIMA COUNTY FLOOD CONTROL DISTRICT, a political taxing subdivision of the State of Arizona: Chairman, Board of Directors Date ATTEST: Clerk of Board Date APPROVED AS TO CONTENT: Neil J. Konigsberg, Manager, Real Property Services Carmine Debonis, Deputy County Administrator, Public Works Suzanne Shields, P.E. Director, Flood Control District Page 5 APPROVED AS TO FORM: Kell Olson, Deputy County Attorney Town of Marana, an Arizona municipal corporation: Mayor Date ATTEST: Town Clerk Date APPROVED AS TO CONTENT: Keith Brann, Town Engineer Jim Conroy, Town Parks and Recreation Director APPROVED AS TO FORM: Frank Cassidy, Town Attorney - 16 - EXHIBIT E Land to be Deeded from District to Marana in Fee - 17 - EXHIBIT F Drainage Easement to be Deeded from District to Marana - 18 - EXHIBIT G Land to be Deeded from Marana to District in Fee Page 1 PIMA COUNTY REAL PROPERTY SERVICES PROJECT: Exchange Agreement PARTIES: Pima County Regional Flood Control District, a political taxing subdivision of the State of Arizona and the Town of Marana, an Arizona municipal corporation FUNDING: N/A EXCHANGE AGREEMENT 1. Parties; Effective Date. This Exchange Agreement (the “Agreement”) is between, Pima County Flood Control District, a political taxing subdivision of the State of Arizona (“District”), and Town of Marana, an Arizona municipal corporation (“Town”). This Agreement will become effective on the date when all the parties have signed it (the “Effective Date”). The District is deemed to have signed the Agreement on the date the Chair of the Pima County Regional Flood Control District Board of Directors signed it. The Town is deemed to have signed the Agreement on the date the Mayor or his designee of the Town has signed it. 2. Exchange of Properties. The parties acknowledge that they have executed, on or near the same date as this Agreement, an Intergovernmental Agreement Between the Pima County Flood Control District and the Town of Marana for the El Rio Preserve Bank Protection Project (“the El Rio Preserve IGA”). 2.1. District agrees to convey to Town immediately following execution of this Agreement, in fee title, the property described and depicted in Exhibit E of the El Rio Preserve IGA. 2.2. District agrees to convey to Town immediately following execution of this Agreement the drainage easement described and depicted in Exhibit F of the El Rio Preserve IGA, using the form provided in that exhibit. Exhibits E and F of the El Rio Preserve IGA are referred to in this Agreement collectively as the "District Property". Page 2 2.3. Town agrees to convey to District immediately following execution of this Agreement, in fee title, the two properties described and depicted in Exhibit G of the El Rio Preserve IGA (the "Town Property"). 2.4. District and Town will exchange the District Property and the Town Property pursuant to A.R.S. § 11-251(44) (the “Exchange”). The District shall publish notice thirty days before the Exchange, listing the ownership and description of the Town Property and the District Property. 3. Equivalent Value. The parties acknowledge that the value of the District Property shall be approximately equivalent to the value of the Town Property and that no cash amounts will be due and owing from either party to the other as a result of the Exchange. 4. Vacant Land. The parties acknowledge that the Town Property and the District Property are vacant land and that no personal property is being transferred. 5. Inspection Rights. 5.1. Access and Possession. Upon execution of this Agreement and until Closing, each party hereby grants permission to the other party, that party’s representatives, and that party’s authorized agents to enter the other party’s property for due diligence, including for land survey, biological and cultural survey, and environmental assessment. Each party shall deliver possession on the date of Closing 5.2. Inspection. Each party will permit the other party to conduct such inspections of the others property as deemed necessary to determine the environmental condition of the property. If the investigations reveal the presence of contamination or the need to conduct environmental cleanup, each party will conduct a cleanup of its property adequate to bring the property into compliance prior to closing or the other party may terminate this Agreement. 6. Escrow. Pima County Real Property Services will act as Escrow Agent for this Exchange and will record the signed deeds. Closing will occur within thirty (30) days after the execution of the agreement by County. 7. Closing Documents. Page 3 7.1. Town will execute and deliver to District Special Warranty Deeds conveying title to the Town Property to District and will deliver the recorded deeds to District. 7.2. District will execute and deliver to Town a Special Warranty Deed and a drainage easement conveying title and rights described above to the District Property to Town and will deliver the recorded deed and easement to Town. 8. Representations. 8.1. Each party represents that, to the best of its knowledge (i) no pollutants, contaminants, toxic or hazardous substances, wastes or materials have been stored, used, or are located on its property or within any surface or subsurface waters thereof; (ii) that no underground tanks have been located on its property; (iii) that its property is in compliance with all federal, state, and local environmental laws, regulations, and ordinances; and (iv) that no legal action of any kind has been commenced or threatened with respect to its property. 8.2. Subject only to the representations of the parties in this section, each party acknowledges that neither party has made any representations or warranties of any nature to the other, and the property interests acquired by each party are acquired “AS IS” and “WHERE IS,” with all faults and limitations, and all defects, latent or otherwise. Each party who is the grantee of the interests subject to this Agreement further represents to the other that is has fully and completely examined the property, conducted inspections thereof, including environmental assessments to the extent such grantee has felt necessary or advisable, and releases the other party from any and all liability, obligation or responsibility in any way relating to the condition of the land. This release survives closing. 9. No Leases. Each party represents that there are no oral or written leases, rental agreements, licenses, permits, or any other agreements permitting a third party to use or occupy all or any portion of its property. 10. Conflict of Interest. This Agreement is subject to cancellation within three years after its execution pursuant to A.R.S. § 38-511 if any person significantly involved in initiating, negotiating, securing, drafting, or creating this Agreement on behalf of District or Town is, at any time while this Agreement or any extension of the Agreement is in effect, an employee or agent of any other party to the Agreement with respect to the subject matter of the Agreement. Page 4 11. Survival of Representation and Warranties. All representations and warranties contained herein survive the closing for ten years. 12. Entire Agreement. This signed document constitutes the entire Agreement between the parties, and no modification or amendment to this Agreement will be binding unless in writing and signed by both parties. 13. Remedies. If either party defaults under this Agreement, the other party may pursue all rights and remedies available at law or in equity. Each Party is signing this agreement on the date stated opposite that Party’s signature. COUNTY: PIMA COUNTY FLOOD CONTROL DISTRICT, a political taxing subdivision of the State of Arizona: ______________________________________________________ Chairman, Board of Directors Date ATTEST: ______________________________________________________ Clerk of Board Date APPROVED AS TO CONTENT: ______________________________________________________ Neil J. Konigsberg, Manager, Real Property Services Carmine Debonis, Deputy County Administrator, Public Works ______________________________________________________ Suzanne Shields, P.E. Director, Flood Control District Page 5 APPROVED AS TO FORM: ______________________________________________________ Kell Olson, Deputy County Attorney Town of Marana, an Arizona municipal corporation: ______________________________________________________ Mayor Date ATTEST: ______________________________________________________ Town Clerk Date APPROVED AS TO CONTENT: ______________________________________________________ Keith Brann, Town Engineer ______________________________________________________ Jim Conroy, Town Parks and Recreation Director APPROVED AS TO FORM: ______________________________________________________ Frank Cassidy, Town Attorney