HomeMy WebLinkAboutResolution 2024-016 Approving and authorizing the Mayor to sign the IGA with Pima County for Bike Path Construction & Cost Sharing MARANA RESOLUTION NO. 2024-016
RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO SIGN
THE INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF MARANA AND
PIMA COUNTY FOR THE BIKE PATH CONSTRUCTION& COST SHARING
WHEREAS Pima County is authorized pursuant to A.R.S. §§ 11-951 and 11-932 to
own real property and to develop, operate, and maintain parks and trail systems for the
benefit of its residents; and
WHEREAS the Town of Marana is authorized pursuant to 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; and
WHEREAS on October 16, 2018, the County and the Town entered into and
Intergovernmental Agreement between the Town of Marana,Pima County,and the Pima
County Flood Control District for the Shared Use and Development of Existing and
Future Trail and Trailhead improvements on County and Flood Control District
Properties (Pima County Contract No. CTN-PW-19-046), under which, the Town is
responsible for the maintenance of all shared use path and trailhead assets along the
Santa Cruz River trails system located north of the south right-of-way line of Ina Road;
and
WHEREAS the Town and the County desire to formalize their partnership for the
relocation of approximately 3,000 feet of the shared use path with the County being
responsible for the design and construction of the path relocation and the Town being
responsible for 50% of the project's construction costs; and
WHEREAS to that end, the County and the Town now desire to enter into the
Intergovernmental Agreement between the Town of Marana and Pima County for the
Bike Path Construction&Cost Sharing.
WHEREAS the Mayor and Council find that the terms and conditions of the
agreement are in the best interests of the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF MARANA, ARIZONA,that the Intergovernmental Agreement between
the Town of Marana and Pima County for the Bike Path Construction & Cost Sharing,
substantially in the same form attached to and incorporated by this reference in this
resolution as Exhibit A,is hereby approved,the Mayor is hereby authorized and directed
to sign it for and on behalf of the Town of Marana,and the Towri s Manager and staff are
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Resolution No.2024-016
hereby directed and authorized to undertake all other and further tasks required or
beneficial to carry out the terms, obligations, and objectives of the agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 20th day of February, 2024.
Mayor Ed Honea
ATTEST: APPROVED AS TO FORM:
David L. Udall, Town Clerk Jane all, Town Attorney
AA/1 )&
MARANA AZ
ESTABLISHED 1977
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Resolution No.2024-016
CTN-WW-24*142
Intergovernmental Agreement between
the Town of Marana and Pima County
for the Bike Path Construction &Cost Sharing
This Intergovernmental Agreement ("Agreement") is entered into by and between the
Town of Marana("Town"),an Arizona municipal corporation and Pima County,Arizona, a body
politic and corporate("County"), pursuant to Arizona Revised Statutes Section (A.R.S.) § 11-952.
Town and County are together referred to in this Agreement as the"Parties."
Recitals
A. Town is authorized by A.R.S. §§ 48-572(5), 9-276, and 9-494 to construct, reconstruct or
acquire parks,and trail systems.
B. Pima County Flood Control District ("District") is authorized by A.R.S. §§ 48-3603 and 48-
3624 to construct, operate, and maintain flood control works and storm-drainage for the
benefit of the District; preserve and restore floodplains; construct, operate, and maintain
incidental linear-park facilities; acquire property for those purposes; and cooperate with
municipalities in constructing flood-control projects and regulating floodplains.
C. County is authorized pursuant to A.R.S. §§ 11-95i and 11-932 to own real property and to
develop,operate,and maintain parks and trail systems for the benefit of its residents.
D. In 2013, County, Town, and District entered into a License Agreement (CTN-PW-13*175)
under which Town has developed and maintained trails upon certain County- and District-
owned properties for the benefits of the residents of Town and County.
E. Thereafter,in 2018,County,Town,and District entered into an Intergovernmental Agreement
(CTN-PW-19*o46) [hereinafter "2018 IGA"] to formalize the relationship among County,
Town, and District for the development, operation and maintenance of certain trails and
trailheads located on County and District properties. County and District further desired to
grant Town a right of entry over those County and District owned properties to allow Town to
undertake its construction, maintenance, and development activities with regard to the
recreational trails and trailheads on those properties.
F. The Parties now desire to enter into this Intergovernmental Agreement to formalize the
relationship among the Parties for the construction of approximately 3,00o ft of the loop
asphalt path on County and District properties referenced in the 2018 IGA under the cost-
sharing arrangement as described in this Agreement.
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,agree as follows:
i. Purpose.The purpose of this Agreement is to set forth the Parties'responsibilities related to
the construction of a portion of a loop asphalt path and cost-sharing terms related to the
construction. Specifically, it is the understanding of the Parties that County's contractor will
install approximately 3,00o ft of the bicycle loop asphalt path on County and District
properties as preliminarily illustrated in the project area map attached to and incorporated
herein by this reference as Exhibit A and as referenced in the 2018 IGA(the"Project").As set
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forth in Section 2 below,construction details,including the exact location of the path,are still
under design and subject to change. To that end, Exhibit A is attached and included in this
Agreement for reference and illustrative purposes only. Town will reimburse County for 50%
of the construction costs related to the Project upon County invoice as set forth by the terms
of this Agreement.
2. Design and Construction Responsibilities. County is responsible for Project design.
County is preparing or will prepare any necessary plans and specifications ("Project Plans").
County will provide Town an opportunity to review and comment on the Project Plans as they
are developed,but final responsibility for and approval of the Project Plans rests with County.
County may opt out of the design or construction of any Project element upon discovering one
or more environmental issues, species, cultural resources, or third-party property rights
acquisition costs that in County's judgment may cause County to exceed its anticipated budget
for the particular project element.Should the County elect to opt out of design or construction
of the Project,Town shall be relieved of its obligations under this Agreement.
1. Environmental Compliance. County will prepare and incorporate into the planning and
design 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 (such as the
cactus ferruginous pygmy-owl), and compliance with the National Pollutant Discharge
Elimination System(including preparation of a Storm Water Pollution Prevention Plan).
County will obtain any necessary Corps of Engineer permits and or approvals.
2. Cultural Resources. County shall ensure that potential impacts to cultural resources are
evaluated and treated in accordance with applicable local, state, and federal historic
preservation laws and regulations, including County Board of Supervisors Policy C3.1 7.
Prior to any ground disturbance, County shall ensure that a cultural resources Class III
inventory survey is conducted, all cultural resources are fully recorded and assessed for
their eligibility to the Arizona and National Registers of Historic Places, and
recommendations made regarding the mitigation of cultural resources that cannot be
avoided by the project causing the ground disturbing activities.Any mitigation of impact
to cultural resources must be in accordance with all application local, state, and federal
historic preservation laws and regulations. All cultural resources reports, plans, and
recommendations must be reviewed by the Pima County Office of Sustainability and
Conservation cultural resources division, and by appropriate state and federal agencies
as required. Cultural Resources mitigation must be satisfactorily completed prior to any
ground disturbing activities commencing. County shall ensure that A.R.S. § 41-844 is
followed to protect human burials that may be uncovered as a result of ground disturbing
activities.
3. Construction. County shall let and administer any construction contracts for the Project in
accordance with the requirements of Arizona Revised Statutes Title 34 and in accordance with
a Construction Schedule to be reviewed and approved by Town, County, as applicable, as set
forth below, before any work on County or District property commences. County shall have
the usual rights and obligations of the owner of a public construction contract. County shall
hire a contractor to install the improvements in accordance with the Project Plans.The County
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and Town shall share equally on the cost of the Project subject to the provisions of Section ii
of this Agreement.
1. Construction Schedule. County is responsible for preparing a construction schedule(the
"Construction Schedule") showing the anticipated timing and duration of each stage of
construction.County shall establish a final Construction Schedule and provide it to Town
as applicable within thirty(3o) days after County awards a construction contract for any
work on the Project.
2. Signage. County and Town have the right to install signage at the construction site in a
location of their choosing,provided that the sign does not interfere with the construction,
announcing that the Project is a County and Town project, and listing the names of the
members of the Board of Supervisors, Board of Directors and Mayor and Council as
applicable.
4. Utility Relocations. County is responsible for coordinating all utility relocations. County
and Town are responsible for the shared cost to relocate Town- and County-owned utilities,
and for the cost to relocate all other utilities for which the owner has a prior right that causes
the utility owner not to be legally responsible for utility relocation costs.
5. Rights of Way and Easements. The Parties believe that existing County- or District-
owned property and easements constitute all necessary rights-of-way and easements
necessary to complete the Project and thereafter maintain any trail and trailhead
improvements. To the extent any property rights must be acquired from third parties to
complete the Project, County is solely responsible for acquiring those property rights, either
by purchase or through its power of eminent domain. Town will provide County with any
records or documents in their possession that will assist County in acquiring any property
interests necessary for the Project.
6. Right of Entry. Pursuant to Section 7 of the 2018 IGA, Town may enter upon the County-
owned and District-owned Properties as shown on the Project Plans for planning,
construction, and maintenance purposes related to the Project.
7. Project Permits. County shall obtain any approvals, permissions, or permits necessary for
the Project.Town will provide to County,at no cost to County,any Town clearances or permits
necessary for County to construct the Project.
8. Public Participation. County will cooperatively manage any public participation processes
for the Project. County will coordinate all public participation activities with Town and will
coordinate all public meetings on the Project.
9. Project Manager and Representatives. County will furnish a Project Manager for the
Project and Town will designate a representative(the"Town Liaison")to be a liaison with the
County's Project Manager during construction of the Project. The Project Manager will
coordinate as appropriate with Town representatives during construction of the Project.
io. Disputes. In the event the Project Manager and Town Liaison disagree on any aspect of the
Project,the Regional Wastewater Reclamation Department("Department") Director and the
Director of the Town Parks and Recreation Department, or their designees, shall meet within
ten (10) 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
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if that meeting does not occur within the time frame specified above or otherwise agreed upon,
the Department Director, Project Manager, and the Town Manager, and/or their designees
will meet within ten (io) calendar days to attempt to reach a mutually agreeable resolution,
unless the Parties agree upon another time frame 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,this Agreement will terminate.
ii. Financing of the Project.Town shall reimburse County for 50%of the Project construction
costs related to the loop work performed by County's contractor for the areas specified in the
Project Plans within thirty(30) days of receiving an invoice from County.
12. Regulation of the Project during Construction. County has responsibility for and
control over the Project during construction.
13. Inspection. Town may inspect any portion of the Project construction for substantial
compliance with drawings and specifications.Additionally, Town may inspect any portion of
the completed project for maintenance compliance. In the event Town inspection or
comments from users indicates a safety concern, Department shall be responsible for taking
all action and expense necessary to remedy the issue. Department will allow official Town
representatives reasonable access to the Project site during construction.The Project Manager
and Town inspectors will cooperate and consult with each other during Project construction.
14. Maintenance. Town will be responsible for maintenance of the portion of the loop
constructed under this Intergovernmental Agreement and shown in the Project Plans. At a
minimum,the Town's maintenance obligations pursuant to this Agreement shall be consistent
with the Scope of Maintenance document attached to the 2018 IGA as Exhibit B.
15. Ownership of Improvements. District or County will own all improvements installed as
part of the Project as their underlying property ownership interests may appear.If third-party
property rights are acquired pursuant to Section 5 above, Town will own all such property
rights and improvements located in the town limits of the Town, and County will own any
other property rights and improvements.
16. Term and Termination.
1. Term. This Agreement is effective on the date of the last signature of a party("Effective
Date"). The terms of this Agreement that pertain to design and construction expire on
final completion and acceptance of the Project by Town.
2. 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 Section,the party
allegedly in default shall be given written notice by the party claiming default 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 party
claiming the default may terminate this Agreement. Any such termination will not
relieve any other party from liabilities or costs already incurred under this
Agreement.
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ii. Conflict of Interest.This Agreement may be terminated for 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 will automatically
terminate if, for any reason, Town or County fail to appropriate sufficient funds to
design, construct, or maintain the Project or to perform any other obligation of any
party hereunder.
17. Indemnification. Each party (as Indemnitor) agrees to indemnify, defend and hold
harmless the other party(as Indemnitee)from and against any and all claims,losses,liability,
costs or expenses(including reasonable attorney's fees) [hereinafter collectively referred to as
"claims"]for bodily injury of any person(including death)or property damage,but only to the
extent that such injury or damage is caused or alleged to be caused by a negligent or
intentional wrongful act or omission of the Indemnitor, or of any of its officers, officials,
agents, employees,or volunteers.
18. Insurance. Each party will obtain and maintain at its own expense, during the entire term
of this IGA the following type(s) and amounts of insurance:
1. Commercial General Liability in the amount of $2,000,000.00 combined single limit
Bodily Injury and Property Damage.
2. Commercial or Business automobile liability coverage for owned, non-owned and hired
vehicles used in the performance of this IGA with limits in the amount of $2,000,000.00
combined single limit or$1,000,000.00 Bodily Injury, $1,000,000.00 Property Damage.
3. If required by law, workers' compensation coverage including employees' liability
coverage.
4. Each party will provide thirty(30) days written notice to the other party of cancellation,
non-renewal or material change of coverage.
5. The above requirement maybe alternatively met through a self-insurance program under
to A.R.S. §§11-261 and 11-98i(or if a school district,§15-382)or participation in an insurance
risk pool under A.R.S. § 11.952.oi(if a school district, § 15-382), at no less than the minimum
coverage levels set forth in this Section.
19. Books and Records. County will keep and maintain proper and complete books, records
and accounts of the Project, which will be maintained in accordance with County's records
retention policy and made available for inspection by Town upon reasonable notice.
20.Construction of Agreement.
1. 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.
2. Amendment.This Agreement shall not be modified,amended, altered or changed except
by written agreement signed by the Parties.
3. 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.
5
4. 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.
5. 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 will 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 a party in an attempt to reach an
agreement on a substitute provision.
21. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or
extending the legal jurisdiction of Town or County.
22.No Joint Venture. It is not intended by this Agreement to, and nothing contained in this
Agreement will be construed to, create any partnership, joint venture or employment
relationship between the Parties or create any employer-employee relationship between any
party and any other party's employees,except as and only to the extent expressly provided for
in Section 24 below. No party is liable for any debts, accounts, obligations or other liabilities
whatsoever of the others, including (without limitation) the other parties' obligations to
withhold Social Security and income taxes for itself or any of its employees.
23.Worker's Compensation. Each party will comply with the notice of A.R.S. § 23-1022 (E).
For purposes of A.R.S. § 23-1022, irrespective of the operations protocol in place, each party
is solely responsible for the payment of Worker's Compensation benefits for its employees.
24.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.
25.Compliance with Laws.The Parties will comply with all applicable federal, state and local
laws, rules, regulations, standards and executive orders, without limitation to those
designated within this Agreement.The laws and regulations of the State of Arizona will govern
the rights of the parties,the performance of this IGA and any disputes.Any action relating to
this IGA will be brought in a court in Pima County.
1. 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.
2. 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.
3. Legal Arizona Workers Act Compliance.
i. Each party warrants to the others that it will, at all times during the term of this
Agreement, comply with all federal immigration laws applicable to the warranting
party's employment of its employees,and with the requirements of A.R.S.§23-214(A)
6
(together, the "State and Federal Immigration Laws"). Each party further agrees to
ensure that each contractor who performs work associated with this Agreement (i)
complies with the State and Federal Immigration Laws, and (ii) ensures that any
subcontractor who performs work for the contractor complies with the State and
Federal Immigration Laws.
ii. Each party will further require that each contractor who performs work subject to this
Agreement advises each subcontractor of the party's rights, and the subcontractor's
obligations, with respect to this subsection, by including a provision in each
subcontract substantially in the following form:
"Subcontractor hereby warrants that it will at all times during the term of this
contract comply with all federal immigration laws applicable to subcontractor's
employees, and with the requirements of A.R.S. § 23-214(A). Subcontractor
further agrees that [County, District or Town] may inspect the Subcontractor's
books and records to ensure that Subcontractor is in compliance with these
requirements.Any breach of this paragraph by Subcontractor will be deemed to
be a material breach of this contract subjecting Subcontractor to penalties up to
and including suspension or termination of this contract."
iii. Any breach of the warranty of compliance with the State and Federal Immigration
Laws by either party,by that party's contractor doing work subject to this Agreement,
or by a subcontractor of that party's contractor doing work subject to this Agreement
shall be deemed to be a material breach of this Agreement subjecting the breaching
party to penalties up to and including suspension or termination of this Agreement.
A party in breach of the warranty of compliance with State and Federal Immigration
Laws shall further be liable to the other party for any additional costs attributable
directly or indirectly to remedial action under this subsection.
26.Waiver. Waiver by any party of any breach of any term, covenant or condition herein
contained is not 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.
27. Force Majeure.A party is not 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. Any
party rendered unable to fulfill any obligations by reason of uncontrollable forces shall
exercise due diligence to remove such inability with all reasonable dispatch.
28.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
7
addressed as follows(or at such other address as maybe identified by a party in writing to the
other party):
Town:
Town of Marana With a copy to:
Town of Marana
Attn: Town Manager Attn: Town Attorney
Marana Municipal Complex Marana Municipal Complex
11555 W Civic Center Dr 11555 W Civic Center Dr
Marana AZ 85653 Marana AZ 85653
County:
Real Property Services Administrator
Attn: Manager
201 N. Stone, 6th Floor
Tucson,AZ 85701
Regional Wastewater Reclamation Department:
Jackson Jenkins, Director
201 N. Stone Avenue
Public Works Building, 8th Fl
Tucson,AZ 85701
With copies to:
County Administrator
130 West Congress St., loth Floor
Tucson,Arizona 85701
Clerk of the Board
130 West Congress, 5th Floor
Tucson,Arizona 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.
29.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.
[Signature Page Follows.]
8
In Witness Whereof, County has caused this Agreement to be executed by the Chair of its
Board of Supervisors and attested to by the Clerk of the Board and the Town has caused this
Agreement to be executed by the Mayor upon resolution of the Mayor and Council and attested to
by its Clerk.
TOWN OF MARANA,an Arizona
municipal corf oration Attest:
�''( 4(2 , z.� _ -'•�
Ed Honea,Mayor Town Clerk
2. - Appr d as to Content:
Date � /'
Ji onroy, Director,Marana Parks&
reation
PIMA CO Attest:
414
S �
Adel' . Grijalva,Ch ' W lard of Melissa Manrique C r of Boa d
Supervisors
APR 0 2 2024 Approved as to Content:
Date
ackson J ns,Director, Pima County
Regional astewater Reclamation
Department
Yhit(2.Li
Date
9
In Witness Whereof, County has caused this Agreement to be executed by the Chair of its
Board of Supervisors and attested to by the Clerk of the Board and the Town has caused this
Agreement to be executed by the Mayor upon resolution of the Mayor and Council and attested to
by its Clerk.
TOWN OF MARANA, an Arizona
municipal co oration Attest: ;-r
Ed Honea, Mayor Town Clerk
Z—7-7 Appr d as to Content:
Date
Ji onroy, Direct() , Marana Parks&
R reation
PIMA COUNTY Attest:
Adelita S. Grijalva, Chair, Board of Melissa Manriquez, Clerk of the Board
Supervisors
Approved as to Content:
Date
Jackson Jenkins, Director, Pima County
Regional Wastewater Reclamation
Department
Date
9
Intergovernmental Agreement Determination
The foregoing Intergovernmental Agreement between Pima County and the Town of Marana has
been reviewed pursuant to A.RS. §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 the undersigned.
PIMA COUNTY:
2/28/24
Cindy n, eputy County Attorney Date
TOWN OF MARANA:
0e4.Jane F 'r ,Town ttorney D
10
Intergovernmental Agreement Determination
The foregoing Intergovernmental Agreement between Pima County and the Town of Marana has
been reviewed pursuant to A.RS. § 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 the undersigned.
PIMA COUNTY:
Cindy Nguyen, Deputy County Attorney Date
TOWN OF MARANA:
OeW/
Jane F •r ,Town ttorney D
10
EXHIBIT A
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Exhibit A to Marana Resolution No. 2024-016
Intergovernmental Agreement between
the Town of Marana and Pima County
for the Bike Path Construction&Cost Sharing
This Intergovernmental Agreement ("Agreement") is entered into by and between the
Town of Marana ("Town"), an Arizona municipal corporation and Pima County,Arizona, a body
politic and corporate("County"), pursuant to Arizona Revised Statutes Section(A.R.S.) § 11-952.
Town and County are together referred to in this Agreement as the"Parties."
Recitals
A. Town is authorized by A.R.S. §§ 48-572(5), 9-276, and 9-494 to construct, reconstruct or
acquire parks, and trail systems.
B. Pima County Flood Control District ("District") is authorized by A.R.S. §§ 48-3603 and 48-
3624 to construct, operate, and maintain flood control works and storm-drainage for the
benefit of the District; preserve and restore floodplains; construct, operate, and maintain
incidental linear-park facilities; acquire property for those purposes; and cooperate with
municipalities in constructing flood-control projects and regulating floodplains.
C. County is authorized pursuant to A.R.S. §§ 11-95i and 11-932 to own real property and to
develop, operate, and maintain parks and trail systems for the benefit of its residents.
D. In 2013, County, Town, and District entered into a License Agreement (CTN-PW-13*175)
under which Town has developed and maintained trails upon certain County- and District-
owned properties for the benefits of the residents of Town and County.
E. Thereafter,in 2018,County,Town,and District entered into an Intergovernmental Agreement
(CTN-PW-19*o46) [hereinafter "2018 IGA"] to formalize the relationship among County,
Town, and District for the development, operation and maintenance of certain trails and
trailheads located on County and District properties. County and District further desired to
grant Town a right of entry over those County and District owned properties to allow Town to
undertake its construction, maintenance, and development activities with regard to the
recreational trails and trailheads on those properties.
F. The Parties now desire to enter into this Intergovernmental Agreement to formalize the
relationship among the Parties for the construction of approximately 3,00o ft of the loop
asphalt path on County and District properties referenced in the 2018 IGA under the cost-
sharing arrangement as described in this Agreement.
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, agree as follows:
i. Purpose.The purpose of this Agreement is to set forth the Parties'responsibilities related to
the construction of a portion of a loop asphalt path and cost-sharing terms related to the
construction. Specifically, it is the understanding of the Parties that County's contractor will
install approximately 3,o0o ft of the bicycle loop asphalt path on County and District
properties as preliminarily illustrated in the project area map attached to and incorporated
herein by this reference as Exhibit A and as referenced in the 2018 IGA{the"Project").As set
1
Exhibit A to Marana Resolution No. 2024-016
forth in Section 2 below,construction details,including the exact location of the path,are still
under design and subject to change. To that end, Exhibit A is attached and included in this
Agreement for reference and illustrative purposes only. Town will reimburse County for 50%
of the construction costs related to the Project upon County invoice as set forth by the terms
of this Agreement.
2. Design and Construction Responsibilities. County is responsible for Project design.
County is preparing or will prepare any necessary plans and specifications ("Project Plans").
County will provide Town an opportunity to review and comment on the Project Plans as they
are developed,but final responsibility for and approval of the Project Plans rests with County.
County may opt out of the design or construction of any Project element upon discovering one
or more environmental issues, species, cultural resources, or third-party property rights
acquisition costs that in County's judgment may cause County to exceed its anticipated budget
for the particular project element.Should the County elect to opt out of design or construction
of the Project,Town shall be relieved of its obligations under this Agreement.
1. Environmental Compliance. County will prepare and incorporate into the planning and
design 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 (such as the
cactus ferruginous pygmy-owl), and compliance with the National Pollutant Discharge
Elimination System(including preparation of a Storm Water Pollution Prevention Plan).
County will obtain any necessary Corps of Engineer permits and or approvals.
2. Cultural Resources. County shall ensure that potential impacts to cultural resources are
evaluated and treated in accordance with applicable local, state, and federal historic
preservation laws and regulations, including County Board of Supervisors Policy C3.1 7.
Prior to any ground disturbance, County shall ensure that a cultural resources Class III
inventory survey is conducted, all cultural resources are fully recorded and assessed for
their eligibility to the Arizona and National Registers of Historic Places, and
recommendations made regarding the mitigation of cultural resources that cannot be
avoided by the project causing the ground disturbing activities.Any mitigation of impact
to cultural resources must be in accordance with all application local, state, and federal
historic preservation laws and regulations. All cultural resources reports, plans, and
recommendations must be reviewed by the Pima County Office of Sustainability and
Conservation cultural resources division, and by appropriate state and federal agencies
as required. Cultural Resources mitigation must be satisfactorily completed prior to any
ground disturbing activities commencing. County shall ensure that A.R.S. § 41-844 is
followed to protect human burials that may be uncovered as a result of ground disturbing
activities.
3. Construction. County shall let and administer any construction contracts for the Project in
accordance with the requirements of Arizona Revised Statutes Title 34 and in accordance with
a Construction Schedule to be reviewed and approved by Town, County, as applicable, as set
forth below, before any work on County or District property commences. County shall have
the usual rights and obligations of the owner of a public construction contract. County shall
hire a contractor to install the improvements in accordance with the Project Plans.The County
2
Exhibit A to Marana Resolution No. 2024-016
and Town shall share equally on the cost of the Project subject to the provisions of Section ii
of this Agreement.
1. Construction Schedule. County is responsible for preparing a construction schedule (the
"Construction Schedule") showing the anticipated timing and duration of each stage of
construction.County shall establish a final Construction Schedule and provide it to Town
as applicable within thirty(3o) days after County awards a construction contract for any
work on the Project.
2. Signage. County and Town have the right to install signage at the construction site in a
location of their choosing,provided that the sign does not interfere with the construction,
announcing that the Project is a County and Town project, and listing the names of the
members of the Board of Supervisors, Board of Directors and Mayor and Council as
applicable.
4. Utility Relocations. County is responsible for coordinating all utility relocations. County
and Town are responsible for the shared cost to relocate Town- and County-owned utilities,
and for the cost to relocate all other utilities for which the owner has a prior right that causes
the utility owner not to be legally responsible for utility relocation costs.
5. Rights of Way and Easements. The Parties believe that existing County- or District-
owned property and easements constitute all necessary rights-of-way and easements
necessary to complete the Project and thereafter maintain any trail and trailhead
improvements. To the extent any property rights must be acquired from third parties to
complete the Project, County is solely responsible for acquiring those property rights, either
by purchase or through its power of eminent domain. Town will provide County with any
records or documents in their possession that will assist County in acquiring any property
interests necessary for the Project.
6. Right of Entry. Pursuant to Section 7 of the 2018 IGA, Town may enter upon the County-
owned and District-owned Properties as shown on the Project Plans for planning,
construction, and maintenance purposes related to the Project.
7. Project Permits. County shall obtain any approvals, permissions, or permits necessary for
the Project.Town will provide to County,at no cost to County,any Town clearances or permits
necessary for County to construct the Project.
8. Public Participation. County will cooperatively manage any public participation processes
for the Project. County will coordinate all public participation activities with Town and will
coordinate all public meetings on the Project.
9. Project Manager and Representatives. County will furnish a Project Manager for the
Project and Town will designate a representative(the"Town Liaison")to be a liaison with the
County's Project Manager during construction of the Project. The Project Manager will
coordinate as appropriate with Town representatives during construction of the Project.
io. Disputes. In the event the Project Manager and Town Liaison disagree on any aspect of the
Project,the Regional Wastewater Reclamation Department("Department") Director and the
Director of the Town Parks and Recreation Department, or their designees, shall meet within
ten (1o) 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
3
Exhibit A to Marana Resolution No. 2024-016
if that meeting does not occur within the time frame specified above or otherwise agreed upon,
the Department Director, Project Manager, and the Town Manager, and/or their designees
will meet within ten (1o) calendar days to attempt to reach a mutually agreeable resolution,
unless the Parties agree upon another time frame 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,this Agreement will terminate.
11. Financing of the Project.Town shall reimburse County for 50%of the Project construction
costs related to the loop work performed by County's contractor for the areas specified in the
Project Plans within thirty(30) days of receiving an invoice from County.
12. Regulation of the Project during Construction. County has responsibility for and
control over the Project during construction.
13. Inspection. Town may inspect any portion of the Project construction for substantial
compliance with drawings and specifications.Additionally, Town may inspect any portion of
the completed project for maintenance compliance. In the event Town inspection or
comments from users indicates a safety concern, Department shall be responsible for taking
all action and expense necessary to remedy the issue. Department will allow official Town
representatives reasonable access to the Project site during construction.The Project Manager
and Town inspectors will cooperate and consult with each other during Project construction.
14. Maintenance. Town will be responsible for maintenance of the portion of the loop
constructed under this Intergovernmental Agreement and shown in the Project Plans. At a
minimum,the Town's maintenance obligations pursuant to this Agreement shall be consistent
with the Scope of Maintenance document attached to the 2o18 IGA as Exhibit B.
15. Ownership of Improvements. District or County will own all improvements installed as
part of the Project as their underlying property ownership interests may appear.If third-party
property rights are acquired pursuant to Section 5 above, Town will own all such property
rights and improvements located in the town limits of the Town, and County will own any
other property rights and improvements.
16. Term and Termination.
1. Term. This Agreement is effective on the date of the last signature of a party ("Effective
Date"). The terms of this Agreement that pertain to design and construction expire on
final completion and acceptance of the Project by Town.
2. 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 Section,the party
allegedly in default shall be given written notice by the party claiming default 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 party
claiming the default may terminate this Agreement. Any such termination will not
relieve any other party from liabilities or costs already incurred under this
Agreement.
4
Exhibit A to Marana Resolution No. 2024-016
ii. Conflict of Interest. This Agreement may be terminated for 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 will automatically
terminate if, for any reason, Town or County fail to appropriate sufficient funds to
design, construct, or maintain the Project or to perform any other obligation of any
party hereunder.
17. Indemnification. Each party (as Indemnitor) agrees to indemnify, defend and hold
harmless the other party(as Indemnitee)from and against any and all claims,losses,liability,
costs or expenses(including reasonable attorney's fees) [hereinafter collectively referred to as
"claims"]for bodily injury of any person(including death)or property damage,but only to the
extent that such injury or damage is caused or alleged to be caused by a negligent or
intentional wrongful act or omission of the Indemnitor, or of any of its officers, officials,
agents, employees, or volunteers.
18. Insurance. Each party will obtain and maintain at its own expense, during the entire term
of this IGA the following type(s) and amounts of insurance:
1. Commercial General Liability in the amount of $2,000,000.0o combined single limit
Bodily Injury and Property Damage.
2. Commercial or Business automobile liability coverage for owned, non-owned and hired
vehicles used in the performance of this IGA with limits in the amount of $2,000,000.00
combined single limit or $1,000,000.00 Bodily Injury, $1,000,000.00 Property Damage.
3. If required by law, workers' compensation coverage including employees' liability
coverage.
4. Each party will provide thirty(30) days written notice to the other party of cancellation,
non-renewal or material change of coverage.
5. The above requirement may be alternatively met through a self-insurance program under
to A.R.S. §§11-26i and 11-981(or if a school district,§15-382)or participation in an insurance
risk pool under A.R.S. § 11.952.o1(if a school district, § 15-382), at no less than the minimum
coverage levels set forth in this Section.
19. Books and Records. County will keep and maintain proper and complete books, records
and accounts of the Project, which will be maintained in accordance with County's records
retention policy and made available for inspection by Town upon reasonable notice.
20.Construction of Agreement.
1. 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.
2. Amendment.This Agreement shall not be modified,amended, altered or changed except
by written agreement signed by the Parties.
3. 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.
5
Exhibit A to Marana Resolution No. 2024-016
4. 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.
5. 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 will 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 a party in an attempt to reach an
agreement on a substitute provision.
21. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or
extending the legal jurisdiction of Town or County.
22.No Joint Venture. It is not intended by this Agreement to, and nothing contained in this
Agreement will be construed to, create any partnership, joint venture or employment
relationship between the Parties or create any employer-employee relationship between any
party and any other party's employees,except as and only to the extent expressly provided for
in Section 24 below. No party is liable for any debts, accounts, obligations or other liabilities
whatsoever of the others, including (without limitation) the other parties' obligations to
withhold Social Security and income taxes for itself or any of its employees.
23.Worker's Compensation. Each party will comply with the notice of A.R.S. § 23-1022 (E).
For purposes of A.R.S. § 23-1022, irrespective of the operations protocol in place, each party
is solely responsible for the payment of Worker's Compensation benefits for its employees.
24.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.
25.Compliance with Laws.The Parties will comply with all applicable federal,state and local
laws, rules, regulations, standards and executive orders, without limitation to those
designated within this Agreement.The laws and regulations of the State of Arizona will govern
the rights of the parties,the performance of this IGA and any disputes.Any action relating to
this IGA will be brought in a court in Pima County.
1. 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.
2. Americans with Disabilities Act.This Agreement is subject to all applicable provisions of
the Americans with Disabilities Act(Public Law 1oi-336, 42 U.S.C. 12101-12213) and all
applicable federal regulations under the Act, including 28 CFR Parts 35 and 36.
3. Legal Arizona Workers Act Compliance.
i. Each party warrants to the others that it will, at all times during the term of this
Agreement, comply with all federal immigration laws applicable to the warranting
party's employment of its employees,and with the requirements of A.R.S.§23-214(A)
6
Exhibit A to Marana Resolution No. 2024-016
(together, the "State and Federal Immigration Laws"). Each party further agrees to
ensure that each contractor who performs work associated with this Agreement (i)
complies with the State and Federal Immigration Laws, and (ii) ensures that any
subcontractor who performs work for the contractor complies with the State and
Federal Immigration Laws.
ii. Each party will further require that each contractor who performs work subject to this
Agreement advises each subcontractor of the party's rights, and the subcontractor's
obligations, with respect to this subsection, by including a provision in each
subcontract substantially in the following form:
"Subcontractor hereby warrants that it will at all times during the term of this
contract comply with all federal immigration laws applicable to subcontractor's
employees, and with the requirements of A.R.S. § 23-214(A). Subcontractor
further agrees that [County, District or Town] may inspect the Subcontractor's
books and records to ensure that Subcontractor is in compliance with these
requirements.Any breach of this paragraph by Subcontractor will be deemed to
be a material breach of this contract subjecting Subcontractor to penalties up to
and including suspension or termination of this contract."
iii. Any breach of the warranty of compliance with the State and Federal Immigration
Laws by either party,by that party's contractor doing work subject to this Agreement,
or by a subcontractor of that party's contractor doing work subject to this Agreement
shall be deemed to be a material breach of this Agreement subjecting the breaching
party to penalties up to and including suspension or termination of this Agreement.
A party in breach of the warranty of compliance with State and Federal Immigration
Laws shall further be liable to the other party for any additional costs attributable
directly or indirectly to remedial action under this subsection.
26.Waiver. Waiver by any party of any breach of any term, covenant or condition herein
contained is not 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.
27. Force Majeure.A party is not 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. Any
party rendered unable to fulfill any obligations by reason of uncontrollable forces shall
exercise due diligence to remove such inability with all reasonable dispatch.
28.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
7
Exhibit A to Marana Resolution No. 2024-016
addressed as follows(or at such other address as maybe identified by a party in writing to the
other party):
Town:
Town of Marana With a copy to:
Town of Marana
Attn: Town Manager Attn:Town Attorney
Marana Municipal Complex Marana Municipal Complex
11555 W Civic Center Dr 11555 W Civic Center Dr
Marana AZ 85653 Marana AZ 85653
County:
Real Property Services Administrator
Attn: Manager
201 N. Stone, 6th Floor
Tucson,AZ 85701
Regional Wastewater Reclamation Department:
Jackson Jenkins, Director
201 N. Stone Avenue
Public Works Building, 8th Fl
Tucson,AZ 85701
With copies to:
County Administrator
13o West Congress St., loth Floor
Tucson,Arizona 85701
Clerk of the Board
13o West Congress, 5th Floor
Tucson,Arizona 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.
29.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.
[Signature Page Follows.]
8
Exhibit A to Marana Resolution No. 2024-016
In Witness Whereof, County has caused this Agreement to be executed by the Chair of its
Board of Supervisors and attested to by the Clerk of the Board and the Town has caused this
Agreement to be executed by the Mayor upon resolution of the Mayor and Council and attested to
by its Clerk.
TOWN OF MARANA, an Arizona
municipal corporation Attest:
Ed Honea, Mayor Town Clerk
Approved as to Content:
Date
Jim Conroy, Director, Marana Parks&
Recreation
PIMA COUNTY Attest:
Adelita S. Grijalva, Chair, Board of Melissa Manriquez, Clerk of the Board
Supervisors
Approved as to Content:
Date
Jackson Jenkins, Director, Pima County
Regional Wastewater Reclamation
Department
Date
9
Exhibit A to Marana Resolution No. 2024-016
Intergovernmental Agreement Determination
The foregoing Intergovernmental Agreement between Pima County and the Town of Marana has
been reviewed pursuant to A.RS. § 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 the undersigned.
PIMA COUNTY:
Cindy Nguyen, Deputy County Attorney Date
TOWN OF MARANA:
Jane Fairall,Town Attorney Date
10
Exhibit A to Marana Resolution No. 2024-016
EXHIBIT A
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