ASU - MARICOPA COUNTY AIR QUALITY DEPARTMENT MASTER IGA 6-24-16 UPDATE.PDF

ARIZONA STATE UNIVERSITY
AND
MARICOPA COUNTY AIR QUALITY DEPARTMENT
MASTER INTERGOVERNMENTAL AGREEMENT
This Master Intergovernmental Agreement (“Agreement”) is entered into this 1st day of July, 2016 (the
“Effective Date”) by and between Maricopa County, a political subdivision of the State of Arizona, for
and on behalf of the Air Quality Department, having its principal place of business at 1001 North Central
Avenue, Suite 125, Phoenix, AZ 85004 (“Client”), and The Arizona Board of Regents for and on behalf of
Arizona State University and its Walton Sustainability Solutions Initiatives: Global Sustainability Solutions
Services having its place of business at 21 E. 6th Street, Suite 126C, Tempe, AZ 85281 (“ASU”).
RECITALS
A. The parties share a common interest in advancing initiatives directed at improving air
quality, which includes increasing energy efficiency, reducing harmful emissions and waste, and finding
innovative solutions to Arizona’s environmental, social and economic challenges to better serve the
State and its communities.
B. The parties are authorized to enter into this Agreement pursuant to Arizona Revised
Statutes (“A.R.S.”) §§ 11-951 through 11-954.
C. Accordingly, the parties desire to enter into this Agreement, which provides for a
collaboration in which the parties share their expertise, knowledge, and resources (as provided for in
this Agreement) with one another to analyze and address various air quality challenges from time to
time and described more fully in each scope of work (the “Services”) to be subsequently agreed to by
the parties in the form set forth on Exhibit A hereto which is incorporated herein by this reference
(each, a “Scope of Work”). The Services provide for a wide array of research, development, education,
and solution services to more effectively manage resources and create economic value.
D. ASU’s Walton Sustainability Solutions Initiatives (“Walton”) has the capability, facilities
and equipment to provide the Services to Client.
E. ASU is empowered by A.R.S. §§15-1625, et seq., to enter into this Agreement and has
delegated to the undersigned the authority to execute this Agreement on behalf of ASU.
F. The performance of the Services is consistent, compatible, and beneficial to the role and
mission of ASU to provide educational experiences for students and to encourage and support research
and related educational activities.
AGREEMENT
1. Scope of Work. Walton will use reasonable efforts to provide the Services requested by Client
from time to time through a mutually signed Scope of Work. The Services will be provided under the
direction and supervision of the ASU contact named in the Scope of Work. The parties agree that ASU
will have discretion to involve its students, staff, and/or faculty members in the conduct and
performance of the Services described in the Scope of Work. Prior to involvement of students, staff,
and/or faculty in the conduct and performance of the Services, ASU agrees that Client may review and, if
necessary, make reasonable requests to find suitable substitute student(s), staff, and/or faculty
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member(s). To the extent there are any conflicts between the provisions of any Scope of Work and this
Agreement, the terms of this Agreement will control.
2. Scheduling Services. The Parties will mutually agree to scheduling of the Services through a
mutually signed Scope of Work. Reasonable efforts will be made to avoid conflict with ASU’s educational
and research programs.
3. Term and Termination.
3.1 The term of this Agreement will be Five Years commencing on the Effective Date and
will terminate as provided herein. The parties may modify or extend this Agreement at any time by
mutual written consent.
3.2 Either party may terminate this Agreement at any time by giving the other party not less
than thirty (30) days prior written notice. If this Agreement is terminated by Client, Client will remain
responsible for payment to ASU for all Services performed through the date of termination and for
reimbursement to ASU of all non-cancelable commitments incurred in the performance of the Services.
Upon termination, property purchased in furtherance of this Agreement will remain the property of the
purchasing party, unless expressly specified otherwise.
4. Compensation and Invoicing.
4.1 Client will pay ASU for the Services performed under this Agreement, not to exceed
$750,000 over the term of the agreement in accordance with the rate schedule set forth in the
applicable Scopes of Work. Client acknowledges and agrees that rates are subject to change from time
to time but that rates set forth on a Scope of Work will not change while work thereunder is in progress.
Client will remit the amount of the contract price due for Services rendered under this Agreement upon
receipt of invoices from ASU issued in accordance with the schedule and conditions set forth in the
applicable Scopes of Work. Invoices are due and payable within 30 days. Questions regarding invoices
should be directed to the ASU contact identified in the Scopes of Work. ASU will send invoices to the
Client contact identified in the Scopes of Work. Client will send checks or paper remittance advices to
the payment address set forth in the Scopes of Work.
4.2 ASU reserves the right to subject invoices not paid within thirty (30) days of the invoice
date to a 4% per month late fee on the unpaid balance for any amounts not in dispute. ASU reserves the
right to discontinue the Services if Client fails to make payments when due. In the event of non-
payment, ASU may terminate all further work on the Services and seek full payment from Client for all
work performed and all expenses incurred including allocable costs, pursuant to the termination clause
of this Agreement including the collection of payment. Should it become necessary for ASU to
commence collection proceedings or retain an attorney to enforce any of the terms of this Agreement,
Client will pay all reasonable attorneys’ fees and the costs of collection incurred by ASU.
5. No Warranty. ASU neither makes nor will be deemed to have made any representation or
warranty whatsoever (express or implied) regarding any outcome obtained or deliverable delivered
hereunder including any outcome desired by Client. Any decision regarding safety, applicability,
marketability, effectiveness for any purpose, or other use or disposition of said outcome will be the sole
responsibility of Client and/or its assigns and licensees.
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6. No University Endorsements. In no event will Client (or its successors, employees, agents and
contractors) state or imply in any publication, advertisement or other medium that ASU has approved,
endorsed or tested any product or service. In no event will ASU’s performance of any Services
hereunder be considered a test of the effectiveness or the basis for any endorsement of a product or
service.
7. Use of Names or Logos. Neither party will use any names, service marks, trademarks, trade
names, logos or other identifying names, domain names or identifying marks of the other party
(“Marks”), or the name of any representative or employee of the other party in any sales promotion
work or advertising, or any form of publicity, without the prior written permission of the party that owns
the Marks in each instance. Use of any party’s Marks must comply with the owning party’s
requirements, including using the “®” indication of a registered trademark where applicable.
8. Similar Research; Publications. Nothing in this Agreement will be construed to limit the
freedom of ASU or of its researchers who are not participants under this Agreement from engaging in
similar services made under other grants, contracts or agreements with parties other than Client. Client
recognizes that under ASU policy, the final results of work performed under this Agreement must be
publishable. Client agrees that ASU and its employees and students engaged in work under this
Agreement will be free to present and/or publish the final results and methods of such work at
symposia, professional meetings and other venues, and in journals, theses, dissertations and other
documents of their own choosing. ASU will furnish copies of proposed manuscripts to Client for review
prior to publication or public presentation. If Client determines that confidential or proprietary
information is inadvertently disclosed in the proposed manuscript, Client will notify ASU. In no event will
ASU delay publication for more than thirty (30) days from receipt by Client of such manuscript for
review. In the event a patent application is being filed, ASU will allow ninety (90) days from the date
Client first received said manuscript for the patent application to be filed.
9. Export Controls. Client will notify ASU in writing if any technological information or data
provided to ASU under this Agreement is subject to export controls under U.S. law or if technological
information or data that Client is requesting ASU to produce during the course of work under this
Agreement is expected to be subject to such controls. Client will notify ASU of the applicable export
controls (for example, Commerce Control List designations, reasons for control, countries for which an
export license is required). ASU will have the right to decline export controlled information or tasks
requiring production of such information.
10. Independent Contractor. Each party is an independent contractor and is independent of the
other party. Under no circumstances will any employees of one party be deemed the employees of the
other party for any purpose. This Agreement does not create a partnership, joint venture or agency
relationship between the parties of any kind or nature. This Agreement does not create any fiduciary or
other obligation between the parties, except for those obligations expressly and specifically set forth
herein. Neither party will have any right, power, or authority under this Agreement to act as a legal
representative of the other party, and neither party will have any power to obligate or bind the other or
to make any representations, express or implied, on behalf of or in the name of the other in any manner
or for any purpose whatsoever contrary to the provisions of this Agreement. Each party acknowledges
that the relationship of the parties hereunder is non-exclusive.
11. Notices. All notices, requests, demands and other communications hereunder will be deemed to
have been duly given if the same shall be in writing and be delivered (a) personally, (b) by registered or
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certified mail, postage prepaid, (c) by facsimile transmission, with a copy by regular mail or (d) by
overnight delivery service and addressed to the recipient’s address set forth in the Scope of Work.
Either party may change its address for notices or other contact details by giving written notice to the
other party in accordance with this Section. The parties agree to acknowledge in writing the receipt of
any written demand, notice, report, request or other communication under this Section that is delivered
in person.
12. Force Majeure.
12.1 No liability will result from the delay in performance or nonperformance caused by force
majeure or circumstances beyond the reasonable control of the party affected, including, but not limited
to, acts of God, fire, flood, substantial snowstorm, war, terrorism, embargo, any United States or foreign
government regulation, direction or request, accident, strike or other labor dispute or labor trouble, or
any failure or delay of any transportation, power or communications system or any other or similar
cause beyond that party’s reasonable control.
12.2 The party which is so prevented from performing will give prompt notice to the other
party of the occurrence of such event of force majeure, the expected duration of such condition and the
steps which it is taking to correct such condition. This Agreement may be terminated by either party by
written notice upon the occurrence of such event of force majeure which results in a delay of
performance hereunder exceeding thirty (30) days.
13. Applicable Law. Any dispute regarding or arising under this Agreement, or the interpretation of
this Agreement, will be subject to and resolved in accordance with the laws of the State of Arizona,
without regard to its conflicts of laws principles.
14. Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from
or relating to this Agreement or the breach thereof, the parties hereto will use their reasonable efforts
to settle the dispute, claim, question, or disagreement. To this effect, they will consult and negotiate
with each other in good faith and, recognizing their mutual interests, attempt to reach a just and
equitable solution satisfactory to both parties. In the event of litigation, as required by Arizona Revised
Statutes (“A.R.S.”) §12-1518, the parties agree to make use of arbitration in all contracts that are subject
to mandatory arbitration pursuant to rules adopted under A.R.S. §12-133.
15. Assignment. Neither party will assign or transfer any interest in this Agreement without the
prior written approval of the other party. Any attempted assignment in violation of this provision will be
null and void. Subject to the foregoing, this Agreement will be binding upon the permitted successors
and permitted assigns or other permitted transferees of the parties.
16. Recitals and Exhibits. All recitals herein, and all exhibits attached hereto (including each Scope
of Work hereunder) and referred to herein, are integral and material parts of this Agreement.
17. Severability. If any provision of this Agreement shall for any reason be found invalid, illegal,
unenforceable, or in conflict with any valid controlling law: (a) such provision will be separated from this
Agreement; (b) such invalidity, illegality, unenforceability, or conflict will not affect any other provision
hereof; and (c) this Agreement will be interpreted and construed as if such provision, to the extent the
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same shall have been held invalid, illegal, unenforceable, or in conflict, had never been contained
herein.
18. Waiver. The waiver of a breach hereunder may be effected only by a writing signed by the
waiving party and will not constitute, or be held to be, a waiver of any other or subsequent breach or to
affect in any way the effectiveness or enforceability of the provision in question.
19. Modification. Any modification or amendment of this Agreement or any Scope of Work
hereunder will be effective only if made in writing and signed by both parties.
20. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or will
be construed to confer upon any person or entity, other than the parties and their respective successors
and assigns permitted by this Agreement, any right, remedy or claim under or by reason of this
Agreement.
21. Merger and Integration. This Agreement contains the entire understanding between the parties
concerning the subject matter of this Agreement and supersedes any and all prior understandings,
agreements, representations, and warranties, express or implied, written or oral, between the parties
concerning the subject matter of this Agreement.
22. Nondiscrimination. The parties will comply with all applicable state and federal laws, rules,
regulations, and executive orders governing equal employment opportunity, immigration, and
nondiscrimination, including the Americans with Disabilities Act. If applicable, the parties will abide by
the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit
discrimination against qualified individuals based on their status as protected veterans or individuals
with disabilities, and prohibit discrimination against all individuals based on their race, color, religion,
sex, or national origin. Moreover, these regulations require that covered prime contractors and
subcontractors take affirmative action to employ and advance in employment individuals without
regard to race, color, religion, sex, national origin, protected veteran status or disability.
23. Conflict of Interest. Each party’s participation in this Agreement is subject to A.R.S. § 38-511
which provides that this Agreement may be cancelled if any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of ASU or Client is, at any time while
this Agreement or any extension thereof is in effect, an employee or agent of the other party to this
Agreement in any capacity or a consultant to any other party with respect to the subject matter of this
Agreement.
24. Failure of Legislature to Appropriate. In accordance with A.R.S. § 35-154, if either party’s
performance under this Agreement depends upon the appropriation of funds by the Arizona Legislature,
and if the Legislature fails to appropriate the funds necessary for performance, then the affected party
may provide written notice of this to the other party and cancel this Agreement without further
obligation except as provided in Section 3.2 hereof.
The parties agree that Sections 25, 26, 27 and 28 will apply in the event Client and its employees are
present on the ASU campus or use ASU equipment.
25. Liability. Client will conduct its activities in a careful and safe manner. As a material part of the
consideration to ASU, Client agrees to assume all risk of damage to and loss or theft of Client’s property
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while at ASU, damage to ASU space, and injury or death to persons related to Client’s use of property,
use or occupancy of the space in, upon, or about the space from any cause, and Client waives all claims
against ASU. Client further agrees to indemnify and hold harmless Arizona State University, the Arizona
Board of Regents, the State of Arizona and their officers, regents, agents and employees, against all
claims, suits, liabilities, costs, damages and expenses (including reasonable attorneys’ fees) arising out of
or in connection with: (i) Client’s use of property, use or occupancy of the space, or any activity or thing
done, performed or suffered by Client, its agents, its employees, licensees, invitees or persons attending
or participating in Client’s activities and use of property and in or about the space; or (ii) any loss, injury,
death or damage to persons, property, or the space on or about the space by reason of any act,
omission or negligence of Client, or any of its agents, contractors, employees, licensees, or invitees; or
(iii) any breach or default in the performance of any obligation on Client’s part to be performed under
the terms of this Agreement. Client’s indemnity obligations will not extend to any liability to the extent
caused by the negligence of ASU or its agents or employees. Client's obligations and liabilities under this
Section shall survive the expiration or early termination of this Agreement.
26. Insurance. Client, at its expense, agrees to procure and maintain during the term of this
Agreement a policy of commercial general liability insurance in an amount of not less than One Million
Dollars ($1,000,000), single limit, Two Million Dollars ($2,000,000), general aggregate, against claims for
bodily injury, death and property damage occurring in connection with Client’s use of property and
space at ASU. All insurance required pursuant to this section must name the Arizona Board of Regents,
Arizona State University, and the State of Arizona as additional insureds and must contain a waiver of
subrogation against the Arizona Board of Regents, Arizona State University, and the State of Arizona.
Client agrees to procure and maintain Workers’ Compensation insurance with statutory limits unless
exempt under A.R.S. § 23-901 and executes the appropriate waiver (Sole Proprietor/Independent
Contractor) form.
27. Tobacco-Free University. ASU is a tobacco-free university. For details, visit
www.asu.edu/tobaccofree.
28. Weapons, Explosive Devices and Fireworks. ASU prohibits the use, possession, display or
storage of any weapon, explosive device or fireworks on all land and buildings owned, leased, or under
the control of ASU or its affiliated or related entities, in all ASU residential facilities (whether managed
by ASU or another entity), in all ASU vehicles, and at all ASU or ASU affiliate sponsored events and
activities, except as provided in A.R.S. § 12-781 or unless written permission is given by the Chief of the
ASU Police Department or a designated representative. Notification by Client to all persons or entities
who are employees, officers, subcontractors, consultants, agents, guests, invitees or licensees of Client
(“Client Parties”) of this policy is a condition and requirement of this Agreement. Client further agrees to
enforce this contractual requirement against all Client Parties. ASU’s policy may be accessed through the
following web page: http://www.asu.edu/aad/manuals/pdp/pdp201-05.html.
29. Records. To the extent required by A.R.S. § 35-214, the parties agree to retain all records
relating to this Agreement and to make those records available at all reasonable times for inspection
and audit by one another or the Auditor General of the State of Arizona during the term of this
Agreement and for a period of five (5) years after the completion of this Agreement. The records shall
be provided at Arizona State University, Tempe, Arizona, or another location mutually agreed by the
parties.
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30. Authorized Presence Requirements. As required by A.R.S. §41-4401, the parties are prohibited
from awarding a contract to any contractor who fails, or whose subcontractors/subrecipients fail, to
comply with A.R.S. § 23-214-A. Each party warrants that it complies with applicable federal immigration
laws and regulations that relate to its employees.
A breach of the foregoing warranty shall be deemed a material breach of this Agreement. In addition to
the legal rights and remedies available to each party hereunder and under the common law, in the
event of such a breach, the non-breaching party shall have the right to terminate this Agreement. Upon
reasonable request, each party shall have the right to inspect the papers of each contractor,
subcontractor or any employee of either who performs work hereunder for the purpose of ensuring that
the contractor or subcontractor is in compliance with the warranty set forth in this provision.
31. Confidential Information.
31.1 Client and ASU may choose, from time to time, in connection with the Services
contemplated under this Agreement, to disclose confidential information to each other (“Confidential
Information”). All such disclosures must be in writing and marked as Confidential Information. Each
party will use reasonable efforts to prevent the disclosure to unauthorized third parties of any
Confidential Information of the other party and will use such information only for the purposes of this
Agreement. All obligations under this Section will expire three (3) years after the Effective Date.
31.2 Notwithstanding any other provision of this Agreement to the contrary, the parties
acknowledge that each party is subject to A.R.S. §§ 39-121 through 39-127. Any provision regarding
confidentiality is limited to the extent necessary to comply with the provisions of Arizona law.
32. Counterparts. This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which taken together will constitute one and the same instrument, and
photocopy, facsimile, electronic and other copies will have the same effect for all purposes as an ink-
signed original.
[SIGNATURES ON NEXT PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives on the respective dates entered below.
MARICOPA COUNTY THE ARIZONA BOARD OF REGENTS
A political subdivision of the State of Arizona FOR AND ON BEHALF OF
ARIZONA STATE UNIVERSITY
By: By:
Name: Clint Hickman Name: Rob Melnick
Title: Chairman of the Board of Supervisors Title: Executive Director and COO
Date: Date:
ARIZONA STATE UNIVERSITY
Walton Sustainability Solutions Initiatives:
Global Sustainability Solutions Services
By:
Name: Gerald D. O’Neill Jr.
Title: General Manager
Date:
IGA DETERMINATION – ASU
This Agreement, which is an agreement between public agencies, has been reviewed pursuant
to A.R.S. §11-952 by the undersigned, who has determined that it is in the proper form and is within the
power and authority granted under the laws of the State of Arizona to those parties to the Agreement
represented by legal counsel for the Arizona Board of Regents.
APPROVED AS TO FORM:
Associate General Counsel, Arizona State University
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IGA DETERMINATION – MARICOPA COUNTY
This Agreement, which is an agreement between public agencies, has been reviewed pursuant
to A.R.S. §11-952 by the undersigned, who has determined that it is in the proper form and is within the
power and authority granted under the laws of the State of Arizona to those parties to the Agreement
represented by the Maricopa County’s Attorney.
APPROVED AS TO FORM:
Deputy County Attorney, Maricopa County
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EXHIBIT A
TO MASTER INTERGOVERNMENTAL AGREEMENT
Form of Scope of Work
This Scope of Work, dated ______________, 201_, is issued pursuant to, made part of, and governed by
the Master Intergovernmental Agreement, dated July 1, 2016 (“Master Agreement”), by and between
Maricopa County, a political subdivision of the State of Arizona, for and on behalf of the Air Quality
Department, having its principal place of business at 1001 North Central Avenue, Suite 125, Phoenix, AZ
85004 (“Client”), and The Arizona Board of Regents for and on behalf of Arizona State University and its
Walton Sustainability Solutions Initiatives: Global Sustainability Solutions Services having its place of
business at 21 E. 6th Street, Suite 126C, Tempe, AZ 85281 (“ASU”).
Contact Details
Walton Sustainability Solutions Initiatives: Maricopa County Air Quality Department:
Attention: Dan O’Neill Attention: Philip McNeely
Arizona State University 1001 North Central Avenue
P.O. Box 878009 Suite 125
Tempe, Arizona 85287-8009 Phoenix, AZ 85004
Fax: (480) 965-5533 Fax: (602) 372-0587
Phone: (480) 727-2704 Phone: (602) 506-6443
Scope of Work
Description of Services:
Deliverable(s), if any:
Schedule:
Rate Schedule
ASU Payment Address (if different than above address)
Arizona State University
Attention: Heather Irish
Walton Sustainability Solutions Initiatives:
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Global Sustainability Solutions Services
P.O. Box 878009
Tempe, Arizona 85287-8009
IN WITNESS WHEREOF, the parties have executed this Scope of Work as of the date first set forth above.
MARICOPA COUNTY THE ARIZONA BOARD OF REGENTS
A political subdivision of the State of Arizona FOR AND ON BEHALF OF
ARIZONA STATE UNIVERSITY
By: By: (change to Provost if over 20K)
Name: Philip A. McNeely Name: Rob Melnick
Title: Director, Air Quality Department Title: Executive Director and COO
Date: Date:
ARIZONA STATE UNIVERSITY ARIZONA STATE UNIVERSITY
Walton Sustainability Solutions Initiatives: Julie Ann Wrigley Global Institute of
Global Sustainability Solutions Services Sustainability
By: By: (use only if over 20K)
Name: Gerald D. O’Neill Jr. Name: Rob Melnick
Title: General Manager Title: Executive Director and COO
Date: Date:
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