2014-04-24 MASTER IGA COMMUNICATION SITES - FLOOD CONTROL.DOCX
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INTERGOVERNMENTAL AGREEMENT BETWEEN THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY AND MARICOPA COUNTY G-30165 94-14-xxx-3-00 C-69-14-xxx-3-00 This Intergovernmental Agreement (“IGA” or “Agreement”) is entered into this _______day of _______________________, 2014, by and between the Flood Control District of Maricopa County, a political subdivision of the State of Arizona, hereinafter referred to as “DISTRICT”, and Maricopa County, a political subdivision of the state of Arizona, hereinafter referred to as "COUNTY", together, the “Parties” or individually a “Party”. RECITALS WHEREAS, the purpose of this Agreement is to fulfill the need for the establishment of modern and reliable communication systems and related equipment (“Communication Systems”) for DISTRICT and COUNTY and to locate the Communication Systems on the real property owned or controlled respectively by DISTRICT and COUNTY. The use of DISTRICT real property (“District Sites”) for the purpose of providing COUNTY with much needed wireless communication coverage and the use of COUNTY real property (“County Sites”) (“District Sites” and “County Sites” shall collectively be referred to herein as the “Site” or “Sites”); WHEREAS, providing DISTRICT much needed wireless communication coverage not presently available will enhance the communications systems of the Parties; and WHEREAS, this Agreement is to include all Sites where space and technical parameters allow non-interfering operation between existing services and any new services proposed by DISTRICT or COUNTY; and WHEREAS, DISTRICT and COUNTY shall enter into site-specific supplemental agreements (“SSSA” or “SSSAs”) for the installation and maintenance of Communication Systems on the Sites; and WHEREAS, all wireless communications system components shall be provided by the benefiting agency unless outlined in Site-Specific Supplemental Agreements; and WHEREAS, any site improvements necessary to accommodate the required wireless communications systems as outlined in this Agreement and its supplements, and as further defined in its supplements, shall be made and costs borne by the Benefiting Agency, as hereafter defined; and WHEREAS, the cost of permitting, engineering and maintenance of the required wireless communications systems as outlined in this Agreement and its supplements, and as further defined in its supplements shall be borne by the Benefiting Agency, as hereafter defined; and WHEREAS, COUNTY is authorized to enter into this Agreement pursuant to A.R.S. § 11-952 et seq. and the District is authorized to enter into this Agreement pursuant to A.R.S. § 48-3603(9). TERMS OF AGREEMENT NOW THEREFORE, in consideration of the mutual promises and undertakings of the parties hereinafter set forth, it is hereby agreed as follows: 1. Recitals. The Recitals, by this reference, shall be incorporated herein and are made a part of this Agreement. The SSSAs and any amendments thereto are hereby incorporated into and made a part of this Agreement. If there is any conflict between the terms of this Agreement and the terms of any SSSA, the terms of the SSSA shall control. 2. Co-Location. The Parties hereby agree to make the Sites available for the co-location of the radio communications equipment of the other, to the fullest extent that this is technically and legally feasible, pursuant to the terms of this Agreement. 3. Term/Renewal. This Agreement shall become effective as of the date it is executed by the Chairman of the Maricopa County Board of Supervisors and the Chairman of the Board of Directors of the DISTRICT and shall remain in full force and effect for a term of one (1) year and is automatically renewed for nine (9) additional one (1) year periods unless canceled by either Party upon written notice at least six (6) months prior to the expiration of this Agreement. 4. Benefiting Agency. For each Site used by the other (“Benefiting Agency”), the Benefiting Agency shall: a) Not install or construct additional structures upon the Sites beyond that which is stated in the SSSA. b) Not use the Communication Systems or the Sites for any use not authorized herein or in the SSSA. This IGA shall be considered automatically revoked without further action by the agency that owns or controls the Site (“Host Agency”) if the unauthorized use is not corrected within thirty (30) days after written notice, pursuant to Section 14 below, is received by the Benefiting Agency. c) Obtain any and all permits and approvals for construction and/ or erection of the facility proposed by the Benefiting Agency. In no event shall the execution of this Agreement or any SSSA be construed as satisfaction of the requirements of this paragraph. d) Provide maintenance for its Communication Systems. A technician from one or both of the Parties shall be present when work is performed by an outside service provider inside the host's building or on the host's tower. e) Provide current copies of FCC licenses needed to operate radio communications equipment. f) Be responsible for notifying the hosting agency when entering or leaving the host agency's buildings. See ATTACHMENT 1 for contact phone numbers. g) Ensure the security of the Sites and will not allow unauthorized persons to have Page 2 of 12 access thereto. Benefiting Agency shall not allow any nonofficial use of the Sites by private or commercial organizations without the prior written consent of the Host Agency. h) Remove all trash and debris on the Sites and dispose of it in an appropriate manner. No equipment or materials shall be stored outside of any enclosure. i) Pay or cause to be paid taxes of whatever character which may be levied or charged upon the rights of the Benefiting Agency to use the Site and/or the Communication Systems pursuant to this IGA. j) Pay for any and all costs and expenses associated with the planning, construction, installation, operation and maintenance of the Benefitting Agency’s Communication Systems. If Pay for any and all costs and expenses associated with the planning, construction, installation, operation and maintenance of the Benefitting Agency’s Communication Systems. If any improvements currently existing on the Sites need to be removed and or relocated to construct and/or install the Benefitting Agency’s Communication System, the removal and relocation of the improvements and the costs associated therewith shall be borne solely by the Benefiting Agency. 5. Host Agency. The Host Agency agrees to provide: a) Access to and from the Sites for the construction, installation, operation and maintenance of the Communication Systems. b) Engineering services, if requested and available, to install radio communications equipment. b) Building and tower space, if requested and available, to install the Benefiting Agency’s Communication Systems. c) Rigger services, if requested and available, to install and maintain the antennas and antenna feed-lines. d) Commercial AC power and standby AC power where available at cost. No markup of utility charges will occur, and the total due will be the net amount per billing period from all sites under this agreement. Other power arrangements may be agreed upon within the Site-Specific Supplemental Agreements. e) Contact any users associations, and landlords (i.e., BLM, Forest Service, State Land) to obtain any necessary permission for this additional use and submit to the Benefiting Agency for reimbursement any additional costs to these entities caused by the Benefiting Agency’s installation of equipment. 6. Payment of Services. Should the Host Agency be asked to perform any tasks, the Benefiting Agency will reimburse the Host agency for all parts, material, equipment and supplies and for labor at the current labor rates in effect. 7. Ownership of Communication Systems. It is expressly understood and agreed that the Benefiting Agency retains title to all equipment installed by it and may modify, replace or remove such equipment when necessary, obtaining any and all approvals and permits Page 3 of 12 for any such work. The Parties acknowledge that all Communication Systems of the Benefiting Agency shall be deemed personal property of the Benefiting Agency. 8. Compliance with laws. The Parties agree to comply with all federal, state and local statutes, laws, ordinances, rules, regulations and instructions which relate to the construction, reconstruction, management, operation and maintenance of the Communication Systems. The Parties shall further comply with the following in their performance of this Agreement: a) Equal Employment Opportunity. The Parties shall not discriminate against any employee or applicant for employment because of race, age, handicap, disability, color, religion, sex or national origin. The Parties shall comply with Title VI and Title VII of the Federal Civil Rights Act; the Federal Rehabilitation Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act of 1990, A.R.S. § 41-1461 et seq., A.R.S. § 41-1492 et seq., 29 USCA § 721 (Section 504), and Arizona Executive Order 75-5 which mandates that all persons shall have equal access to employment opportunities and any changes thereto or to any new laws or requirements implemented during the term of this Agreement. b) Immigration Reform and Control Act of 1986 (IRCA). The Parties understand and acknowledge the applicability of the Immigration Reform and Control Act (IRCA). The Parties agree to comply with the IRCA in performance of this IGA and, upon request, permit inspection of personnel records to verify such compliance. c) Employer Sanctions Law. Both parties warrant that they are in compliance with A.R.S. § 41-4401 and further acknowledge: That each party and its subcontractors, if any, warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214, Subsection A; That a breach of a warranty under this Section 6(c) shall be deemed a material breach of the contract that is subject to penalties up to and including termination of the Agreement; That each party retains the legal right to inspect the papers of the other party or its subcontractor’s employee(s) who work under this Agreement to ensure that the party or subcontractor is complying with the warranty provided under Section 4.4.1 above and that each party agrees to make all papers and employment records of said employee(s) available during normal working hours in order to facilitate such an inspection; 9. Entry and Inspection. The Host Agency shall have the right at all times to enter onto and inspect the Sites and the Communication Systems on the Sites. Host Agency will notify Benefiting Agency of any unsatisfactory condition relative to the construction, management, operation and maintenance of the Sites and the Communication Systems on the Sites. Benefiting Agency shall take immediate action to correct such condition(s) at Benefiting Agency’s expense. Page 4 of 12 10. Environmental Compliance. If activities of the Benefiting Agency result in adverse environmental impacts on any Site, the Benefiting Agency will be fully accountable for any resulting Site assessment and cleanup cost required to restore the property. Host Agency will not seek compensation or restitution from Benefiting Agency as a “Potentially Responsible Party” for any release of a contaminant/hazardous substance on the premises prior to the effective date of this IGA. a) Subject to the provisions set forth herein, Host Agency agrees the Benefiting Agency may use, generate and store any hazardous material at or on the Sites as long as it is solely for the construction and/or installation, operation and maintenance of the Communication Systems. b) Benefiting Agency shall provide to Host Agency, in writing, a complete list identifying all hazardous material or petroleum products and approximate quantities to be brought on site and when such products will be removed. c) Additionally, Benefiting Agency shall prepare and implement any necessary remediation action plan in accordance with all applicable federal, state, and city statutes, laws, ordinances, rules and regulations. Benefiting Agency shall keep Material Safety Data Sheets documents on site for those materials and products. d) Benefiting Agency shall report to Host Agency within twenty-four (24) hours of knowledge of any event or occurrence at the Sites which may or does result in pollution or contamination adversely affecting lands, water or facilities owned or managed by the Host Agency, including the facilities which are subject of this IGA. e) Benefiting Agency shall protect, defend, indemnify and hold harmless Host Agency from and against all liabilities, costs, charges and expenses, including civil or criminal penalties, attorney’s fees and court costs arising out of or related to any activity involving or use of a regulated substance under any applicable federal, state, or local environmental laws, regulations, ordinances or amendments thereto because of: (a) any such substance that came to be located on any Site and/or the Communication Systems due to Benefiting Agency’s use or occupancy of the Sites pursuant to the terms of this IGA, any SSSA or any amendment(s) to this IGA or any SSSA; or (b) any release, threatened release or escape of any substance in, on, under or from said Site that is caused, in whole or in part, by any conduct, action or negligence of the Benefiting Agency. For the purposes of this IGA, the term “regulated substances” shall include substances defined as “regulated substances,” “hazardous waste,” “hazardous substances,” “hazardous materials,” “toxic substances” or “pesticides” in the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive Environmental Response, Compensation and Liability Act, as amended in 1986 to include Superfund Amendments and Reauthorization Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the relevant local and state environmental laws, and the regulations, rules and ordinances adopted and publications promulgated pursuant to the local, state, and federal laws. This indemnification shall include, without limitation, claims or damages arising out of any violations of applicable Page 5 of 12 environmental laws, regulations, ordinances, rules or subdivisions thereof. This environmental indemnity shall survive the expiration or termination of this IGA or any amendment thereto and/or any transfer of all or any portion of the Sites and shall be governed by the laws of the State of Arizona, if applicable. Benefiting Agency accepts sole responsibility and liability for all wastes produced by its operation, activities and occupation of the premises and shall comply with all applicable laws concerning such wastes, including federal, state, and local regulatory requirements. Any such waste must be disposed of in compliance with the above. f) Benefiting Agency agrees it shall be solely responsible for and assumes all responsibility for the actions of Benefiting Agency, its agents, employees and contractors in generating, storing, releasing, placing or allowing to remain on the property any hazardous substances, hazardous wastes, or toxic substances (hereinafter collectively referred to as “Hazardous Substances”), as those terms as defined and regulated under CERCLA, 42 U.S.C. 9601 et seq., RCRA, 42 U.S.C. 6901 et seq., or TSCA, 15 U.S.C. 2601 et seq. Benefiting Agency further agrees to comply with all environmental laws and regulations and to take such other actions as may be reasonably required to protect against environmental liabilities. Any such “hazardous substances” must be disposed of pursuant to and in compliance with all required laws and regulations concerning the use and disposal of such substances. g) Management and proper disposal of all hazardous material is the responsibility of Benefiting Agency. Benefiting Agency must keep appropriate and required documentation relating to the management and disposal of all hazardous material. h) Host Agency agrees to defend, indemnify, and hold harmless Benefiting Agency and its officials, electeds, agents and employees against all loss, liability, or expense relating to personal, property, or economic injury arising from the presence of Hazardous Substances located on any Site (other than any such Hazardous Substances generated, stored, released, placed or allowed to remain on the Property by the Benefiting Agency, its officials, electeds, agents, employees and contractors in violation of the law). 11. Insurance. The Parties acknowledge and agree they are each self-insured. 12. Default; Remedies. a) DISTRICT Default. Each of the following shall constitute a material breach of this IGA and an event of default by DISTRICT (“District Event of Default”) hereunder: DISTRICT’s failure to observe or perform any of the material covenants, conditions or provisions of this IGA to be observed or performed by DISTRICT, where such failure shall continue for a period of thirty (30) days after DISTRICT receives written notice of such failure from COUNTY provided, however, that such failure shall not be a District Event of Default if DISTRICT has commenced the cure within such thirty (30) day period and thereafter is diligently pursuing such cure to completion, but the total aggregate cure period shall not exceed ninety (90) days unless DISTRICT and COUNTY agree in writing that additional time is reasonably necessary under the circumstances to cure such default. Page 6 of 12 b) COUNTY Remedies. In the event of a District Event of Default, COUNTY may, at its option, terminate this IGA. Further, upon the occurrence of any District Event of Default and at any time thereafter, COUNTY may, but shall not be required to, exercise any remedies now or hereafter available to COUNTY at law or in equity. c) COUNTY Default. Each of the following shall constitute a material breach of this IGA and an event of default by COUNTY (“County Event of Default”) hereunder: COUNTY’s failure to observe or perform any of the material covenants, conditions or provisions of this IGA to be observed or performed by COUNTY, where such failure shall continue for a period of thirty (30) days after COUNTY receives written notice thereof from DISTRICT provided, however that such failure shall not be a County Event of Default if COUNTY has commenced the cure within such thirty (30) day period and thereafter is diligently pursuing such cure to completion, but the total aggregate cure period shall not exceed ninety (90) days unless COUNTY and DISTRICT agree in writing that additional time is reasonably necessary under the circumstances to cure such default. d) DISTRICT Remedies. In the event of a County Event of Default, DISTRICT may, at its option, terminate this IGA. Further, upon the occurrence of any County Event of Default and at any time thereafter, DISTRICT may, but shall not be required to, exercise any remedies now or hereafter available to DISTRICT at law or in equity. 13. DISTIRCT and COUNTY will compute a bill or voucher on a monthly basis for all services referenced in Paragraph Six (6) of this Agreement. The final total will be the net amount due after all site-specific costs are computed and submitted to the agency that has a balance due. The billing will be for a period of service for which it is submitted (e.g., "previous month") and will include a description of the locations where services were performed. All bills or vouchers submitted pursuant to this Agreement shall be dated and reflect the Agreement number. All final bills or vouchers will be submitted to the agency that has a balance due. All records regarding a bill or voucher, including employee time sheets and accounting logs must be retained in compliance with Arizona State Law Records Retention Schedule. That agency with the balance will prepare the necessary forms to forward payment. 14. Notice Addresses. All notices herein required to be given to County in writing and all payments herein required shall be sent to: COUNTY Maricopa County Manager, Maricopa County Wireless Systems 3324 W. Gibson Lane Phoenix, Arizona 85009 DISTRICT Flood Control District of Maricopa County 2801 W. Durango Street Phoenix, AZ 85009 ATTN: Chief Engineer and General Manager Page 7 of 12 a) Notice Requirements. All notices required or permitted by this IGA or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by commercial overnight delivery service, and shall be deemed sufficiently given if served in a manner specified in this Section. The addresses specified in Section 14 shall be that Party’s address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice. b) Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantee next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. 15. Indemnification. To the extent permitted by law, each Party, as indemnitor, agrees to indemnify, defend, and hold harmless the other Party, as indemnitee, from and against any and all claims, losses, liability, costs, or expenses (including reasonable attorney’s fees) (hereinafter collectively referred to as “claims”) arising out of bodily injury of any person (including death) or property damage, but only to the extent that such claims are caused by the act, omission, negligence, misconduct, or other fault of the Party and its officers, officials, agents, employees, or volunteers. 16. Conflicts. This Agreement shall be subject to the provisions of A.R.S. § 38-511. 17. Return of Premises. At the termination or expiration of this IGA, Benefiting Agency shall return the Sites to Host Agency in good condition within sixty (60) days. Benefiting Agency may abandon the improvements made thereon or shall remove said improvements and restore the Sites to their original condition if so directed by Host Agency. 18. No Assignment. Neither party to this Agreement shall assign any of the rights received pursuant to the terms of this IGA without the prior written consent of the other Party. 19. Time is of the Essence. Time is of the essence of this IGA. If the date for performance of any obligation hereunder or the last day of any time period provided herein shall fall on a Saturday, Sunday or legal holiday of the State of Arizona, then said date for performance or time period shall expire on the first day thereafter which is not a Saturday, Sunday or a legal holiday. Unless otherwise specifically indicated to the contrary, the word “days” as used in this IGA shall mean and refer to calendar days and not business days. 20. No Partnership or Joint Venture. Nothing contained in this IGA shall create any partnership, joint venture or other arrangement between COUNTY and DISTRICT. Except and expressly provided herein, no term or provision of this IGA is intended or shall be for the benefit of any person or entity not a party hereto, and no such other person or entity shall have any right or cause of action hereunder. 21. Venue; Governing Law. The proper venue for any proceeding at law or in equity shall be Page 8 of 12 Maricopa County, Arizona and COUNTY and DISTRICT hereby waive any right to object to venue. This IGA shall be construed in accordance with and be governed by the laws of the State of Arizona. 22. Entire Agreement. This IGA, together with any exhibits attached hereto, any agreements executed contemporaneously herewith or any SSSA’s entered into by the Parties, constitutes the entire agreement between the Parties and sets forth all of the covenants, promises, agreements, conditions and understandings between COUNTY and DISTRICT, and there are no covenants promises, agreements, conditions or understandings, either oral or written, between COUNTY and DISTRICT other than as set forth herein. This IGA shall be construed as a whole and in accordance with its fair meaning and without regard to any presumption or other rule requiring construction against the party drafting this IGA. This IGA cannot be modified or changed except by a written instrument executed by COUNTY and DISTRICT. COUNTY and DISTRICT have reviewed this IGA and have had the opportunity to have it reviewed by legal counsel. This Agreement does not imply authority to perform any tasks, or accept any responsibility, not expressly stated in this Agreement. This Agreement does not create a duty or responsibility unless the intention to do so is clearly and unambiguously stated in this Agreement. 23. Waiver. Waiver by either Party of any breach of any term, conditions or covenant herein contained shall not be deemed to be a waiver of any other term, condition or covenant herein, or of a subsequent breach of any term, covenant or condition herein. Either Party’s consent to, or approval of, any subsequent or similar act shall not be deemed to render unnecessary the obtaining of either Party’s consent to, or approval of, any subsequent or similar act by the other, to be construed as the basis of an estoppel to enforce the provision or provisions of this IGA requiring such consent. 24. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be valid under applicable law, but if any provision shall be invalid or prohibited thereunder, such provision shall be ineffective to the extent of such prohibition or invalidation but shall not invalidate the remainder of such provision or the remaining provisions of this Agreement. 25. Authority to Execute. Any individual executing this IGA on behalf of or as representative for a governmental entity, corporation or other person, firm, partnership or entity represents and warrants that he/she is duly authorized to execute and deliver this IGA on behalf of said governmental entity, corporation, person, firm, partnership or other entity, that all approvals have been obtained and that this IGA is binding on said entity in accordance with its terms. 26. Headings. Sections and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Lease. 27. Cooperation. COUNTY and DISTRICT agree to execute and/or deliver to each other such other instruments and documents as may be reasonably necessary to fulfill the covenants and obligations to be performed by COUNTY and/or DISTRICT pursuant to this IGA. 28. This Agreement is subject to the notice requirements of A.R.S. § 11-256.01. Page 9 of 12 29. Agreement as License. The Parties intend and mutually agree that this Agreement shall be construed as a mere license by Host Agency to Benefiting Agency to operate within the Sites. This Agreement shall not be construed as a lease, sublease, rental agreement or easement. It is understood and mutually agreed that Benefiting Agency has no interest whatsoever in the Sites. 30. Waiver of Conflict. The Parties to this Agreement have chosen attorneys employed by the Civil Services Division of the Maricopa County Attorney’s Office (Civil Services Division) to act as their attorney for the purpose of reviewing this Agreement. In so doing, by their signature below, each party acknowledges that it is aware that the Civil Services Division will represent both parties to this Agreement, and each party expressly waives any conflict created thereby. SIGNATURE PAGES AND ATTACHMENT FOLLOW. Page 10 of 12 G-30165 C-94-14-xxx-3-00 C-69-14-xxx-3-00 IN WITNESS WHEREOF, the parties hereto agree to carry out the terms of this Agreement and have executed this Agreement the day and year first written above. MARICOPA COUNTY, a political subdivision FLOOD CONTROL DISTIRCT OF of the State of Arizona MARICOPA COUNTY, a political subdivision of the State of Arizona By: ________________________________ By: ________________________________ Denny Barney Denny Barney Title: Chairman of the Board of Supervisors Its: Chairman of the Board of Directors Attest: Attest: ___________________________________ ___________________________________ Clerk of the Board Date Clerk of the Board Date I hereby state that I have reviewed the proposed Intergovernmental Agreement, between Maricopa County and the Flood Control District of Maricopa County, pursuant to A.R.S. § 11- 952, and declare the Agreement to be in proper form and within the powers and authority granted to the Flood Control District of Maricopa County under the laws of the State of Arizona. ___________________________ ____________ Deputy County Attorney Date I hereby state that I have reviewed the proposed Intergovernmental Agreement, between the Maricopa County and the Flood Control District of Maricopa County, pursuant to A.R.S. §48- 3603(9), and declare the Agreement to be in proper form and within the powers and authority granted to Maricopa County under the laws of the State of Arizona. ___________________________ ____________ General Counsel Date Page 11 of 12 ATTACHMENT "1" DISTRICT contact information: Telephone Number Chief Engineer and General Manager’s (602) 506-4701 Office Operations and Maintenance Manager (602) 506-4602 Public Works Real Estate Manager (602) 506-4706 Flood Control District Front Desk (602) 506-1501 COUNTY contact information: Wireless Systems Manager (602) 506-5264 Wireless Systems Technical Manager (602) 506-1193 Wireless Systems Main (during work hours) (602) 506-1191 Wireless Systems Fax (602) 506-4753 MARICOPA County Protective Services (602) 506-8335 (after hours) Wireless Systems Standby Tech pager 602) 204-9558 Page 12 of 12