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Page 1 10 2019-113-COS INTERGOVERNMENTAL AGREEMENT FOR THE CONTINGENT USE OF EMERGENCY OPERATIONS CENTERS This Intergovernmental Agreement (“Agreement”) is entered into pursuant to A.R.S. §§11-951 et seq., A.R.S. § 26-308(B), and A.R.S. § 26-306, between the Arizona Department of Emergency and Military Affairs (AZDEMA) and the City of Glendale (City). The aforementioned agencies shall herein after be known collectively as the “Parties” and individually as “Party.” RECITALS 1. The Parties maintain and operate Emergency Operations Centers (“EOCs”) in order to carry out and/or support various emergency and public safety functions during a disaster or other major incident. 2. The Parties wish to ensure that their emergency and public safety roles may continue during a disaster or other major incident if the EOC of one Party or the other becomes unavailable or compromised by making available the EOC of the other Party to serve in a backup/contingent capacity. 3. Arizona Revised Statutes (“A.R.S.”) § 11-952 allow public agencies such as the Parties to jointly exercise any powers common to the Parties and may enter into intergovernmental agreements such as this one. 4. For these reasons, the Parties believe that it is in their mutual best interests and that of the citizens of the State of Arizona and the City of Glendale to make available their EOCs available on a backup/contingent basis. NOW, THEREFORE, for and in consideration of the foregoing, the covenants and promises contained below and for other good and valuable consideration, the Parties agree as follows: TERMS 1. Recitals. The foregoing recitals are incorporated into this Agreement and made a part of it by this reference. 2. Purpose. The Parties desire to enter into this Agreement for the purpose of ensuring that their emergency and public safety roles may continue during a disaster or other major incident if the EOC of one Party or the other becomes unavailable or compromised by making available the EOC of the other Party to serve in a backup/contingent capacity. 3. Responsibilities. The responsibilities of each of the Parties to the Agreement are set forth below. Page 2 10 2019-113-COS 3.1 Each Party shall coordinate in advance the use of the other Party’s EOC for exercises, training or other non-emergency use with the other Party’s Contract Administrator. 3.2 Each Party shall develop and share plans and procedures with the other Party related to relocating emergency operations to the EOC of the other Party. 3.3 Each Party shall maintain their respective EOCs in optimal working condition at its own expense (unless otherwise agreed upon in writing by the Parties). 3.4 Each Party shall permit access to its EOC immediately or as soon as is reasonably practicable upon notification from the other Party of an emergency need. 3.5 Each Party shall provide access to its EOC, with reasonable advanced notice and coordination, for the purposes of training, exercises and/or testing of processes, procedures and equipment to ensure a high state of readiness. 3.6 Each Party shall provide a liaison to support the other Party’s operations in the backup/contingent EOC during an emergency, exercise or training activities. 3.7 Notwithstanding the above, each Party reserves the right to decline to make its respective EOC available for use, training or exercises based on the operational needs and requirements of the respective Party. 4. Reimbursement. In the event that the Parties agree that one Party shall reimburse the other Party for agreed-upon expenses as contemplated in Section 3.3 above:. 4.1 The Party whose EOC is subject to the utilizing Party’s use shall prepare an itemized voucher of allowable cost to the utilizing Party for reimbursement every 30 days and closing billing within 30 days of termination of assistance. 4.2 All invoices, billings, financial records and notices concerning any payment to be made by one Party to the other shall be delivered in person, email, or sent by certified mail return receipt requested, or first class mail, postage prepaid as follows: To AZDEMA: Darleen Quihuis, Assistant Director AZ Department of Emergency & Military Affairs5636 East McDowell Road, Bldg. M5101 Phoenix, Arizona 85008-3495 Telephone: (602) 464-6454 Email: Darlene.quihuis@azdema.gov Page 3 10 2019-113-COS To the City: Interim Fire Chief Ken Barnes 11550 W. Glendale Ave Glendale, Arizona 85307 Telephone (623) 930-4400 Email: KBarnes@glendaleaz.com 5. Duration and Cancellation of Agreement. 5.1 Duration. This Agreement shall become effective upon the date executed below by the Parties hereto and shall remain in effect until July 1, 2030, unless otherwise terminated by the terms of this Agreement or operation of law. 5.2 Cancellation without Cause. Any Party may withdraw from this Agreement with or without cause by giving sixty (60) calendar days written notice to the other Parties to the Agreement. 6. Indemnification. Each Party (as "Indemnitor") agrees to defend, indemnify, 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 which result in vicarious/derivative liability to the Indemnitee are caused by the act, omission, negligence, misconduct, or other fault of the Indemnitor, its officers, officials, agents, employees, or volunteers. The State of Arizona, (AZDEMA) is self-insured per A.R.S. 41-621. In addition, should the City utilize a contractor(s) and subcontractor(s) the indemnification clause between the City and its contractor(s) and subcontractor(s) shall include the following: To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the City of Glendale and the State of Arizona, and any jurisdiction or agency issuing any permits for any work arising out of this Agreement, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees (hereinafter referred to as “Indemnitee”) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys’ fees, and costs of claim processing, investigation and litigation) (hereinafter referred to as “Claims”) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of the contractor or any of the directors, officers, agents, or employees or subcontractors of such contractor. This indemnity includes any claim or amount arising out of or recovered under the Workers’ Compensation Law or arising out of the failure of such contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the Parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent Page 4 10 2019-113-COS or willful acts or omissions of the Indemnitee, be indemnified by such contractor from and against any and all claims. It is agreed that such contractor will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. Additionally on all applicable insurance policies, contractor and its subcontractors shall name the City of Glendale and the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees as an additional insured and also include a waiver of subrogation in favor of the State and City. 7. Contract Administrators. The Contract administrator for the City of Glendale is Emergency Manager Nicole Munson, or her successor or designee. The Contract administrator for the Arizona Department of Emergency and Military Affairs (AZDEMA) is Gene Wikle, or his successor or designee. The Contract Administrators will be responsible for the administration of the Agreement for the respective Parties, and they will communicate and coordinate, as necessary. 8. Workers’ Compensation. Pursuant to A.R.S. §23-1022(D), for the purposes of workers’ compensation coverage, all employees of each Party covered by this Agreement shall be deemed to be an employee of all Parties. The agency which regularly employs an employee entitled to workers’ compensation arising out of work associated with this Agreement shall be the agency solely liable for payment of all workers’ compensation and related benefits. 9. Additional Provisions. 9.1 Nondiscrimination. The Parties shall comply with all applicable provisions of state and federal non-discrimination laws and regulations. No Party shall engage in any form of illegal discrimination, including but not limited to discrimination based on race, religion, gender, sexual orientation, gender identity, age, national origin, or political affiliation. 9.2 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Neither a signature for every Party nor a signature line shall be required in each counterpart except on a counterpart being brought forward by a Party to its legislative body or equivalent for approval, that particular counterpart shall have to be signed and executed in accordance with that Party’s practice. The signature pages from one or more counterparts may be removed from such counterparts and such signature pages all attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 9.3 Entire Agreement. This Agreement contains the entire understanding of the Parties hereto as to its subject matter. There are no representations or other provisions other than those contained herein, and any amendment or modification of this Agreement shall be made only in writing and signed by the Parties. Page 5 10 2019-113-COS 9.3.1 Upon amendment of the Agreement, if any, references to “Agreement” shall mean the Agreement as amended by any subsequent amendment(s). 9.3.2 If, after the effective date of any subsequent amendment(s), the Parties find it necessary to refer to the Agreement in its original, unamended form, they shall refer to it as the “Original Agreement.” When the Parties mean to refer to any specific amendment to the Agreement as if it were unmodified by any subsequent amendments, the Parties shall refer to it by the number of the amendment as well as its effective date. 9.4 Governing Law. The laws of the State of Arizona, without regard to its conflicts of laws provisions, shall govern this Agreement, and the Parties agree to comply with all applicable federal, state, and local law in performing this Agreement. Venue for the resolution of any dispute between the Parties relating to this Agreement will be in Maricopa County. 9.5 Cancellation. In addition to the termination and cancellation provisions in Section 5.2, the Parties reserve all rights that each may have to cancel this Agreement for possible conflicts of interest under A.R.S. § 38-511. 9.6 Severability. If any provision of this Agreement is declared invalid, illegal or unenforceable, that provision shall be severed from the Agreement, and the remaining provisions shall otherwise remain in full force and effect. 9.7 Indemnifications Survive. The provisions of this Agreement wherein a Party has explicitly indemnified the other Party shall survive the expiration or earlier termination of this Agreement. 10. Compliance with E-Verify Program. 10.1 To the extent provisions of A.R.S. § 41-4401 are applicable, all Parties warrant to each Party that they will comply with all Federal Immigration laws and regulations that relate to their employees and that each now complies with the E-Verify Program under A.R.S. § 23-214(A). 10.2 A breach of this warranty will be considered a material breach of this Agreement and may subject the breaching Party to penalties up to and including termination of this Agreement. 10.3 The Parties retain the legal right to inspect the papers of any employee who works pursuant to this Agreement or any related subcontract to ensure compliance with the warranty given above. 10.4 Any Party may conduct a random verification of the employment records of Page 6 10 2019-113-COS any other Party to ensure compliance with this warranty. 10.5 A Party will not be considered in material breach of this Agreement if it establishes that it has complied with the employment verification provisions prescribed by 8 USCA § 1324(a) and (b) of the Federal Immigration and Nationality Act and the E-Verify requirements prescribed by A.R.S. § 23- 214(A). 10.6 The provisions of this section must be included in all contracts any Party enters into with any and all of its contractors or subcontractors who provide services under this Agreement. 11. Allocation of Funds. Every payment obligation of the Parties under this Agreement is conditioned upon the availability of funds appropriated or allocated for the payment of such obligation. If funds are not allocated and available for the continuance of the Agreement, this Agreement may be terminated by the Parties at the end of the period for which funds are available. No liability shall accrue to the Parties in the event this provision is exercised, and the Parties shall not be obligated or liable for any future payments or for any damages as a result of termination under this paragraph. 12. Arbitration. The Parties agree to resolve all disputes arising out of or relating to this Agreement through arbitration, after exhausting applicable administrative review, to the extent required by A.R.S. §12-1518 except as may be required by other applicable statutes. 13. Notices. Any notices required or permitted to be given hereunder by either Party to the other may be given by the personal delivery in writing by email or by registered or certified mail, postage prepaid, with return receipt requested. Notices shall be addressed to the Parties at the address appearing below, but each Party may change such Party’s address by written notice given in accordance with this paragraph. Notices delivered by email or personally will be deemed communicated as of the actual receipt; mailed notices will be deemed communicated as of three (3) days of mailing. Except for matters addressed in Section 4 of this Agreement, all notices shall be addressed as follows: To AZDEMA to the attention of: Gene Wikle Senior Assistant Director Division of Emergency Management Arizona Department of Emergency and Military Affairs 5636 E. McDowell Road, Phoenix, AZ 85008 Phone: 602-464-6224 Gene.wikle@azdema.gov To City of Glendale to the attention of: Name: Nicole Munson Page 7 10 2019-113-COS Position: Emergency Manager Address: 11550 W. Glendale Ave Glendale, Arizona 85307 Phone: 623-872-5023 Email: nmunson@glendaleaz.com 14. Rule of Construction. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in interpreting this Agreement. 15. Further Actions. Each Party hereby agrees to perform any further acts and to execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement. 16. Independent Status. The Parties are independent contractors, and nothing contained in this Agreement creates a relationship of partnership, joint venture, agency, or employment between the Parties or any of their employees, officers, agents, or contractors. 17. Execution. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute a single instrument. A signature on a counterpart may be made by facsimile or otherwise electronically transmitted, and such signature shall have the same force and effect as an original signature. Further, this Agreement may be retained in any electronic format, and all electronic copies thereof shall likewise be deemed to be an original and shall have the same force and effect as an original copy of this Agreement. 18. No Third Party Beneficiaries. This Agreement will inure exclusively to the benefit of and be binding upon the AZDEMA and the City of Glendale as the only parties to this Agreement, and to their respective successors, assigns, executors and legal representatives. Except as expressly provided in this Agreement, nothing in this Agreement confers on any person other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations, or liabilities. 19. Separate Responsibility. Except as expressly provided in this Agreement, each Party agrees that, to the extent authorized by law, it will be responsible for its own acts or omissions and the results thereof and will not be responsible for the acts or omissions of the other Party and the results thereof. In the event that either Party becomes aware of any claim made by or expected from a claimant against a Party, which claim relates to the subject matter of this Agreement, that Party will immediately notify the other Party, and the Parties will share all information regarding such matter and cooperate with each other in addressing the matter. 20. Waiver. Any failure by either Party to enforce the other Party's strict Page 8 10 2019-113-COS performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. It is expressly agreed that in the execution of this Agreement, no Party waives nor shall be deemed hereby to waive any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. 21. Assignment. Neither Party may directly or indirectly assign or transfer its rights and/or obligations under this Agreement by operation of law or otherwise without the prior written consent of the other Party. 22. Force Majeure. The Parties shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission In performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 23. Publicity. No Party shall use or mention in any publicity, advertising, promotional materials or news release the name or service mark(s) of the other Party without the prior written consent of that Party. [SIGNATURE PAGE TO FOLLOW] Page 7 of 8 2019-113-COS IN WITNESS WHEREOF, the Party named below has executed this Agreement on _____________________, __________. Arizona Department of Emergency and Military Affairs (AZDEMA): ______________________________ Kerry Muehlenbeck Major General, AZ ANG The Adjutant General Arizona Department of Emergency and Military Affairs CITY OF GLENDALE, an Arizona municipal corporation By: Jerry P. Weiers Mayor ATTEST: _________________________ Julie K. Bower City Clerk APPROVED AS TO FORM: _________________________ Michael D. Bailey, City Attorney