Two or more public agencies, by direct contract or agreement, may contract for services or jointly exercise any powers common to the contracting parties and may enter into agreements with one another for joint or cooperative action, so long as each agency has been authorized by their legislative or other governing body. (ARS § 11-952). The Arizona Board of Regents (ABOR) is authorized to enter into Intergovernmental Agreements ("IGA") by the Arizona legislature (ARS § 15-1625.B) and ASU has been authorized by the Board to enter into IGAs. ( ABOR 3-808).
These must be set forth in an IGA as follows:
- The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget;
- How a complete or partial termination of the agreement will be accomplished, including disposal of any property that might be purchased or created through the joint or cooperative undertaking; and
- Any other necessary and proper matters, i.e., the standard public agency contract provisions.
Note: Payment for services under an IGA shall not be made unless pursuant to a fully approved written contract. Any person who authorizes payment of any monies in violation of the statutory provision regarding IGAs is liable for the monies paid plus 20% of such amount and legal interest from the date of payment.
These are mandated by statute and ABOR policy:
- Prior to execution, ASU's Office of General Counsel (OGC) must review to determine (a) that agreement is in proper form and (b) that the purpose of the agreement is within the University's powers and authority granted to it under the laws of the State of Arizona and ABOR. (ARS § 11-952.D and ABOR 3-808)
- An attorney in OGC must review an IGA even where the other contracting party is a federal department or agency and no federal law requires that an attorney for the federal department or agency review the agreement. (ARS § 11-952.E)
- After approval as to form by OGC, the agreement is forwarded to the President or his designee to sign the agreement on behalf of ABOR for and on behalf of ASU.
- If the value of the IGA exceeds $1,000,000 for the term of the agreement or any renewal period, the agreement must be submitted to ABOR for approval.
- The fully executed IGA must be filed with the appropriate recording office:
Secretary of State:
if approved by the Attorney General’s Office
if more than one county is affected
Maricopa County Recorder's Office:
if only one county is affected
"Contract for Services" and "Joint Exercise of Powers"
As interpreted by Arizona Attorney General:
- The touchstone of an IGA is that it involves the joint exercise of a governmental power or proprietary function common to the contracting parties. (Op. No. I85-050; I83-057)
E.g., a water service subcontract between the United States, the Central Arizona Water Conservation District, and the subcontractor is not governed by the Intergovernmental Agreement statutes because the subcontract addresses the separate powers and responsibilities of each party under state and federal reclamation law. The entities are exercising separate but complementary powers. (I85-050)
- Even if all contracting parties are public agencies, an intergovernmental agreement can only be used when each of the agencies has the power to perform the services or action contemplated in the contract pursuant to which they agree to allocate responsibilities between them. (I84-135) Once the capacity for joint exercise of powers has been established, the public agencies may jointly exercise those powers or contract to have one party perform the powers that are in common. (I83-057)
E.g., City of Tempe has the governmental power to build and improve streets; so does ABOR. (ARS § 15-1634). City of Tempe and ABOR can enter into an IGA concerning the construction of improvements to a roadway on or adjacent to University property wherein the agencies allocate responsibilities, e.g., design, labor, supervision, equipment, payment, amongst themselves.
E.g., a lease for a land parcel to be used as a school site between the BLM and a school district is not subject to the intergovernmental agreement statutes. Even though both parties have the statutory power to lease, such a lease does not involve the exercise of joint or cooperative action nor is it a contract for services. (I83-117)
- Public policy supporting the use of IGAs recognizes that public agencies are excused from complying with competitive bidding requirements where two agencies are charged with performing the same duties and it is economically efficient to avoid duplication of services and allocate responsibilities between the parties. (I83-057) However, a contract under which one agency merely procures a needed service from another does not qualify as an IGA unless the parties are acting jointly to exercise powers common to the parties. Id.
E.g., any school district participating in the state purchasing program within the Division of Finance of ADOA must execute an IGA with DOA. (I79-079)
E.g., where agency receives, allocates, and disburses grants or funds made available by U.S. government, corporations, foundations and other businesses, agencies and individuals and provides accounting and auditing and administrative procedures to assure proper fiscal management but has no independent power to spend the funds for its own projects (the recipient agency has the sole authority to utilize grant award); the agency is acting only as a conduit in the transfer of funds and there is no common power between the contracting parties. The intergovernmental agreement statutes would not apply. (I79-193)
This latter category of agreement requires careful review of (a) the applicable statutory or regulatory provisions and (b) the substance of what the parties are agreeing to before a determination can be made on the applicability of the IGA requirements.
- The Intergovernmental Agreement statutory provisions are cumulative and supplemental and do not authorize any public agency to exercise any power or engage in any business or enterprise that such public agency is not authorized to exercise or engage in pursuant to other provisions of law.
Interagency Service Agreements
- Interagency Service Agreements (ISA) are entered into between budget units. An ISA may provide for reimbursement for services performed or advancement of funds for services to be performed. (ARS § 35-148.A) This provision is a funding mechanism.
- ISAs do not apply to money realized from the sale of personal property or from the sale of real property or improvements thereon by ABOR and any of the state colleges. (ARS § 35-148.C)
- "Budget unit" means any department, commission, board, institution or other agency of the state organization receiving, expending or disbursing state funds or incurring obligations against the state. ABOR, ASU, ASU West, ASU East, U of A and NAU are considered to be major budget units, as are: DES, DOC, AHCCS, DHS, DPS, Community Colleges Board, the judiciary, DOA, Lottery Commission, DEQ, ADOT and Dept. of Youth treatment and rehabilitation.
- Identify each public agency which is a contracting party by correct statutory title and indicate whether it is a State, county or city, town or other public or municipal agency or instrumentality.
- Place into the recitals or elsewhere in the agreement, the exact statutory references under which each contracting party is empowered or authorized to exercise the powers contemplated.
- State the duration.
- State the purpose or purposes to be accomplished.
- State the manner of financing the undertaking and, where applicable, state the manner of establishing and maintaining a budget for the project.
- State the method and means of partial or complete termination.
- Where property is to be acquired solely for the accomplishment of the purpose or purposes of the agreement, provide a means or method for disposing of such property upon the termination or completion of the agreement.
- Provide in the agreement or contract that it will be filed with (a) the Maricopa County Recorder's Office if all parties are located in Maricopa County or (b) the Secretary of State if one or more of the parties resides other than in Maricopa County. State that the agreement will not become effective until after it has been filed.
- Provide in the agreement for cancellation by the ASU President in accordance with ARS § 38-511.
- State that the parties agree to comply with Executive Order 75-5 and incorporate the same into the agreement and to comply with all applicable state and federal laws, rules, regulations regarding equal opportunity, and nondiscrimination.
- State that in the event of a dispute under the agreement, the parties agree to use arbitration to the extent required under ARS § 12-1518 and ARS §12-133.
- Provide that to the extent required by ARS § 35-214, the parties agree to retain all books, accounts, reports, files and other records relating to the Agreement and to make such records available at all reasonable times for inspection and audit by the University or the Auditor General of the State of Arizona, or their agents, during the term of and for a period of five years after the completion of the agreement.
- Provide that the personnel of the other party to the agreement will not for any purpose be considered employees or agents of the University and that the other party assumes full responsibility for the actions of its personnel while performing services under the agreement, and shall be solely responsible for their supervision, daily direction and control, payment of salary (including withholding income taxes and social security), worker’s compensation and disability benefits.
- Assure that indemnification and hold harmless clauses are stricken or qualified to except therefrom a state agency or board.
- Include with any agreement, authenticated copies of each "appropriate action by ordinance, resolution or otherwise" of the governing bodies authorizing the future execution (signing) thereof.
- Submit the agreement to OGC for its determination of whether the agreement is in proper form and within the powers and authority granted to ABOR and/or the University by law before the President or his designee actually is presented with the agreement for signature.
- If OGC determines that the agreement is in proper form and within the powers and authority granted by law, note such determination on the agreement. The following provision should be included in the proposed agreement:
"Pursuant to ARS § 11-952, the foregoing agreement has been submitted to Counsel to the Arizona Board of Regents (ABOR) for and on behalf of Arizona State University. The undersigned has determined that said agreement is in proper form and is within the powers and authority granted under the laws of the State of Arizona to ABOR for and on behalf of Arizona State University."
Completing the Aggreement
All documents will then be returned to the party from whom it was received. In the event that OGC determines that the agreement is not in proper form or not within the powers and authority granted under the law, the agreement will be returned with a letter or memorandum identifying the deficiencies.
After OGC has made a favorable determination, the parties should then execute (sign) the agreement and file it with the appropriate recording office.