FIRST AMENDMENT TO IGA WITH DISTRICT FOR SUN CITY AREA DRAINAGE FEATURES .PDF

When Recorded Return to:
Flood Control District of Maricopa County
2801 West Durango Street
Phoenix, AZ 85009-6399
FIRST AMENDMENT TO THE INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND THE FLOOD CONTROL DISTRICT OF
MARICOPA COUNTY
For Maintenance of Sun City and Sun City West Drainage Features
(County C-64-00-055-2-01; FCD IGA 1999A019, C-69-00-028-2-01)
This First Amendment (First Amendment) to the Intergovernmental Agreement for
Maintenance of Sun City and Sun City West Drainage Features (C-64-00-055-2-00 and C-
69-00-028-2-00) is entered into by and between the County of Maricopa, a political
subdivision of the State of Arizona, (County), and The Flood Control District of Maricopa
County, a political subdivision of the State of Arizona (District); the County and the District
are collectively referred to herein as the Parties, or individually as a Party.
RECITALS
1. The County is empowered by Arizona Revised Statutes (A.R.S.) § 11-952 to enter
into this Agreement and has authorized the undersigned to execute this Agreement
on behalf of the County.
2. The District is empowered by to A.R.S. § 48-3603, as revised, to enter into this
Agreement and has authorized the undersigned to execute this Agreement on
behalf of the District.
3. The Parties previously entered into an Intergovernmental Agreement (County: C-64-
00-055-2-00 and District: C-69-00-028-2-00), recorded at Maricopa County
Recorder No. 1999-0869579 (Agreement) for Maintenance of Sun City and Sun
City West Drainage Features. The Agreement was effective on September 17,
1999, the date it was recorded with the Maricopa County Recorder.
4. The Agreement references historical agreements between Del Webb and the
County regarding several parcels of land improved with drainage features that were
conveyed from Del Webb to the County via warranty deeds. Exhibits to the
Agreement reflect the operation and maintenance obligations for the County, acting
by and through its Department of Transportation (MCDOT), and for the District.
5. The Parties desire to amend the Agreement to update each Party’s responsibilities
for the operation and maintenance of the drainage features set forth in Exhibit A
(District) and Exhibit B (County) to the Agreement. Three (3) drainage features
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currently referenced in Exhibit B to the Agreement as County-maintained, need to
be moved to Exhibit A to the Agreement for District repairs, operation, and
maintenance. Furthermore, a large drainage feature north of Olive Avenue, from
103rd – 99th Avenue, was omitted from the Agreement and will now be added to
Exhibit A to the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants herein set forth,
the Parties agree as follows:
AGREEMENT
6. Exhibit A to the Agreement is amended as follows:
a. Add Parcel No. 35, Tracts “E”, “F” and “G” of Sun City West Unit 37,
according to the plat of record in the office of the County Recorder of
Maricopa County, Arizona, in Book 313 of Maps, Page 49 [Assessor Parcel
No. 232-17-907, 908 and 909, respectively] (Recordation No. 92-574747).
Tract J will remain as is.
b. Add Parcel No. 36, Tract “E” of Sun City Unit 8, according to the plat of
record in the office of the County Recorder of Maricopa County, Arizona, in
Book 114 of Maps, Page 8 [Assessor Parcel No. 142-84-770] (Recordation
No. 1991-0366969).
7. Exhibit B to the Agreement is amended as follows:
a. The property identified as Parcel No. 5 is amended to remove Tracts “E”, “F”
and “G” of Sun City West Unit 37, according to the plat of record in the office
of the County Recorder of Maricopa County, Arizona in Book 313 of Maps,
Page 49 [Assessor Parcel No. 232-17-907, 908 and 909, respectively]
(Recordation No. 92-574747). Tract “J” remains in Parcel No. 5 of Exhibit B.
8. Subparagraph 8.3 of the Agreement is deleted in its entirety and replaced with the
following:
a. After execution of this Agreement, the County shall issue the District a Right-
of-Way Permit with no expiration date and at no cost to the District.
9. Paragraphs 11 and 12 of the Agreement are deleted in their entirety and replaced
with the following:
GENERAL TERMS AND CONDITIONS
10. This Agreement shall become effective as of the date it is approved by the
Parties and remain in full force and effect until all stipulations previously
indicated have been satisfied.
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11. To the extent permitted by law, each Party will indemnify, defend and save
the other Parties harmless, including any of the Parties’ departments,
agencies, officers, employees, elected officials or agents, from and against
all loss, expense, damage or claim of any nature whatsoever which is caused
by any activity, condition or event arising out of the negligent performance or
nonperformance by the indemnifying Party of any of the provisions of this
Agreement. By entering into this Agreement, each Party indemnifies the
other against all liability, losses and damages of any nature for or on account
of any injuries or death of persons or damages to or destruction of property
arising out of or in any way connected with the performance or
nonperformance of this Agreement, except such injury or damage as shall
have been caused or contributed to by the negligence of that other Party.
The damages which are the subject of this indemnity shall include but not be
limited to the damages incurred by any Party, its departments, agencies,
officers, employees, elected officials or agents. In the event of an action, the
damages which are the subject of this indemnity shall include costs,
expenses of litigation and reasonable attorney’s fees.
12. Any Party may terminate this Agreement upon furnishing the other Party with
a sixty (60) day written notice.
13. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
14. The Parties warrant that they are in compliance with A.R.S. Section 41-4401
and further acknowledge that:
14.1 Any contractor or subcontractor who is contracted by a Party to
perform work under this Agreement shall warrant their compliance
with all federal immigration laws and regulations that relate to their
employees and their compliance with A.R.S. Section 23-214(A), and
shall keep a record of the verification for the duration of the
employee’s employment or at least three (3) years, whichever is
longer.
14.2 Any breach of this warranty shall be deemed a material breach of the
Agreement that is subject to penalties up to and including termination
of the Agreement.
14.3 The Parties retain the legal right to inspect the papers of any
contractor or subcontractor employee who works under this
Agreement, to ensure that the contractor or subcontractor is
complying with the warranty above and that the contractor agrees to
make all papers and employment records of said employee available
during normal working hours in order to facilitate such an inspection.
14.4 Nothing in this Agreement shall make any contractor or subcontractor
an agent or employee of the Parties to this Agreement.
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15. Each Party to this Agreement warrants that neither it, nor any contractor or
vendor under contract with a Party, to provide goods or services toward the
accomplishment of the objectives of this Agreement, is suspended or
debarred by any federal agency which has provided funding that will be used
for activities under this Agreement.
16. All notices required under this agreement to be given in writing shall be
sent to:
County:
(Pertaining to drainage features concerns):
Maricopa County Department of Transportation
Attn: Roadway Maintenance Division Manager
2909 W. Durango Street
Phoenix, Arizona 85009
(Pertaining to IGA concerns):
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch
2901 W. Durango Street
Phoenix, Arizona 85009
DISTRICT:
Flood Control District of Maricopa County
Operation and Maintenance Division Manager
2801 W. Durango Street
Phoenix, Arizona 85009
A copy of this IGA shall be mailed or delivered to:
Maricopa County Property Management
Real Estate Department
2801 W. Durango Street
Phoenix, Arizona 85009
All notices required or permitted by this Agreement or applicable law shall be
in writing and may be delivered in person (by hand or courier) or may be sent
by regular, certified or registered mail or U.S. Postal Service Express Mail,
with postage prepaid, and shall be deemed sufficiently given if served in a
manner specified in this paragraph. Either Party may by written notice to the
other specify a different address for 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
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72 hours after the notice is addressed as required in this paragraph 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 notice to the Postal Service or courier.
17. This Agreement does not imply authority to perform any tasks, or accept
any responsibility, not expressly stated in this Agreement.
18. This Agreement does not create a duty or responsibility unless the
intention to do so is clearly and unambiguously stated in this Agreement.
19. This Agreement shall be binding upon and inure to the benefit of the Parties
and their respective successors and assignees. Neither Party shall assign its
interest in this Agreement without the prior written consent of the other Party.
20. This First Amendment, along with the Agreement, and all Exhibits attached to
the Agreement, set forth all of the covenants, promises, agreements,
conditions and understandings between the Parties to this Agreement, and
there are no covenants, promises, agreements, conditions or
understandings, either oral or written, as to the joint usage of the Property
between the Parties other than as set forth in the Agreement, this First
Amendment, and any agreements between the Parties which were executed
contemporaneously with the Agreement. This First Amendment, along with
the Agreement 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 Agreement. This Agreement
cannot be modified or changed except by a written instrument executed by
all of the Parties hereto. Each Party has reviewed this Agreement and has
had the opportunity to have it reviewed by legal counsel.
21. The waiver by any Party of any right granted to it under this Agreement is not
a waiver of any other right granted under this Agreement, nor may any
waiver be deemed to be a waiver of a subsequent right obtained by reason
of the continuation of any matter previously waived.
22. Wherever possible, each provision of this Agreement shall be interpreted in
such a manner as to be valid under applicable law, but if any provision shall
be invalid or prohibited under the law, 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.
23. Except as otherwise provided in this Agreement, all covenants, agreements,
representations and warranties set forth in this Agreement or in any
certificate or instrument executed or delivered pursuant to this Agreement
shall survive the expiration or earlier termination of this Agreement for a
period of one (1) year.
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24. Nothing contained in this Agreement shall create any partnership, joint
venture or other agreement between the Parties hereto. Except as expressly
provided in this Agreement, no term or provision of this Agreement is
intended or shall be for the benefit of any person or entity not a party to this
Agreement, and no such other person or entity shall have any right or cause
of action under this Agreement.
25. Time is of the essence concerning this Agreement. Unless otherwise
specified in this Agreement, the term “day” as used in this Agreement means
calendar day. If the date for performance of any obligation under this
Agreement or the last day of any time period provided in this Agreement falls
on a Saturday, Sunday or legal holiday, then the date for performance or
time period shall expire at the close of business on the first day thereafter
which is not a Saturday, Sunday or legal holiday.
26. 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 Agreement.
27. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute the
same instrument. Faxed, copied and scanned signatures are acceptable as
original signatures.
28. The Parties shall 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 such Party pursuant to this Agreement.
29. Venue for any claim arising out of or in any way related to this Agreement
shall be Maricopa County, Arizona.
30. This Agreement shall be governed by the laws of the State of Arizona.
31. 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 doing so, 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.
32. The foregoing sections contain all of the changes made by this First
Amendment. All other terms of the Agreement not amended herein
remain the same and in full force and effect.
End of Agreement - Signature Page Follows
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
MARICOPA COUNTY
Recommended by:
Jennifer Toth, P.E. Date
Transportation Director
Approved and Accepted by:
Bill Gates, Chairman Date
Board of Supervisors
Attest by:
Clerk of the Board Date
APPROVAL OF DEPUTY COUNTY ATTORNEY
I hereby state that I have reviewed this Agreement and declare it to be in proper form and
within the powers and authority granted to the County by its governing body under the laws
of the State of Arizona.
Deputy County Attorney Date
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
Recommended by:
Michael A. Fulton Date
Director
Approved and Accepted by:
Bill Gates, Chairman Date
Board of Directors
Attest by:
Clerk of the Board Date
APPROVAL OF FLOOD CONTROL DISTRICT GENERAL COUNSEL
I hereby state that I have reviewed this Agreement and declare it to be in proper form and
within the powers and authority granted to the District by its governing body under the laws
of the State of Arizona.
District General Counsel Date
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