IGA.PDF

INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY
AND THE TOWN OF QUEEN CREEK FOR THE IMPROVEMENTS
OF OCOTILLO ROAD FROM 228TH STREET AND MERIDIAN ROAD
(TT061 4)
(C-64-19- -M-00)
This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a political
subdivision of the State of Arizona (County) and the Town of Queen Creek, an Arizona municipal
corporation (Town). The County and Town are collectively referred to as the Parties or individually as
a Party.
This Agreement shall become effective as of the date it is approved by the Maricopa County Board of
Supervisors.
STATUTORY AUTHORIZATION
1. A.R.S. Section §11-251 and Sections 28-6701 et. seq. authorize each County to lay out,
maintain, control and manage public roads within its respective County to acquire and condemn
property necessary for such purposes, and to enter into this Agreement.
2. A.R.S. Sections §§11-951 et. seq. authorize public agencies to enter into Intergovernmental
Agreements for the provision of services or for joint or cooperative action.
3. A.R.S. Section 9-240 and Sections 9-276 et. seq. authorize Town to lay out and establish,
regulate and improve streets within Town and to enter into this Agreement.
BACKGROUND
4. Ocotillo Road from Signal Butte Road to Meridian Road is a two-lane undivided road owned and
Road is partly under the jurisdiction of the County and partly under the jurisdiction of the Town.
5. In a collaborative effort between the County and the Town, Ocotillo Road will be widened to five
(5) through lanes with raised landscape median, curb, gutter, bike lanes, sidewalk, drainage;
traffic signal, traffic signal interconnect, street lights, private utility coordination and relocation;
and right-of-way and easement acquisition (Project).
6. The Town is currently developing design plans to improve Ocotillo Road to Town standards and
anticipates to begin construction in fiscal year 2020.
7. Approximately 50% of the Project is adjacent to unincorporated County jurisdiction. The County's
total Project Costs minus the cost of Enhancements, shall not exceed $1,002,596.
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8. The County financial participation shall be limited to aspects of the Project that are essential for
the establishment of a safe roadway. The County will not financially participate in Project
enhancements such as landscaping, irrigation, street lighting, visual mitigation, decorative
pavers, or street furniture unless there is a benefit to the County that can be demonstrated by a
benefit/cost analysis.
PURPOSE OF THE AGREEMENT
9. The purpose of this Agreement is to. identify and define the respective roles and responsibilities of
the County and Town for the Project, including but not limited to cost sharing, design, permitting,
right-of-way acquisition, utility relocation, construction and construction management of the
roadway.
TERMS OF THE AGREEMENT
10. Responsibilities of the County:
10.1 The County shall not review Project plans for compliance with the Town's design
standards and shall not be liable for design deficiencies.
10.2 The County shall provide no-cost permits for construction and traffic control, as
applicable, to the Town for any Project-related work that lies within unincorporated
County boundaries. The County shall not be responsible for plan review and approval,
traffic control, nor inspection and construction approval.
10.3 The County shall contribute $1,002,596 of the estimated cost of the Project Costs, not
including any Town requested Enhancements.
10.4 The County shall be financially responsible for dedicated time by their staff as it relates
to this Project. The cost shall not be credited toward the County's Project Cost share
obligation.
10.5 Not before July 1, 2020, upon completion of construction and receipt of an invoice from
the Town, the County shall remit payment to Town within thirty (30) working days for the
County's Project Cost contribution of $1,002,596. The County shall retain sole discretion
to notify the Town of any advanced availability of funds and may remit payment to the
Town prior to fiscal year 2021.
10.6 The County shall perform the duties of assisting the Town in obtaining the required right
of way for this Project as described in Paragraph A of Exhibit A, which is attached to
this Agreement and incorporated into this Agreement by reference.
11. Responsibilities of the Town:
The Town shall act as the lead agency for the design and construction of the Project,
including, cost-sharing, permitting, environmental clearance, right-of-way acquisition,
utility relocation, and construction management, and annexation of the roadway.
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11.2 The Town shall design and construct the Project to Town standards in compliance with
the approved plans and specifications. The Town shall be responsible for review and
approval of all plans and be responsible for construction inspection and approval.
11.3 The Town shall consult and coordinate with the County throughout the various phases
of the Project and provide them the opportunity to review the documents and submit
comments.
11.4 The Town shall provide the County with a project schedule and at least quarterly project
status reports for the Project.
11.5 The Town shall apply for no-cost permits, as applicable, for any Project related work
that lies within unincorporated County boundaries.
11.6 The Town shall ensure contractor liability insurance and will have the contractor list
Maricopa County as Additional Insured.
11.7 Town shall be responsible for all Project Costs, beyond the County's contribution of
$1,002,596.
11.8 Not before July 1, 2020 and upon completion of construction the Town shall invoice the
County for the County's cost contribution.
11.9 The Town shall perform the duties of attempting to acquire the required right of way for
this Project as described in Paragraph B of Exhibit A, which is attached to this
Agreement and incorporated into this Agreement by reference.
11.10 Upon execution of the Agreement, the Town shall:
11.10.1 Accept all maintenance and operation responsibility for all components of the
Project; and
11.10.2 Begin the annexation of all of the unincorporated areas within the Project,
specifically any and all County right-of-way on Ocotillo between 228th and Meridian
limits and complete the annexation within ninety (90) days subject to the
requirements of A.R.S. Section 9-471.
GENERAL TERMS AND CONDITIONS
12. By entering into this Agreement, the Parties agree that to the extent permitted by law, each Party
will indemnify, defend and save the other Party 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 the 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.
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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.
13. This Agreement shall become effective as of the date it is approved by the Maricopa County
Board of Supervisors and remain in full force and effect until all stipulations previously indicated
have been satisfied except that it may be amended upon written Agreement by all Parties. Any
Party may terminate this Agreement upon furnishing the other Party with a written notice at least
thirty (30) days prior to the effective termination date.
14. This Agreement shall be subject to the provisions of A.R.S. § 38-511.
15. The Parties warrant that they are in compliance with A.R.S. § 41-4401 and further acknowledge
that:
16.1 Any contractor or subcontractor who is contracted by a Party to perform work on the Project
shall warrant their compliance with all federal immigration laws and regulations that relate
to their employees and their compliance with A.R.S. § 23-214(A), and shall keep a record
of the verification for the duration of the employee's employment or at least three years,
whichever is longer.
16.2 Any breach of the warranty shall be deemed a material breach of the contract that is subject
to penalties up to and including termination of the contract.
16.3 The Parties retain the legal right to inspect the papers of any contractor or subcontractor
employee who works on the Project 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.
16.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or employee
of the Parties to this Agreement.
16. Each Party to this Agreement warrants that neither it nor any contractor or vendor under contract
with the 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 in the Project described in this Agreement.
17. The following shall constitute a material breach of this Agreement and an event of default
("Default"): a Party's failure to observe or perform any of the material covenants, conditions or
provisions of this Agreement to be observed or performed by that Party ("Defaulting Party"), where
such failure shall continue for a period of thirty (30) days after the Defaulting Party receives written
notice of such failure from the non-defaulting Party provided, however, that such failure shall not
be a Default if the Defaulting Party has commenced to cure the Default 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 the Parties agree in writing that additional time is
reasonably necessary under such circumstances to cure such default. In the event a Defaulting
Party fails to perform any of its material obligations under this Agreement and is in Default pursuant
to this Section, the non-defaulting Party, at its option, may terminate this Agreement. Further, upon
the occurrence of any Default and at any time thereafter, the non-defaulting party may, but shall
not be required to, exercise any remedies now or hereafter available to it at law or in equity.
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18. All notices required under this Agreement to be given in writing shall be sent to:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations
2901 W. Durango Street
Phoenix, Arizona 85009
Town of Queen Creek
Attn: Public Works Director
22358 South Ellsworth Road
Queen Creek, Arizona 85142
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 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.
19. This Agreement does not imply authority to perform any tasks, or accept any responsibility, not
expressly stated in this Agreement.
20. This Agreement does not create a duty or responsibility unless the intention to do so is clearly and
unambiguously stated in this Agreement.
21. This Agreement does not grant authority to control the subject roadway, except to the extent
necessary to perform the tasks expressly undertaken pursuant to this Agreement.
22. Any funding provided for in this Agreement, other than in the current fiscal year, is contingent upon
being budgeted and appropriated by the Maricopa County Board of Supervisors and the Queen
Creek Town Council in such fiscal year. This Agreement may be terminated by any Party at the
end of any fiscal year due to non-appropriation of funds.
23. 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.
24. This Agreement and all Exhibits attached to this 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, between
the Parties other than as set forth in this Agreement, and those agreements which are executed
contemporaneously with this Agreement. This 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.
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25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. The Parties 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 such
Party pursuant to this Agreement.
33. The Parties hereby agree that the venue for any claim arising out of or in any way related to this
Agreement shall be Maricopa County, Arizona.
34. This Agreement shall be governed by the laws of the State of Arizona.
End of Agreement Signature Page Follows
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
itilARICOPA COUNTY
Recommended by:
JOlifer Toth,
Tfanspoitation Director
Approved and Accepted by:
Chairman Date
Board of Supervisors
Attest by:
Clerk of the Board Date
APPROVAL OF DEPUTY COUNTY ATTORNEY
I hereby state that I have reviewed the proposed Intergovernmental Agreement and declare the Agreement
to be in proper form and within the powers and authority granted to the Party by their respective governing
bodies 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.
TOWN OF TOWN
Recommended by:
Approved and Accepted by:
Gail Barn
Mayor
Attest by:
APPROVAL OF TOWN ATTORNEY
I hereby state that I have reviewed the proposed Intergovernmental Agreement and declare the Agreement
to be in proper form and within the powers and authority granted to the Party by their respective governing
bodies under the laws of the State of Arizona.
ate
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EXHIBIT A
RIGHT-OF-WAY ASSISTANCE
Responsibilities of the County:
A. The County shall conduct right-of-way related activities that include the following:
1 The County shall assist with the acquisition of property rights (fee simple and/or easements)
within the County's jurisdiction necessary for the Project, as requested by the Town, and
shall, as needed, authorize the County's Legal Representative (which may be the County
Attorney's Office or outside counsel, depending upon availability of resources within the
County Attorney's Office) to initiate, file and perform all acts in the manner required by law
to condemn property in the County's jurisdiction and obtain an Order of Immediate
Possession in the County that is deemed necessary for the Project ("Real Estate Support").
When a property to be acquired extends into both municipal and county jurisdiction, the
County and the Town shall confer and attempt to develop a plan whereby all the needed
property can be acquired in a single action, rather than have two litigations proceed at the
same time against an owner.
2. The County shall provide Real Estate Support within a realistic timeframe as determined by
the accessibility of available agents and timely delivery by the Town of right-of-way plans,
parcel plat(s), legal description(s), and a complete copy of the Town's acquisition file(s) for
the parcels to be condemned.
3. The County shall determine whether the method of compensation by the Town for the costs
that is prescribed in Paragraph B.8 of Exhibit A shall be direct payment by the Town to the
County's vendor or shall be a reimbursement to the County.
4. The County shall invoice the Town on a monthly basis for any right-of-way assistance
expenses that are not subject to direct payment. The County shall provide invoice
notification that includes an itemization of expenses being requested for payment.
5. At the time of the Town's request pursuant to Paragraph B.3 of Exhibit A, the County shall
assume all responsibility for the management of the acquisition, in accordance with the
statutes, policies, and procedures that govern the County's ability to acquire the land rights.
The County shall, ten days prior to concluding any settlement or purchase of property or
property rights necessary for the Project, seek and duly consider the Town Engineer's
written comments with regards to such proposed settlement or purchase; provided,
however, that the County shall retain final decision-making authority with regard to same.
Responsibilities of the Town:
B. Town shall conduct right-of-way related activities that include, but are not limited to, the following:
1. The Town shall identify required right-of-way, parcel numbers and property owners.
2. The Town shall be responsible for contacting property owners, submitting an offer to
property owners for the acquisition of the right-of-way, negotiating with property owners for
the acquisition of right-of-way and paying property owners for the right-of-way. if the Town's
negotiations result in the successful acquisition of all or a portion of the needed right-of-
way, the Town shall also be responsible for all escrow fees and related costs. The Town
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shall conduct all activities required pursuant to this Paragraph in a timely manner in order
for it to comply with the requirements of Paragraph B.4 of Exhibit A.
3. If the Town is unsuccessful in acquiring all required right-of-way from property owners within
County jurisdiction, the Town shall, at least ten (10) months prior to the Town needing
access to the required right-of-way to begin construction, request the County commence
condemnation proceedings to acquire the right-of-way and related easements within the
County's jurisdiction needed for the Project. The Town acknowledges that due to statutory
requirements, time needed to complete necessary tasks and potential staff constraints, the
County needs a minimum of ten (10) months prior to construction to file condemnation
proceedings and obtain an Order for Immediate Possession, The ten (10) month timeline is
contingent upon adequate staffing for County Real Estate Department, Maricopa County
Attorney's Office and receipt of all relevant information and documentation from the Town
that is sufficient to proceed with acquisition and/or condemnation processing.
4. At the time of the Town's request pursuant to Paragraph B.3 of Exhibit A, the Town shall
provide to the County recordable legal descriptions, maps, and exhibits required by the
County to complete right-of-way acquisitions.
5. At the time of the Town's request pursuant to Paragraph B.3 of Exhibit A, the Town shall
cease and desist all contact with the property owners, and shall confer to the County all
responsibility for the management of the necessary right-of-way acquisitions or
condemnation for the Project.
6. The Town shall refer any and all escalation of questions and concerns with the acquisition
of the Project to the management of the County Real Estate Department.
7. The Town shall provide any information requested by the County as to its proposed
construction or related issues in order to assist in the County's acquisition of the property.
8. The Town shall pay directly to the County's vendor or reimburse the County as determined
pursuant to Paragraph A.3 of Exhibit A for all expenses incurred by the County for Real
Estate Support, including, but not limited to:
a. Title Examinations and Reports
b. Property Appraisals
C. Cost of acquisition of property and/or easements, including escrow and closing costs
d. Cost of condemnation proceedings if needed
e. All related attorney's fees and costs provided by Maricopa County
9. Notwithstanding the provisions of Paragraph B.3 of Exhibit A, reimbursement to the County
for the stipulated cost of acquisition of property or easements in excess of 30% of the
County's most current appraised fair market value shall require authorization by the Town
Council.
10. Notwithstanding the provisions of Paragraph B.3 of Exhibit A, the Town, at the County
discretion and pursuant to Paragraph A.3 of Exhibit A, shall pay directly to the County's
vendor or reimburse the County directly for the full cost of acquisition as determined by any
non-stipulated judgment entered in a condemnation case filed by Maricopa County pursuant
to the terms of this Agreement.
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