CITY OF CHANDLER - OCOTILLO ROAD TT0627.PDF

INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND
CITY OF CHANDLER FOR RIGHT OF WAY ASSISTANCE AND IMPROVEMENTS
TO OCOTILLO ROAD FROM GILBERT ROAD TO 148TH STREET
(T10627)
(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 City of Chandler, an Arizona municipal
corporation (City). The County and City are collectively referred to as the Parties or individually
as a Party.
STATUTORY AUTHORIZATION
1. A.R.S. §§ 11-251 and 28-6701 et seq. authorize the County to lay out, maintain, control
and manage public roads within the County.
2. A.R.S. § 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. § 9-240 authorizes the City to lay out and improve new streets, avenues and
alleys.
BACKGROUND
4. Ocotillo Road is located in southeastern Maricopa County and is partly under the
jurisdiction of the County, partly under the jurisdiction of the City and partly under the
jurisdiction of the City of Chandler.
5. The City is currently developing design plans to improve Ocotillo Road from Gilbert
Road to 148th Street (Project) under the City's CIP Project No. 6ST641 identified in the
Regional Transportation Plan Arterial Life Cycle Program (RTP ALCP) dated August
29, 2018, as a Major Arterial. The City plans to begin construction in fiscal year 2020.
6. When completed, the Project will improve Ocotillo Road from Gilbert Road to 148t h
Street. The proposed improvements include the following:
6.1 Widening Ocotillo Road to four through lanes with raised landscape median,
curb, gutter, and sidewalk;
6.2 Storm water drainage;
6.3 Traffic signal, traffic signal interconnect, and streetlights;
6.4 Private utility coordination and relocation;
6.5 Right-of-way and easement acquisition.
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7. Design and Construction Project Costs are estimated in FY2018 dollars as follows:
7.1 Total Project Cost = $8,546,370 for Design and Construction
7.2 MAG ALCP Funds = $3,178,000
7.3 Project Enhancements =$757,610
7.3 Local Match = $4,610,760
8. Approximately 8% of the Project is adjacent to unincorporated County jurisdiction.
County's total Project cost share responsibility is calculated with the following formula:
0.08 * (Total Project Cost — MAG ALCP Funds — Project Enhancements). County's total
Project cost share responsibility shall be $368,861.
9. Project Enhancements include, but are not limited to, landscape and landscape
irrigation, screen walls, upgraded street lighting, upgraded bridge barriers, bus pads
and shelters, monuments, signs and kiosks, shade structures, stamped asphalt or
concrete pavers, hardscape furniture, and underground utilities.
PURPOSE OF THE AGREEMENT
10. The purpose of this Agreement is to identify and define the responsibilities of the County
and the City for the Project, including cost sharing, design, construction, construction
management, rights-of-way acquisition, utility relocation, and annexation of the Project
and Project Area.
11. Responsibilities of the County:
11.1 The County will not review Project plans for compliance with the City's design
standards and shall not be liable for design deficiencies.
11.2 The County's financial contribution towards the design and construction of the
Project shall not exceed $368,861.
11.3 Not before July 1, 2020 and upon completion of construction the County shall remit
payment to the City within 30 days of the receipt of an invoice submitted by the
City for the Project Costs for design and construction. The County shall retain sole
discretion to notify the City of any advanced availability of funds and may remit
payment to the City prior to fiscal year 2021.
11.4 The County shall assist the City 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.
12. Responsibilities of the City:
12.1 Upon execution of this Agreement, the City shall act as the lead agency and shall
assume responsibility and liability for the design, utilities and utility relocation,
construction and construction management, inspection, operation, maintenance
and other aspects of the Project until the completion of the annexation.
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12.2 The City 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.
12.3 Not before July 1, 2020 and upon completion of construction the City shall invoice
the County for the County's cost contribution of the construction cost per
Paragraph 8 of this Agreement.
12.4 The City shall design and construct the Project to City standards in compliance
with the approved plans and specifications. The City shall be responsible for review
and approval of all plans and be responsible for construction inspection and
approval.
12.5 The City shall ensure contractor liability insurance and will have the contractor list
Maricopa County as Additional Insured.
12.6 The City shall be financially responsible for dedicated time by their staff, including
plan reviews and inspections, as it relates to this Project. The cost shall not be
credited toward the City's cost share obligation.
12.7 Upon execution of this Agreement, the City shall begin the annexation of the
Project prior to the start of construction and Notice to Proceed to the contractor.
12.8 Upon execution of the Agreement, the Town shall:
12.8.1. Accept all liability, maintenance and operation responsibility for all
components of the Project; and
12.8.2. Begin the annexation of all of the unincorporated areas within the Project
and complete the annexation within ninety (90) days subject to the
requirements of A.R.S. Section 9-471.
GENERAL TERMS AND CONDITIONS
13. 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. 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.
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14. 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.
15. This Agreement shall be subject to the provisions of A.R.S. § 38-511.
16. 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.
17. 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.
18. 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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19. 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
City of Chandler
Attn: Public Works 8, Utilities Director
Mail Stop 402
P.O. Box 4008
Chandler, Arizona 85244-4008
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.
20. This Agreement does not imply authority to perform any tasks, or accept any responsibility,
not expressly stated in this Agreement.
21, This Agreement does not create a duty or responsibility unless the intention to do so is
clearly and unambiguously stated in this Agreement.
22. 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.
23. 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 Chandler City 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.
24. 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.
25. 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
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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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
MARICOPA COUNTY
Recommended by:
Jennifir Tdth,
Trankaaation 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 Parties 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.
CITY OF CHANDLER
Approved and Accepted by:
Date
Attest by:
APPROVAL OF CITY 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 Parties by their
respective governing bodies under the laws of the State of Arizona.
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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:
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 City, 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
City 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 City
of right-of-way plans, parcel plat(s), legal description(s), and a complete copy of
the City's acquisition file(s) for the parcels to be condemned.
3. The County shall determine whether the method of compensation by the City for
the costs that is prescribed in Paragraph B.8 of Exhibit A shall be direct payment
by the City to the County's vendor or shall be a reimbursement to the County.
4. The County shall invoice the City 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 City'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 City 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.
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Responsibilities of the City:
B. City shall conduct right-of-way related activities that include, but are not limited to, the
following:
1. The City shall identify required right-of-way, parcel numbers and property owners.
2. The City 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 City's negotiations result in the successful acquisition of all or a
portion of the needed right-of-way, the City shall also be responsible for all escrow
fees and related costs. The City 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 City is unsuccessful in acquiring all required right-of-way from property
owners within County jurisdiction, the City shall, at least ten (10) months prior to
the City 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 City
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 City that is sufficient to proceed with acquisition and/or condemnation
processing.
4. At the time of the City's request pursuant to Paragraph B.3 of Exhibit A, the City
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 City's request pursuant to Paragraph B.3 of Exhibit A, the City
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 City 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.
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7. The City 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 City 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 City Council.
10. Notwithstanding the provisions of Paragraph B.3 of Exhibit A, the City, 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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