FINAL VERSION STOCKPILED MILLINGS FCD IGA.PDF

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY
AND THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
FOR JOINT USAGE OF DISTRICT SITES FOR STORAGE AND
STOCKPILED MILLINGS
(County C-64-19-___-M-00;
District C-69-19-___-_-00, IGA No. 2019A002)
This Intergovernmental Agreement (Agreement) is between Maricopa County, 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 District
are collectively referred to as the Parties or individually as a Party.
STATUTORY AUTHORIZATION
1. A.R.S. Section 11-251 and Sections 28-6701 et. seq. authorize the County to lay
out, maintain, control and manage public roads within the County.
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 48-3603, as revised, authorizes the District to enter into this
Agreement and has authorized the undersigned to execute this Agreement on
behalf of the District.
BACKGROUND
4. The District has two storage and stockpiled milling sites available for County’s
continued and future Roadway Maintenance Division (Maintenance) usage near
Deer Valley Road/US 60 (McMicken Dam area) and Van Buren Street/Sun Valley
Parkway near I-10, as per attached Exhibits “A” and “B”, respectively, (Site or
Sites).
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5. County’s contractor delivered processed millings from its Sun Valley Parkway
projects of approximately 70,000 cubic yards to each of the Sites. Additionally,
County also installed a fence around each of the Sites, plus a rolling gate, for which
each Party has a key for access.
6. The Site in Exhibit “A” referenced above is approximately 9.3 square acres and
contains a gas line at the stockpile ingress/egress location. County covered that
entrance area with 24" of millings (berm) for gas line protection prior to delivery of
millings. The Site in Exhibit “B” is approximately 4.76 square acres.
7. This Agreement shall become effective as of the date it is fully executed by the
Maricopa County Board of Supervisors and the Flood Control District of Maricopa
County Board of Directors. It shall remain in full force and effect until all stipulations
previously indicated have been satisfied, except that it may be amended upon
written Agreement by the Parties.
PURPOSE OF THE AGREEMENT
8. The purpose of this Agreement is to identify and define the responsibilities of the
County and District with respect to usage of the Sites, which includes, but are not
limited to, storage of equipment and stockpiled millings already at the Sites, plus
the overall maintenance and access of the Sites. It is in the best interests of the
Parties to collaborate on usage of the Sites by the Parties’ respective Roadway
Maintenance personnel or appropriate contractors.
TERMS OF THE AGREEMENT
9. Responsibilities of the County:
9.1 Coordinate its Maintenance needs for equipment storage, staging and
access to stockpiled millings with District Operations and Maintenance
(O&M) as needed.
9.2 Maintain the millings berm over the gas line in Site “A,” the fences and
rolling gates (as described in Exhibit “C”) at each Site, while occupied with
County’s stockpiled millings and/or County equipment. Coordinate with the
District on the Interlock System to be used by either Party for access to the
Sites.
9.3 Require its contractors needing stockpiled millings for County
Transportation Improvement Plan (TIP) projects to obtain appropriate
permits from the District. Coordinate with District Operations and
Maintenance Division (O&M) personnel regarding need for permits where
Maintenance Job Order Contracting (JOC) vendors are involved.
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9.4 Make no modifications to the Sites, or stockpile additional material, without
prior written consent of the District’s O&M Division Manager, or
appropriate District permit.
9.5 Ensure the Sites comply with applicable regulations, rules, laws,
ordinances and statutes. At the time the Site/Sites are vacated by County,
County shall leave the Site/Sites in as near the same condition that it was
prior to the commencement of use by County. County shall remove all
tools, equipment and other property taken into, or placed upon, the
Site/Sites by County, including the fences and gates.
10. Responsibilities of the District:
10.1 Authorize County’s Maintenance personnel access, at no cost, to District
property to park vehicles and place, store and remove stockpiled millings
within the Sites.
10.2 Coordinate with County Maintenance personnel on District O&M stockpiled
millings requirements and schedule, as needed. Contact County’s
Maintenance Superintendent as soon as possible should either Site
availability change, whether a portion of the Site or the entire Site. If either
Site should become unavailable to County, proper notice shall be given by
the District, and this Agreement shall remain viable, as per Section 12
below.
10.3 The Sites, and access thereto, will be made available to County
Maintenance and related on-call contractors, without need of a lease or
right-of-way (ROW) permit. The exception to this would be for other uses
related to County TIP projects, including staging or contractor pick up of
stockpiled millings, which then require a ROW permit. Maintenance JOC
vendor activity will be assessed by O&M for permit requirements.
10.4 Coordinate with County on the Interlock System to be used by either Party
for access to the Sites’ rolling gates.
GENERAL TERMS AND CONDITIONS
11. By entering into this Agreement, the Parties agree that 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
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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. Notwithstanding the provisions of Paragraph 7 of this Agreement, any Party may
terminate this Agreement upon furnishing the other Party with a thirty (30) 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 on the Sites 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 on the Sites, 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.
15. Each Party to this Agreement warrants that neither it, nor any contractor or vendor
under contract with a Party to utilize the Sites as stipulated under this Agreement,
is suspended or debarred by any federal agency which has provided funding that
will be used for TIP project activities involving this Agreement.
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16. All notices required under this agreement to be given in writing shall be sent to:
County:
(pertaining to Site/Sites usage details):
Maricopa County Department of Transportation
Attn: Countywide Roadway Maintenance Superintendent
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 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.
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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 does not grant authority to control the subject SITES, except to
the extent necessary to perform the tasks expressly undertaken pursuant to this
Agreement.
20. 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.
21. This Agreement, and all Exhibits attached to this Agreement, set forth all of the
covenants, promises, agreements, conditions and understandings as to the joint
usage of the Sites 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 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.
22. 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.
23. 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.
24. 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.
25. 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
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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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. This Agreement shall be governed by the laws of the State of Arizona.
32. 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.
End of Agreement - Signature Pages Follow
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
MARICOPA COUNTY
Recommended by:
Jennifer Toth, P.E. Date
Transportation 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 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:
_____________, 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 the proposed Intergovernmental Agreement and
declare the Agreement 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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