Extracted text (via pymupdf_layout)
26310 characters
1 WHEN RECORDED MAIL TO:
2
Maricopa Water District
3 P.O. Box 900
Waddell, AZ 85365-0900
4
5
MARICOPA COUNTY DEPARTMENT OF TRANSPORTATION
6
7 AGREEMENT FOR RELOCATION OF MWD
8 FACILITIES AND PROPERTY INTERESTS
9 Carnerback Road & Beardsley Canal
10
11
1. PARTIES.
12
The Parties to this Agreement for Relocation of MWD Facilities and Property Interests
13 (the "Agreement") are MAR1COPA COUNTY MUNICIPAL WATER CONSERVATION
14 DISTRICT NUMBER ONE, an irrigation and water conservation district, a municipal corporation
15 and a political subdivision of the State of Arizona, hereinafter called "MWD" and MAR1COPA
16 COUNTY, a political subdivision of the State of Arizona, hereinafter called "Maricopa County".
17 2. RECITALS.
18 2.1 MVVD owns, operates and maintains water, electric and communication
19 transmission and distribution systems for the benefit of MVVD customers; and
2.2 Maricopa County proposes to relocate certain MWD facilities and properties to
20
accommodate Maricopa County's Camelback Road & Beardsley Canal Improvement Project,
21
which project is described in Exhibit "A" hereto (the "Road Project"); and
22
2.3 The MWD facilities that are impacted by the Road Project generally include, but
23
are not limited to: (1) the - Beardsley Canal box culvert and wing walls, excluding Maricopa
24 County's roadway pavement section that extends over the box culvert ("Roadway"), located at
I the intersection of Came!back Road and the Beardsley Canal ("MWD Box Culvert"); (2) a
2 portion of Lateral 13 and appurtenant facilities and property interests located along the south
3 side of Came'back Road ("MWD Lateral 13"); and (3) the Well 13-21 facilities ("MWD Well 13-
21 Pipeline").
4
2.4 This Agreement is intended to provide for the abandonment, removal,
5
modification, upgrade, replacement, relocation and construction of certain MWD facilities and
6
properties to facilitate the Road Project.
7
2.5 Maricopa County desires a permanent right to cross the MWD Beardsley Canal
8
with its Road Project and MWD is willing to grant Maricopa County an easement to
9 accommodate such a crossing.
10 3. AGREEMENT.
11 Now, therefore, for and in consideration of the mutual covenants and agreements herein
12 contained, the Parties agree as follows:
13 4. DEFINITIONS.
14 MWD Facilities. Facilities owned, operated and maintained by MWD located
15 within the Road Project including, but not limited to: (1) "Existing MWD Facilities", which are
those facilities currently in existence and required to be modified or moved; and (2) "New MWD
16
Facilities", which include, but are not limited to, any modification, replacement or upgrades to
17
the Existing MVVD Facilities that are required to relocate the Existing MWD Facilities.
18
4.2 MWD Property Interests. Real property interests of MWD including, but not
19
limited to, fee simple title, easements and rights-of-way located within the Road Project.
20
5. REPRESENTATIONS.
21
With respect to the attached exhibits, Maricopa County represents to MWD that:
22 5.1 Exhibit "A" is a map and description of the Road Project.
23 5.2 Exhibit "B" is a map of the Road Project locating all Existing MVVD Facilities
24 and existing MWD Property Interests.
-2-
1 5.3 Exhibit "C" is a map of the Road Project and other documentation describing
2 the location of MWD Facilities and MWD Property Interests including, but not limited to, those:
3 (1) existing and unaffected by the Road Project; (2) to be abandoned, removed or modified in
place; and (3) to be upgraded, replaced, relocated or constructed and conveyed by Maricopa
4
County to MWD.
5
The submittals may be combined into one or more documents, provided all information
6
is supplied by Maricopa County for the Road Project.
7
6. MWD FACILITIES AND MWD PROPERTY INTERESTS.
8
6.1 Improvement Plans.
9
6.1.1 Maricopa County shall submit to MWD for review and written approval,
10 any improvement plans associated with the Road Project, including, but not limited to, any
11 paving plans, grading plans, drainage plans, traffic signal plans, utility plans and landscaping
12 plans ("Improvement Plans"). Maricopa County shall incorporate the MWD Facilities and
13 MWD Property Interests into the Improvement Plans.
14 6.2 Design Related to the MWD Lateral 13 and Well 13-21 Pipeline.
15 6.2.1 MWD's consultant (the "Consultant"), at Maricopa County's cost, will
16 design the New MWD Facilities related to the MWD Lateral 13 and Well 13-21 Pipeline.
6.2.2 MWD has prepared an estimate of cost, including an estimated design
schedule, for the: (a) preparation of the design for the New MWD Facilities related to the MWD
18
Lateral 13 and Well 13-21 Pipeline; (b) review and approval of the Maricopa County design of
19
the MWD Box Culvert; (c) construction observation and project close-out for all of the New
20
MWD Facilities; (d) preparation of the legal description and associated exhibits with the
21 Easements; and (e) MWD legal fees associated with this Agreement, which is attached hereto
22 as Exhibit "D" ("Cost Estimate"). Prior to MWD directing the Consultant to commence with
23 the design work, Maricopa County shall pay MWD the full amount of the costs estimated for the
24 design of the New MWD Facilities related to Lateral 13 and Well 13-21 Pipeline, as set forth in
-3-
I Exhibit "0". This payment shall serve as a draw fund to reimburse MWD for those costs that
2 are related to the design ("Design Draw"). The Consultant will invoice MWD for the actual
3 design costs as they occur and MWD will pay the Consultant. MWD will withdraw the
Consultant's design cost from the Design Draw to reimburse MWD for the payment of those
4
actual design costs. Upon completion of the design, MWD will withdraw from the Design Draw
an amount equal to the Consultant's final invoice for the design services and MWD's
6
administrative costs related to the preliminary and final design, and shall refund to Maricopa
7
County any unused amounts of the Design Draw. If the final costs exceed the Design Draw,
8
MVVD will invoice Maricopa County and Maricopa County shall pay MWD for any costs not
9 covered by the Design Draw. The creation of the draw fund and the withdrawals therefrom will
10 be strictly an accounting exercise. MWD is not required to segregate the Design Draw from its
•1 other funds,
12 6.2.3 Upon receipt of Maricopa County's Design Draw, MWD will authorize the
13 Consultant to begin preparation of the design related to the MWD Lateral 13 and Well 13-21
14 Pipeline.
6.2.4 MWD will provide Maricopa County with copies of the 60%, 90%, 100%
15
and final design plans related to the MWD Lateral 13 and Well 13-21 Pipeline as they are
16
developed and approved.
17
18 6.3 Design Related to the MWD Box Culvert.
19 6.3.1 Maricopa County, at Maricopa County's cost, will design the New MVVD
Facilities related to the MWD Box Culvert and the Roadway.
20
6.3.2 The design of the New MWD Facilities related to the MWD Box Culvert
21
and the Roadway is subject to MWD's written approval. Maricopa County will provide MWD
22
with copies of the 60%, 90%, 100% and the final design plans as they are developed, for
23
MWD's review and approval
24
-4-
2 6.4 Construction.
3 6.4.1 Once the design plans have been approved by MWD; Maricopa
4 County's Construction Observation Draw described in Section 6.5.1 has been received by
5 MWD; and the Easement conveyance document described in Section 6.7.4 herein has been
6 fully-executed by Maricopa County and delivered to MWD; and the Easement conveyance
document described in Section 6.7.5 herein has been fully-executed by MWD and delivered to
7
Maricopa County, MWD will issue Maricopa County a Notice to Proceed with construction. All
8
construction work shall be subject to all applicable MVVD specifications and MWD's review,
9 observation and written approval. Maricopa County, at Maricopa County's sole cost and
10 expense, shall perform the construction work for the New MWD Facilities.
11 6.4.2 The Construction Schedule as it relates to New MWD Facilities shall be
12 developed by Maricopa County and subject to MWD's written approval. Maricopa County shall
13 submit to MWD the initial Construction Schedule and any changes thereto. One week prior to
14 commencing construction of MWD Facilities, Maricopa County shall hold a Preconstruction
15 Meeting with Maricopa County's contractor, MWD and MWD's Consultant. Maricopa County
also shall contact the MWD Engineering Department at 623/546-8266 to provide a 72-hour
16
notice prior to commencing construction.
17
6.5 Construction Observation.
18
6.5.1 The Consultant will perform the construction observation of the New
19
MWD Facilities. The estimate of cost for the construction observation services is described in
20
the Cost Estimate attached hereto as Exhibit "D". Prior to MWD directing the Consultant to
21 commence with the construction observation services, Maricopa County shall pay MWD the full
22 amount of the costs estimated for the construction observation services related to the New
23 MWD Facilities, as set forth in Exhibit "D". This payment shall serve as a draw fund to
24 reimburse MWD for those costs that are related to the construction observation ("Construction
-5-
1 Observation Draw"). The Consultant will invoice MWD for the actual construction observation
2 costs as they occur and MWD will pay the Consultant, MWD will withdraw the Consultant's
3 construction observation costs from the Construction Observation Draw to reimburse MWD for
4 the payment of those actual construction observation costs, Upon completion of the project,
MWD will withdraw from the Construction Observation Draw an amount equal to the
Consultant's final invoice for construction observation services and MWD's administrative costs
6
related to the construction observation, and shall refund to Maricopa County any unused
7
amounts of the Construction Observation Draw, If the final costs exceed the Construction
Observation Draw, MWD will invoice Maricopa County and Maricopa County shall pay MWD for
9 any costs that are not covered by the Construction Observation Draw, The creation of the draw
10 fund and the withdrawals therefrom will be strictly an accounting exercise, MWD is not required
11 to segregate the Construction Observation Draw from other funds.
12 6.5.2 Upon completion of the construction and testing of the New MWD
13 Facilities, Maricopa County will contact MWD for a final walk through observation. Upon
14 completion of the final walk through observation, MWD will issue to Maricopa County a Notice of
15 Substantial Completion and Punch List that includes any minor items that still need to be
16 completed. Maricopa County shall notify MWD when the items on the initial punch list have
been completed. Upon completion of the items on the Punch List and MWD's approval of the
17
New MWD Facilities, MWD shall issue a written final acceptance ("Final Acceptance"). Upon
18
receipt of MWD's Final Acceptance, Maricopa County shall provide MWD with the following:
19
20 *As-Built Drawings for New MWD Facilities, including horizontal and vertical As-
Builts information for utility crossings of New MWD Facilities — One (1) Mylar Set
21 (24"x36"); two (2) copies of the Mylars (24"x36"); three (3) 11"x17"; and one (1)
CD of scans (pdf)
22 *Unconditional Lien Releases
*Property Description
23 *Construction Value
24
-6-
2 6.6 Conveyance of Facilities.
3 6.6.1 Upon completion and MVVD's Final Acceptance of the construction work,
4 MVVD shall prepare, and Maricopa County shall execute and deliver to MWD a Bill of Sale
5 conveying the New MVVD Facilities, together with a two-year warranty of merchantability. All
warranties shall commence upon the date of Final Acceptance.
6
6.7 Easements.
7
6.7.1 A portion of the New MWD Facilities will be placed outside of existing
8
MWD Property Interests. Maricopa County will cause the easement or easements, the
alignments of which are conceptually depicted on Exhibit "C", (the "Easement") to be
1 0 conveyed to MVVD. The Easement conveyance instrument shall be in substantially the form set
11 forth at Exhibit "E" attached hereto. At such time as the design for the New MVVD Facilities
12 reaches a 60% stage, a legal description and corresponding exhibit to delineate and describe
13 the Easement will be prepared by Maricopa County at Maricopa County's cost, and subject to
14 MWD's written approval.
15 6.7.2 Within 10 days prior to conveyance of the Easement to MVVD, Maricopa
16 County shall submit to MVVD a Preliminary Title Report, including Schedule A and Schedule B,
17 providing evidence that Maricopa County, or the entity conveying the Easement owns the
underlying fee title property to the Easement and confirming that the Easement is free of all
18
liens and encumbrances.
19
6.73 The new Easement shall provide MVVD a prior and superior right of
20 access to and use of MVVD Facilities to accomplish all of MVVD's purposes, including, but not
21 limited to, the transmission and distribution of water, power and communications to lands
22 located outside the Road Project.
23
24
-7-
6.7.4 Prior to the issuance by MWD of a Notice to Proceed with construction of
2 MWD Facilities, Maricopa County shall also deliver to MWD an appropriate, fully-executed
3 conveyance instrument, as prepared by MWD, for the MWD Easement.
6.7.5 MWD will convey to Maricopa County an easement for the Road Project to
4
5 cross over the Beardsley Canal ("Roadway Easement"), The Roadway Easement
conveyance instrument shall be in substantially the form set forth at Exhibit "F" attached
hereto. At such time as the Road Project design plans reach a 90% stage, Maricopa County, at
7
Maricopa County's cost and subject to MWD's written approval, will prepare the legal
8
description and corresponding exhibit to describe Maricopa County's Roadway Easement. Prior
9 to the issuance by MWD of a Notice to Proceed with construction of MWD Facilities, MWD shall
10 deliver to Maricopa County an appropriate, fully-executed conveyance instrument, as prepared
11 by MWD, for the Maricopa County Roadway Easement.
12 6.8 After Conveyance, After Maricopa County's conveyance to MWD of MWD
13 Facilities and MWD Property Interests, MWD shall be responsible for the operation and
14 maintenance of the MWD Facilities and MWD Property Interests and Maricopa County shall
15 have no further obligation or liability with respect to those MWD Facilities and MWD Property
16 Interests, except for the above-described warranties.
6.9 Limitations. Nothing in this Agreement shall be construed to require MWD to
17
abandon or remove any MWD Facilities or MWD Property Interests, or to accept MWD Facilities
18
and MWD Property Interests if, in MWD's sole determination, doing so will impair its
19
transmission and distribution of water, power and communications to MWD customers.
20
6.9.1 Maricopa County shall, at its cost, be responsible for the removal of the
21 Existing MWD Facilities no longer needed as a result of the New MWD Facilities.
22 6.9.2 Maricopa County shall not remove Existing MWD Facilities until after
23 MWD issues its written Final Acceptance of the New MWD Facilities. Upon receipt of MWD's
24 written Final Acceptance and prior to such removal, Maricopa County shall contact the MWD
-8-
1 Engineering Department at 623/546-8266 and provide a 72-hour notice. The schedule for
2 removal of Existing MWD Facilities shall be coordinated with and approved in writing by MVVD.
3 7. PRIOR AND SUPERIOR RIGHTS.
7.1 MVVD has the right to use all MWD Facilities and MIND Property Interests for all
4
5 MWD purposes. MWD shall at all times have a prior and superior right of access to and use of
MWD Facilities and MWD Property Interests to construct, reconstruct, operate, maintain and
6
replace MWD Facilities and MWD Property Interests.
7
8. CONSTRUCTION LIENS.
8
With respect to all work done by Maricopa County on the MWD Facilities, Maricopa
9 County is an independent contractor and not the agent of MWD. Maricopa County shall
10 indemnify, defend and hold MWD harmless for, from and against all damages, claims or
11 liabilities arising in favor of Maricopa County's employees, MWD employees or third persons on
12 account of personal injuries, death or damages to property in any way resulting from the willful
13 or negligent acts or omissions of Maricopa County, Maricopa County's agents, employees,
14 representatives, material suppliers, contractors or subcontractors, except for the willful or
15 negligent acts or omissions of MWD's agents or employees. Maricopa County shall pay off and
16 satisfy all valid claims for labor and material employed or used in any way by Maricopa County
in connection with the work performed and permit no liens of any kind to be fixed upon or
17
against the property of MWD by laborers, mechanics or materialmen, and Maricopa County
18
shall indemnify, defend and hold MWD harmless for, from and against all damages, claims or
19
liabilities arising out of such claims and liens.
20 9. NO TRANSFER, FORFEITURE OR ABANDONMENT OF RIGHTS.
21 This Agreement shall not effectuate a transfer of any rights of MIND, including, but not
22 limited to, water rights, to Maricopa County or to any other party, and Maricopa County shall not
23 use this Agreement in any way as the grounds or basis for making a claim of any kind to
24
-9-
1 transfer such rights. Nothing contained herein shall be interpreted as constituting any intent to
2 forfeit or abandon any water rights on the part of either Party hereto.
3 10. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and
4
5 their respective successors and assigns.
11. NOTICES.
6
Except as otherwise required by law, any notice given in connection with this Agreement
7
shall be in writing and shall be given by personal delivery, overnight courier service, telecopy or
8
United States certified or registered mail, return receipt requested, postage prepaid, addressed
9 to MWD or Maricopa County at the following addresses, or at such other addresses as MWD or
10 Maricopa County may designate in writing:
11 MWD: If Mailed: Maricopa Water District
P.O. Box 900
12 Waddell, AZ 85355-0900
Attention: Property & Contracts
13 Supervisor
14 If Delivered: Maricopa Water District
14825 W. Grand Avenue
Surprise, AZ 85374
15 Attention: Property & Contracts
Supervisor
16 If By Telecopy: Fax # (623) 584-2536
17 Maricopa County: If Mailed: Maricopa County
Department of Transportation
18 2901 W. Durango Street
Phoenix, AZ 85009
19 Attention: Utility Engineering Branch
If Delivered: Maricopa County
20 Department of Transportation
2901 W. Durango Street
21 Phoenix, AZ 85009
Attention: Utility Engineering Branch
22 If By Telecopy: Fax # (602) 506-7254
23 Notice shall be deemed to have been given on the date the notice is delivered if notice is given
24 by personal delivery or telecopy, on the date of delivery to the overnight courier service, if such
-10-
I a service is used, and on the date of deposit in the mail, if mailed. Notice shall be deemed to
2 have been received on the date the notice is actually received or delivery is refused.
3 12. WAIVER.
The waiver by any Party hereto of any right granted to it hereunder shall not be deemed
4
to be a waiver of any other right granted hereunder, nor shall the same be deemed to be a
5
waiver of a subsequent right by reason of the continuation of any matter previously waived.
6
13. ATTORNEYS' FEES.
7
If there is any litigation between MWD and Maricopa County to enforce or interpret any
8
provisions hereof or rights arising hereunder, the unsuccessful Party in such litigation, as
9 determined by the court, shall pay to the successful Party, as determined by the court, all costs
10 and expenses, including, but not limited to, reasonable attorneys' fees incurred by the
11 successful Party, such fees to be determined by the court sitting without a jury.
12 14. GOVERNING LAW.
13 This Agreement is executed and intended to be performed in the State of Arizona and
14 shall be construed and enforced in the courts of law of the State of Arizona.
15. ENTIRE AGREEMENT.
15
This Agreement sets forth the entire understanding of the Parties with respect to the
16
matters set forth herein as of the date hereof; it supersedes all prior oral or written agreements
17
of the Parties as to the matters set forth herein; and it cannot be altered or amended except
18
pursuant to an instrument in writing signed by MWD and Maricopa County.
19
16. COUNTERPARTS.
20 This Agreement may be executed in counterparts, each of which shall be deemed an
21 original, but all of which shall constitute one and the same instrument.
22 17. CONSTRUCTION.
23 This Agreement is the result of negotiations between the Parties, neither of whom has
24 acted under any duress or compulsion, whether legal, economic or otherwise. Accordingly, the
I terms and provisions hereof shall be construed in accordance with their usual and customary
2 meanings. MWD and Maricopa County hereby waive the application of any rule of law which
3 otherwise would be applicable in connection with the construction of this Agreement that
ambiguous or conflicting terms or provisions would be construed against the Party who
4
prepared the executed Agreement.
5
18. INTERPRETATION.
6
If there is any specific and direct conflict between, or any ambiguity resulting from, the
7
terms and provisions of this Agreement and the terms and provisions of any document,
8
instrument or other agreement executed in connection herewith or in furtherance hereof,
9 including any exhibits hereto, the same shall be consistently interpreted in such manner as to
10 give effect to the general purposes and intention as expressed in this Agreement, which shall be
11 deemed to prevail and control.
12 19. HEADINGS.
13 The headings in the Agreement are for reference only and shall not limit or define the
14 meaning of any provision of this Agreement.
20. RELATIONSHIP OF PARTIES.
15
Nothing herein contained shall be construed to create an association, joint venture, trust
16
or partnership among the Parties. Each Party shall be individually responsible for its own
17
representations, obligations and liabilities under this Agreement. All rights of the Parties are
18
several, not joint. No Party shall be under the control or direction of or shall be deemed to
19 control another Party. Except as expressly provided in this Agreement, no Party shall have the
20 right or power to bind another Party without its express written consent.
21 21. NO THIRD-PARTY BENEFICIARY.
22 No term or provision of this Agreement, or the exhibits hereto, is intended to be, nor shall
23 any such term or provision be construed to be, for the benefit of any person, firm, corporation or
24
-12-
I other entity not a Party hereto, and no other person, firm corporation or entity shall have any
2 right or cause of action hereunder.
3 22. SEVERABILITY.
4 If any provision of this Agreement or any portion of any provision of this Agreement is
finally adjudicated to be invalid, illegal or unenforceable, such invalidity, illegality or
5
unenforceability shall not alter the remaining portion of such provision, or any other provision
6
hereof, to the extent that the remaining provisions reasonably set forth the original intent of the
7
parties,
8
23, RECORDATION.
9
This Agreement shall be recorded with the Maricopa County Recorder.
10
11 24. AUTHORIZATION.
12 If this Agreement is executed by an individual on behalf of any legal entity, the
13 undersigned officer or representative of said entity represents and warrants that the entity has
14 the power and authority to enter into this Agreement, that the execution by him or her on behalf
of the entity has been duly authorized, and that the entering into this Agreement is in the best
15
interests of such entity.
16
17 26. EFFECTIVE DATE AND DURATION.
This Agreement is effective as of the execution date set forth below, and shall continue
18
in effect until the obligations of the parties hereunder are completed,
19
26. CANCELLATION.
20
Notice is hereby given of Maricopa County's right to cancel this Agreement pursuant to
21 A.R.S. § 38-511.
22
23
24
-13-
I IN WITNESS WHEREOF, the Parties have hereunto caused these presents to be
2 executed on the "2- - day of 1110-1--e---._— ( , 2017.
3 MARICOPA COUNTY MUNICIPAL WATER MARICOPA COUNTY, a political subdivision
CONSERVATION DISTRICT NUMBER ONE, of the State of Arizona
an irrigation and water conservation district, a
4 municipal corporation and a political
subdiv Aniof the State of rina
5 i
••I•
6 By:
`Qhfistine Cain
7 Its: Property & Contracts Supervisor Its: District Engineer
Oen-AAA-1
8
9 ATTEST:
10
By:
11 GWn Vortherms
Its: Assistant Secretary
12
13
14
15
16
17
18
19
20
21
22
23
24
-14-
1 ACKNOWLEDGEMENT
2 STATE OF ARIZONA
) ss:
3 County of Maricopa
On thisd° 1‘;1-day of -71'7a--r---e---/-" , 2017, before me, the undersigned Notary
4 Public, personally appeared Christine Cain and Glen Vortherms, known to me to be the
Property & Contracts Supervisor and Assistant Secretary of MARICOPA COUNTY
5 MUNICIPAL WATER CONSERVATION DISTRICT NUMBER ONE, an irrigation and water
conservation district, a municipal corporation and a political subdivision of the State of Arizona,
6 and they, being duly authorized so to do, executed the foregoing instrument for the purposes
therein contained.
7
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
8
9 NOTARY PUBLIC
My Commission Expires:
1 0
DEBRA L TRASANCOS
11 Notary Public - Arizona
(0eX-efri- /5; .2 O./ Maricopa County
Expires 10/15/2020
12
STATE OF ARIZONA
13 ) ss:
County of Maricopa
14
15 On this ri___day of %lei— , 2017, before me, the undersigned Notary
Public, personally appeared Jennifer Toth, known to me to be the Transportation Director of
16 MARICOPA COUNTY, a political subdivision of the State of Arizona, and he, being duly
authorized so to do, executed the foregoing instrument for the purposes therein contained.
17
IN WITNESS WHEREOF, I haye hereunto set my hand and official seal. MICHELLE MARKSON
Notary Public- State et Armors
18 My Cearnisalen MARIMPA F.xpeee COUNTY July 21, 2017
19 NOTARY PUBLIC
20 My Commission Expires:
21 7--(2F/1
22
23
24
-15-