IGA.PDF

INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND
TOWN OF GILBERT FOR RIGHT-OF-WAY ASSISTANCE FOR RECKER ROAD
FROM RAY ROAD TO 2000 LINEAR FEET NORTH
C-64-19- -M-00
(TT0624)
This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a political
subdivision of the State of Arizona (County) and the Town of Gilbert, a municipal corporation
(Town). The County and Town are collectively referred to as the Parties or individually as a
Party.
STATUTORY AUTHORIZATION
A.R.S. Section 11-251 and Sections 28-6701 et seq. authorize the County to layout,
maintain, control and manage public roads within the County.
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.
A.R.S. Section 9-240 authorizes Town to layout and improve new streets, avenues and
alleys.
BACKGROUND
The Town is currently developing design plans to improve Recker Road from Ray Road
to 2000 linear feet north under the Town's CIP Project No. ST096 (Project).
5 The Project will be minor arterial and designed to Town standards.
6. Town will provide 100% of the funding for the improvements to the Project.
7 When completed, the Project will widen Recker Road to accommodate four (4) lanes
with a raised median. Other Project features include sidewalks, bike lanes, landscaping,
and street lighting.
8. Construction is anticipated to begin in fiscal year 2019.
-PURPOSE OF THE AGREEMENT
The purpose of this Agreement is to identify and define the responsibilities of the County
and Town for the Project, including cost sharing, design, construction, construction
management, rights-of-way acquisition, utility relocation, and annexation of the Project
and Project Area.

10. Responsibilities of the County:
10.1 The County shall issue no fee permits to Town for the Project and related work
conducted within the County's jurisdictional boundaries.
10.2 The County shall assist with the acquisition of right-of-way in fee and related
easements within the County's jurisdiction necessary for the Project, as
requested by 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, prosecute and perform all acts in the manner required by law to condemn
property 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
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.
10.3 The County shall provide Real Estate Support within a realistic timeframe as
determined by the accessibility of available agents and timely delivery of right-of
way requirements and related easements being provided by Town's design.
10.4 The County shall determine whether the method of compensation by Town for
the costs that is prescribed in Paragraphs 11.6.1 through 11.6.5 shall be direct
payment by Town to the County's vendor or shall be a reimbursement to the
County.
10.5 The County shall invoice Town on a monthly basis for any expenses that are not
subject to direct payment.
10.6 The County shall provide invoice notification that includes an itemization of
expenses being requested for payment.
10.7 At the time of Town's request pursuant to Paragraph 11.2.3, the County shall
assume all responsibility for the management of the acquisition described in
Section 10.2, 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 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.
10.8 The County shall consent to and approve the annexation by Town of all the
Project Area located within the unincorporated area of the County that is
improved as part of the Project, including, but not limited to, such additional
property needed for the Project as is acquired by the County for public roadway,
whether by purchase, condemnation or dedication.
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11. Responsibilities of the Town:
11.1 Town shall act as the lead agency for the Project.
11.2 Town shall conduct right-of-way related activities that include, but are not limited
to, the following:
11.2.1 Town shall identify required right-of-way, parcel numbers and property
owners.
11.2.2 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 Town's negotiations
result in the successful acquisition of all or a portion of the needed right
of-way, Town shall also be responsible for all escrow fees and related
costs. Town shall conduct all activities required pursuant to Section
11.2.2 in a timely manner in order for it to comply with the requirements
of Section 11.2.3.
11.2.3 If Town is unsuccessful in acquiring all required right-of-way from
property owners, Town shall, at least seven (7) months prior to 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 needed for the Project. Town
acknowledges that the County needs at least seven (7) months prior to
construction to begin condemnation proceedings due to statutory
requirements, time needed to complete necessary tasks and potential
staff constraints. The seven (7) month timeline is contingent on
adequate staffing for County Facilities Management Department's Real
Estate Division, Maricopa County Attorney's Office and by all
information provided by Town to the County being current and sufficient
to proceed on with acquisition/condemnation processing.
11.2.4 At the time of Town's request pursuant to Paragraph 11.2.3, Town shall
provide to the County recordable legal descriptions, maps, exhibits, title
reports, litigation guarantees, appraisals, copy of all correspondence
with the property and/or their representatives, and negotiator's report for
each of the parcels required by the County to complete right-of-way
acquisitions.
11.2.5 At the time of Town's request pursuant to Paragraph 11.2.3, Town shall
cease and desist all contact with the property owners, and shall convey
to the County all responsibility for the management of the necessary
right-of-way acquisitions or condemnation for the Project.
11.2.6 Town shall refer any and all escalation of questions and concerns with
the acquisition of the Project to the management of the County Facilities
Management Department's Real Estate Division.
11.2.7 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.
11.3 Town shall conduct utility coordination and relocation activities.
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11.4 Town shall manage the design and construction of the Project, and Town's
Engineer (or his/her designees) shall, within ten (10) days, provide written
comments to the County with regard to any proposed settlement or purchase of
property or property interests as contemplated by Paragraph 10.7.
11.5 Town shall be solely responsible for all costs and fees associated with the
Project, including but not limited to attorney's fees and costs.
11.6 Town shall pay directly to the County's vendor or reimburse the County as
determined pursuant to Paragraph 10.4 of the this Agreement for all expenses
incurred by the County for Real Estate Support, including, but not limited to:
11.6.1 Title Examinations and Reports
11.6.2 Property Appraisals
11.6.3 Cost of acquisition of property or easements, including escrow and
closing costs
11.6.4 Cost of condemnation proceedings if needed
11.6.5 All related attorney's fees and costs provided by Maricopa County
11.7 Notwithstanding the provisions of section 11, above, 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.
11.8 Notwithstanding the provisions of section 11.7 above, Town, at the County
discretion and pursuant to Paragraph 10.4, 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.
11.9 Town shall pay County for any expenses incurred after receiving an itemized
invoice related to the acts performed pursuant to this Agreement.
11.10 Town shall remit all authorized payments as identified in this Agreement within
thirty (30) days of the receipt of an invoice.
11.11 Upon issuance of the construction contract notice to proceed, Town shall assume
responsibility and liability for construction, operation, maintenance and other
aspects of the Project until annexation is complete.
11.12 Upon completion of the Project, Town shall assume all rights of ownership and
responsibility for operation and maintenance of the Project Area and shall
complete the annexation of the Project and Project Area within ninety (90) days
or such time as can legally be annexed.
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 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.
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By entering into this Agreement, each Party indemnifies the other against all liability,
losses and damages of any nature for or on account of any injuries or death of persons
or damages to or destruction of property arising out of or in any way connected with the
performance or nonperformance of this Agreement, except such injury or damage as
shall have been caused or contributed to by the negligence of that other Party. The
damages which are the subject of this indemnity shall include but not be limited to the
damages incurred by any Party, its departments, agencies, officers, employees, elected
officials or agents. In the event of an action, the damages which are the subject of this
indemnity shall include costs, expenses of litigation and reasonable attorney's fees.
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. Section 38-511.
15. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
acknowledge that:
15.1 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.
Section 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.
15.2 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.
15.3 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.
15.4 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. Each of the following shall constitute a material breach of this Agreement and an event
of default ("Default") hereunder: 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
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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.
18 All notices required under this agreement shall be given in writing and shall be sent to:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations
2901 W. Durango Street
Phoenix, Arizona85009
Town of Gilbert
Attn: Town Manager
50 E. Civic Center Drive
Gilbert, Arizona 85296
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 Town's 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
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Agreement. This Agreement shall be construed as a whole and in accordance with its
fair meaning and without regard to 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.
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. Faxed,
copied and scanned signatures are acceptable as original signatures.
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 or 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.
MARICOPA COUNTY
Recommended by:
1 /0 re/6
for Jen Toth, P _ Date
nsportation 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
TOWN OF GILBERT
Approved and Accepted by:
Attest by:
,c7
oWn Clerk Date
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 Parties by their
respective governing bodies under the laws of the State of Arizona.
a/7/Sf
Date
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