FINAL AVONDALETT0586ELMIRAGERDPIPES.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY
AND THE CITY OF AVONDALE
FOR IMPROVEMENTS TO: EL MIRAGE ROAD
FROM INDIAN SPRINGS ROAD TO SOUTHERN AVENUE
(TT0586)
(C-64-18-__________-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 Avondale, a
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. 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. Section 11-951 et. seq. authorizes 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 the City to lay out and
establish, regulate and improve streets within the City and to enter into this
Agreement.
BACKGROUND
4. El Mirage Road is operated and maintained by the City from Indian Springs Road
north approximately 700 feet. El Mirage Road is operated and maintained by the
County from approximately 700 feet north of Indian Springs Road to Southern
Avenue. There are several pipe crossings under El Mirage Road to facilitate
drainage. The current pipes are corrugated metal and are failing due to age.
5. Due to the failing nature of the pipes currently under El Mirage Road, the proposed
project is to replace the pipes with rubber gasket reinforced concrete pipe
(Project).
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6. The County and City are partnering on the Project to best utilize public resources
to replace all the failing pipes. The City will cost share on the Project to pay for the
labor and materials to replace the pipe within City jurisdiction. The estimate for the
City cost share is $332,500.
7. The County will not financially participate in Project enhancements, including but
not limited to landscaping, irrigation, street lighting, visual mitigation, decorative
pavers, street furniture and any other items inconsistent with the County’s
Roadway Design Manual, unless otherwise specifically identified in this
Agreement.
8. This Agreement does not alter any current annexations nor operation and
maintenance responsibilities for the replaced pipes.
PURPOSE OF THE AGREEMENT
9. The purpose of this Agreement is to identify and define the responsibilities of the
County and City for the Project, including but not limited to cost sharing, design,
permitting, environmental clearance, right-of-way acquisition, utility relocation,
construction and construction management, and annexation of the roadway.
TERMS OF THE AGREEMENT
10. Responsibilities of the County:
10.1 The County shall act as the lead agency for all aspects of the Project.
10.2 The County shall design and construct the Project to County standards.
10.3 The County shall be responsible for all Project costs except the labor and
material to replace the pipes within City jurisdiction, and any City-requested
enhancements, as described in Paragraph 7.
10.4 Upon the notice to proceed to order the materials, the County shall invoice
the City for the cost of the City’s pipes currently estimated at $81,900.
10.5 Upon substantial completion of the Project, the County shall invoice the City
for the remaining balance of the City’s total cost share contribution.
10.6 The County shall apply to the City for no-cost permits for any necessary
Project related work performed within City jurisdiction.
10.7 Upon substantial completion of construction of the Project, the County shall
retain all maintenance and operation responsibility for all components of the
Project within County jurisdiction.
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11. Responsibilities of the City:
11.1 The City shall be responsible for all actual costs for labor and material to
replace the pipes within City jurisdiction. The City’s cost share responsibility
is currently estimated at $332,500.
11.2 The City shall also be solely financially responsible for the cost of all Project
enhancements, as described in Paragraph 7, which have been requested
by the City.
11.3 The City shall remit payment within thirty (30) days of the receipt of each
invoice from the County.
11.4 The City shall issue no-cost permits to the County, for any necessary
Project related work performed within the City.
11.5 The City shall participate with the County in the substantial completion, final
inspection and acceptance of the Project.
11.6 Upon substantial completion of construction of the Project, the City shall
retain all maintenance and operation responsibility for all components of the
Project within City jurisdiction.
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. 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.
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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
(3) 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
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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.
18. All notices required under this agreement to be given in writing shall be sent to:
County:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch
2901 West Durango Street
Phoenix, Arizona 85009
City:
City of Avondale
Attn: City Manager
11465 West Civic Center Drive
Avondale, Arizona 85323
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.
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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 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.
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.
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
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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.
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 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.
35. Unless otherwise terminated by the Parties, this Agreement expires upon
completion and acceptance of the Project and fulfillment of all terms of the
Agreement.
End of Agreement - Signature Page Follows
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
CITY OF AVONDALE
Recommended by:
David Fitzhugh Date
City Manager
Approved and Accepted by:
Kenn Weise Date
Mayor
Attest by:
City Clerk Date
APPROVAL OF CITY ATTORNEY
In accordance with the requirements of Ariz. Rev. Stat. § 11 952(D), the undersigned
attorneys acknowledge that (i) they have reviewed the above Agreement on behalf of
their respective client and that (ii) as to their respective client only, each attorney has
determined that this Agreement is in proper form and is within the powers and authority
granted under the laws of the State of Arizona.
City Attorney Date
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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
In accordance with the requirements of Ariz. Rev. Stat. § 11 952(D), the undersigned
attorneys acknowledge that (i) they have reviewed the above Agreement on behalf of
their respective client and that (ii) as to their respective client only, each attorney has
determined that this Agreement is in proper form and is within the powers and authority
granted under the laws of the State of Arizona.
Deputy County Attorney Date
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