TT0588 GLENDALE ALSUP AVE FINAL.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY
AND THE CITY OF GLENDALE
FOR IMPROVEMENTS TO: ALSUP AVENUE
FROM BETHANY HOME ROAD TO CLAREMONT STREET
TT0588
(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 Glendale, 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. Bethany Home Road and Alsup Avenue west of Luke Air Force Base are paved
roadways that lie within both incorporated City of Glendale and unincorporated
Maricopa County. The portion of Alsup Avenue that runs north-south and extends
approximately 820 feet south of the Claremont Street alignment is half in Maricopa
County (west half) and half in the City of Glendale (east half). The roadway then
turns southwest for approximately 700 feet to meet Bethany Home Road and is
entirely within the City’s annexed area. The portion of Bethany Home Road that
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runs west of the Alsup Avenue intersection with Bethany Home Road for 350 feet
is half in Maricopa County (north half) and half in the City (south half). The roadway
is bordered on the southeast by incorporated City of Glendale and on the northwest
by unincorporated Maricopa County. The current roadway has one travel lane in
each direction with an Adaman Water irrigation ditch crossing under the roadway
in two places, at its intersection with Bethany Home Road and at an area
approximately 700 feet northeast of Alsup Avenue’s intersection with Bethany
Home Road.
5. Bethany Home Road and Alsup Avenue, currently within Maricopa County, are
operated and maintained by Maricopa County. Alsup Avenue and Bethany Home
Road within the City are not currently maintained by Maricopa County. Under this
Agreement, the County will assume maintenance responsibility for these sections
of Alsup Avenue and Bethany Home Road, more particularly described in Exhibit
A attached hereto and made a part hereof by this reference (the Maintenance
Segment), not currently maintained by the County fostering an effective use of
County resources and smooth operation and maintenance of County roads.
6. Alsup Avenue was a dirt road that was realigned and paved by the County in the
1970s. There is no record of right-of-way nor a roadway easement for the roadway.
In 1995, the City annexed Luke Air Force Base, including the portions of Bethany
Home Road and Alsup Avenue located on Luke Air Force Base from approximately
375 feet west of Alsup Avenue to Claremont Street.
7. On June 6, 2017, an irrigation pipe culvert failure caused a portion of Alsup Avenue
approximately 650 feet north of Bethany Home Road to collapse. The proposed
project is to repair the roadway failure on Alsup Avenue (Project).
8. The County, City, and Luke Air Force Base are working together to repair the
damage to Alsup Avenue through the following steps:
8.1 Luke Air Force Base and the County will process a roadway
easement granting the County permission for the roadway in its
current alignment on United States government property.
8.2 The County will open and declare the Maintenance Segment, as
specified in Exhibit A of this Agreement, and then proceed with
repairing the damage on Alsup Avenue.
8.3 The City will annex an area described as all County-owned right-of-
way on 99th Avenue from Camelback Road to Bethany Home Road
except those portions the City of Phoenix agrees to annex through a
separate agreement with the City of Glendale.
9. The Maintenance Segment is intended to include all area necessary for roadway
operation and maintenance purposes on the described portions of Bethany Home
Road and Alsup Avenue.
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PURPOSE OF THE AGREEMENT
10. 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
11. Responsibilities of the County:
11.1 The County shall act as the lead agency for all aspects of the Project, except
the annexation process. The annexation process will be led by the City. The
County will work with Luke Air Force Base to complete the easement
process.
11.2 The County shall design and construct the Project to County standards.
11.3 The County shall be responsible for the total cost of the Project.
11.4 The County shall cooperate with the City and Luke Air Force Base to
complete the annexation and easement processes.
11.5 The County shall review and provide comments on draft annexation legal
descriptions and any associated exhibits.
11.6 The County shall apply to the City for no-cost permits for any necessary
Project related work performed within City jurisdiction.
11.7 The County shall send draft legal descriptions of the Maintenance Segment
to the City for review and comment.
11.8 Upon completion of the Project, the County will continue to operate and
maintain all roadways that are currently operated and maintained by the
County, as described in Paragraph 5.
11.9 Upon completion of the Project, the County will operate and maintain all
roadways described in Paragraph 5 that are not part of the County roadway
system, including the Maintenance Segment.
12. Responsibilities of the City:
12.1 The City shall be the lead agency for the annexation process. The City shall
begin the annexation process for the area set forth in Paragraph 8.3 above
within one hundred and twenty (120) days of execution of this Agreement
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subject to the requirements of A.R.S. Section 9-471.
12.2 The City shall send draft legal descriptions of the annexation area to the
County for review and comment.
12.3 The City shall notify the County, in writing, within ten (10) days of completion
of the annexation processes, or of any act or event making it not legally
possible to proceed with the annexation process.
12.4 Should the annexation be terminated pursuant to Paragraph 12.3 of this
section, the City shall be responsible for the operation and maintenance of
the annexation area set forth in Paragraph 8.3 above.
12.5 The City is responsible for negotiating and entering into any agreements
with the City of Phoenix for any part of the annexation area, as provided in
Paragraph 8.3, the City does not want to annex. In part, the purpose of this
Agreement is to remove all County ownership and maintenance
responsibility for the entire annexation area provided in Paragraph 8.3
above.
12.6 The City shall issue no-cost permits to the County, for any necessary
Project related work performed within the City.
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 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.
14. This Agreement shall become effective as of the date it is approved by the
Maricopa County Board of Supervisors and the Glendale City Council and remain
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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. Section 38-511.
16. The Parties warrant that they are in compliance with A.R.S. Section 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. 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.
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. 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)
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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.
19. 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 W. Durango Street
Phoenix, Arizona 85009
City:
City of Glendale
Attn: Transportation Director
6210 West Myrtle Avenue
Suite 111
Glendale, Arizona 85301
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.
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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 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 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
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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. Faxed, copied and scanned signatures are acceptable as original
signatures.
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.
CITY OF GLENDALE
Recommended by:
Kevin R. Phelps Date
City Manager
Approved and Accepted by:
Jerry P. Weiers Date
Mayor
Attest by:
City Clerk Date
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 City by the respective governing bodies 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
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 the Maricopa County Board of Supervisors under the laws of the State
of Arizona.
Deputy County Attorney Date
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