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INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND THE CITY OF AVONDALE FOR IMPROVEMENTS TO: MC85 (BUCKEYE ROAD) FROM AGUA FRIA BRIDGE TO APPROXIMATELY 700 FEET EAST OF EL MIRAGE ROAD (MGN10) (C-64-17-______-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. authorizes the County to lay out, maintain, control and manage public roads within the County. 2. A.R.S. Sections 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. authorizes the City to lay out and establish, regulate and improve streets within the City and to enter into this Agreement. BACKGROUND 4. The County plans to complete sidewalk connections within the local sidewalk network by constructing an attached six (6) foot sidewalk, curb and gutter, and installing street lighting on the south side of MC85 (Buckeye Road) between the Agua Fria Bridge to approximately 700 feet east of El Mirage Road near the 121st Lane alignment in partnership with the City (Project). There is existing sidewalk at 7/6/17 Page 1 of 11 both Project limits that the Project will connect to. All new sidewalk and existing sidewalk ramps within the Project limits will be constructed to meet Americans with Disabilities Act (ADA) compliance requirements. MC85 has existing curb and gutter from the Agua Fria Bridge to 1,300 feet east. A drainage analysis will be conducted and documented to ensure there are no adverse impacts caused by the new construction associated with the Project. 5. The total length of the Project is approximately one-half (0.5) miles. The County owns and operates the roadway along the entire length of the Project. The frontage from the Agua Fria Bridge to approximately 225 feet west of El Mirage Road, approximately three-tenths (0.3) miles or sixty percent (60%) of the Project area is County jurisdiction. The remaining forty percent (40%) of the frontage of the Project area, approximately two-tenths (0.2) miles, is within City jurisdiction. 6. The design of the Project will be completed in Fiscal Year 2017 and construction is scheduled to be completed in Fiscal Year 2018. 7. The City has requested street lighting be added to the project and has agreed to bear the cost of installation, maintenance and operation. The County does not own and, therefore, is not responsible for public street lighting operation or maintenance. 8. The cost share between the County and City is based on ownership of the frontage and Project enhancements. The following details the breakdown of the cost share. Total Cost without Street Lights: $248,029 County Cost Share (60%): $177,618 City Cost Share (40%): $118,411 Street Lights: $ 44,800 Total County Cost Share: $177,618 Total City Cost Share: $163,211 Project Total: $340,829 9. County financial participation shall be limited to aspects of the Project that are essential for the establishment of a safe roadway. The County will not financially participate in Project enhancements such as landscaping, irrigation, street lighting, visual mitigation, decorative pavers, street furniture or any other items unless there is a benefit to the County that can be demonstrated by a benefit/cost analysis. 7/6/17 Page 2 of 11 PURPOSE OF THE AGREEMENT 10. The purpose of this Intergovernmental Agreement is to identify and define the responsibilities of Maricopa County and City of Avondale for various elements of the Project which include, but are not limited to, cost sharing, design, permitting, environmental clearances, right-of-way acquisitions, utilities, construction and construction management, street light operation and maintenance, 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 right-of-way acquisition within City jurisdiction. 11.2 The County shall design and construct the Project to County standards. 11.3 The County shall provide the City with copies of design plans for review and comment. 11.4 The County shall apply to the City for no-cost permits for any necessary Project related work performed within City jurisdiction. 11.5 The County shall issue no-cost traffic control permits to the City for any traffic control required as part of regular maintenance and operations activities of the street lights that will impact the roadway and/or traffic. 11.6 The County shall allow the City access for operation and maintenance of the street lights. 11.7 Based on jurisdictional ownership of the Project area, the County shall contribute sixty percent (60%) of the construction cost of the Project, currently estimated at $177,618 not including any City-requested enhancements as described in Paragraphs 7 and 8 of this Agreement. 11.8 Upon the notice to proceed for construction, the County shall invoice the City for fifty percent (50%) of the City’s total cost share contribution. The City’s total cost share contribution is currently estimated as $163,211, including forty percent (40%) of construction costs and all costs associated with construction and installation of street lights. 11.9 The County shall invite the City to participate in the final inspection of the Project. 7/6/17 Page 3 of 11 11.10 Upon completion and final acceptance of the Project, the County shall invoice the City for the remaining balance of the City’s cost share contribution. 11.11 Upon substantial completion of the Project, the County shall accept responsibility for all operation and maintenance for all sidewalks located in County right-of-way. 12. Responsibilities of City: 12.1 The City shall be responsible for all aspects of right-of-way acquisition for any right-of-way required for the Project currently within City jurisdiction. The City shall provide to the County a right-of-way clearance memorandum with supporting documentation for any new right-of-way acquired for the Project. 12.2 The City shall provide comments to the County within 10 working days of receipt of the design plans from the County. 12.3 The City shall issue no-cost permits to the County, for any necessary Project related work performed within City jurisdiction. 12.4 The City shall apply to the County for no-cost traffic control permits for any operation and maintenance activities of the street lights that will impact the roadway and/or traffic. 12.5 The City shall contribute forty percent (40%) of the construction cost of the Project plus any City-requested enhancements as described in Paragraphs 7 and 8 of this Agreement. The City’s total cost share contribution is currently estimated at $163,211. 12.6 The City shall remit payment within thirty (30) days of the receipt of each invoice from the County. 12.7 Upon substantial completion of the Project, the City shall accept responsibility for all operation and maintenance all sidewalks located within City jurisdiction. 12.8 The City shall assume all operation and maintenance responsibility and associated liability for any and all street lights installed under this Agreement. 7/6/17 Page 4 of 11 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 Party harmless, including any of the other Party’s 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 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. 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 7/6/17 Page 5 of 11 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) 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 West Durango Street Phoenix, Arizona 85009 City: City of Avondale Attn: City Manager 11465 West Civic Center Drive Avondale, Arizona 85323 7/6/17 Page 6 of 11 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. 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 Avondale 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. 7/6/17 Page 7 of 11 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 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. 7/6/17 Page 8 of 11 35. This Agreement shall be governed by the laws of the State of Arizona. 36. Unless otherwise lawfully 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 7/6/17 Page 9 of 11 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 7/6/17 Page 10 of 11 IN WITNESS WHEREOF, the Parties have executed this Agreement. MARICOPA COUNTY Recommended by: Jennifer Toth, P.E. Date Transportation Director Approved and Accepted by: Denny Barney, 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 7/6/17 Page 11 of 11