FCD 99TH - SOUTHERN YARD USAGE FINAL IGA 1-10-17.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY
AND THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
FOR JOINT USAGE OF MCDOT 99TH AND SOUTHERN AVENUES
YARD
(County C-64-17-___-M-00;
District C-69-17-___-_-00, IGA No. 2016A018)
This Intergovernmental Agreement (Agreement) is between Maricopa County, a
political subdivision of the State of Arizona (County), and the Flood Control District of
Maricopa County, a political subdivision of the State of Arizona (District). The County
and District 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. Sections 11-951 et. seq. authorize public agencies to enter into
Intergovernmental Agreements for the provision of services, or for joint or
cooperative action.
3. A.R.S. Section 48-3603, as revised, authorizes the District to enter into this
Agreement and has authorized the undersigned to execute this Agreement on
behalf of the District.
BACKGROUND
4. The District requires a designated area in the southwestern portion of Maricopa
County for use by its Operations and Maintenance Division. Assessor Parcel
Number 101-38-010E, located at the northwest corner of 99th Avenue and
Southern Avenue and described on Exhibit A attached to this Agreement, is
owned by Maricopa County (Property) and meets the needs of the District. The
inactive well (no power) on this parcel will not be available for District use under
the terms of this Agreement.
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5. With regard to the District need described in Paragraph 4 of this Agreement, it is
in the best interests of the Parties to collaborate on space allocation on the
Property.
6. The County agrees to allow the District to use a portion of the Property, as
determined by the MCDOT Roadway Maintenance Division Manager. The
location on the Property may vary throughout the duration of this Agreement,
depending on the needs of each Party.
7. This Agreement shall become effective as of the date it is fully executed by the
Maricopa County Board of Supervisors and the Flood Control District of Maricopa
County Board of Directors. It shall remain in full force and effect until all
stipulations previously indicated have been satisfied, except that it may be
amended upon written Agreement by the Parties.
PURPOSE OF THE AGREEMENT
8. The purpose of this Agreement is to identify and define the responsibilities of the
County and District with respect to use of the Property, which includes, but are
not limited to the erecting of fencing, and overall site maintenance and access.
TERMS OF THE AGREEMENT
9. Responsibilities of the County:
9.1 The County’s Department of Transportation’s (MCDOT) Roadway
Maintenance Division Manager is responsible for the Property’s operation
and maintenance. All services and Property benefits provided to the
District under this Agreement shall be administered by MCDOT.
9.2 The County shall allocate a p o r t i o n of the Property to the District as
approved by the MCDOT Roadway Maintenance Division Manager.
9.3 The County shall be responsible for surface stabilization.
10. Responsibilities of the District:
10.1 The District shall occupy yard space within the Property, as prescribed
under this Agreement.
10.2 The District shall fence the entire Property and provide gates as needed
for access.
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10.3 The District shall not modify the Property without prior written consent of
the MCDOT Roadway Maintenance Division Manager.
10.4 The District shall not permit the use of its allocated space by others
without prior written consent of the MCDOT Roadway Maintenance
Division Manager.
10.5 The District shall ensure the Property complies with applicable regulations,
rules, laws, ordinances and statutes. At the time the Property is vacated
by the District, the District shall leave the Property in as near the same
condition that it was prior to the commencement of use of the Property by
the District, and shall remove all tools, equipment and other personal
property taken into, or placed upon, the Property by the District, with the
exception of the fence and gates placed at the Property by the District.
GENERAL TERMS AND CONDITIONS
11. 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 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.
12. Notwithstanding the provisions of Paragraph 7 of this Agreement, 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.
13. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
14. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and
further acknowledge that:
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14.1 Any contractor or subcontractor who is contracted by a Party to perform
work on the Property 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.
14.2 Any breach of this warranty shall be deemed a material breach of the
contract that is subject to penalties up to and including termination of the
contract.
14.3 The Parties retain the legal right to inspect the papers of any contractor or
subcontractor employee who works on the Property 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.
14.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
15. 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.
16. All notices required under this agreement to be given in writing shall be sent to:
County
(pertaining to Property usage details):
Maricopa County Department of Transportation
Attn: Roadway Maintenance Division Manager
2909 W. Durango Street
Phoenix, Arizona 85009
(pertaining to IGA concerns):
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch
2901 W. Durango Street
Phoenix, Arizona 85009
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District:
Chief Engineer and General Manager
2801 W. Durango Street
Phoenix, Arizona 85009
A copy of this IGA shall be mailed or delivered to:
Maricopa County Facilities Management Department
Real Estate Services
2801 W. Durango Street
Phoenix, Arizona 85009
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.
17. This Agreement is subject to the availability of funds by the District.
18. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
19. This Agreement does not create a duty or responsibility unless the intention to do
so is clearly and unambiguously stated in this Agreement.
20. This Agreement does not grant authority to control the subject Property, except
to the extent necessary to perform the tasks expressly undertaken pursuant to
this Agreement.
21. 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 Flood Control District of Maricopa County Board of
Directors 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.
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22. 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.
23. This Agreement, and all Exhibits attached to this Agreement, set forth all of the
covenants, promises, agreements, conditions and understandings as to the joint
usage of the Property between the Parties to this Agreement, and there are no
covenants, promises, agreements, conditions or understandings, either oral or
written, as to the joint usage of the Property 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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
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close of business on the first day thereafter which is not a Saturday, Sunday or
legal holiday.
29. 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.
30. 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.
31. 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.
32. 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.
33. This Agreement shall be governed by the laws of the State of Arizona.
34. The Parties to this Agreement have chosen attorneys employed by the Civil
Services Division of the Maricopa County Attorney’s Office (Civil Services
Division) to act as their attorney for the purpose of reviewing this Agreement. In
doing so, by their signature below, each Party acknowledges that it is aware that
the Civil Services Division will represent both parties to this Agreement, and
each Party expressly waives any conflict created thereby.
End of Agreement - Signature Pages Follow
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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:
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 County by its governing body 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.
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
Recommended by:
William D. Wiley, P.E. Date
Chief Engineer and General Manager
Approved and Accepted by:
Denny Barney, Chairman Date
Board of Directors
Attest by:
Clerk of the Board Date
APPROVAL OF FLOOD CONTROL DISTRICT GENERAL COUNSEL
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 District by its governing body under the laws of the State of Arizona.
District General Counsel Date
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