2016-09-26 TOWN OF GILBERT IGA - OCOTILLO SITE - REV 4.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN
THE TOWN OF GILBERT
AND
MARICOPA COUNTY
G-30193
C-70-17-XXX-3-00
(Gilbert Contract # 2017-1105-0453)
This Intergovernmental Agreement (“Agreement”) is made and entered into as of the ___ day of
___________________, 2016, by and between the TOWN OF GILBERT, an Arizona municipal
corporation (“Gilbert”) and MARICOPA COUNTY, a political subdivision of the State of
Arizona (“County”) (collectively the "Parties").
RECITALS:
1. Gilbert is authorized to execute this Agreement pursuant to A.R.S. § 11-951, et. seq, and
action taken by the Gilbert Town Council on ________________.
2. County is authorized to execute this Agreement pursuant to A.R.S. §11- 951, et. seq, and
by approval of the Board of Supervisors.
3. Gilbert owns vacant property situated at the northwest corner of Higley and Ocotillo
Roads in the Town of Gilbert identified as APN 304-70-007C (the “Town Property”).
4. Gilbert desires to make available to County a portion of the Town Property for
development and operation of a wireless communications facility in support of the
County’s public safety responsibilities and to support other government operations.
5. The Parties believe this Agreement will benefit the citizens of Maricopa County by
providing County with a strategically located wireless communications facility in the
southeast area of Maricopa County.
6. Gilbert desires to cooperate with County in the development of the wireless
communications facility on the Town Property and Gilbert desires to provide all utility
easements required as part of the development and operation of the wireless
communications facility on the Town Property.
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NOW, THEREFORE, in consideration of the foregoing, the mutual promises contained herein
and other good and valuable consideration, sufficiency and adequacy of which the Parties
acknowledge, Gilbert and County agree as follows:
1. GENERAL PROVISIONS
1.1 The foregoing recitals are incorporated into this Agreement.
1.2 DEFINITIONS: In addition to the defined and capitalized terms in this
Agreement, the following terms shall have the following meanings:
(a) “Premises”, as depicted in Exhibit “A” attached hereto and incorporated
herein by this reference, means that portion of Town Property at the
northwest corner of Higley Road and Ocotillo Road consisting of an area
with dimensions of approximately 56.7’ by 50.7’ and identified as
“Proposed Site” appearing on the ADW Communication Services, Inc.
plan labeled as sheet number LS-1 and which plan is entitled
“Topographic Survey” for the “Ocotillo” site and which plan was revised
May 7, 2016.
(b) “Access”, as depicted in Exhibit “B” attached hereto and incorporated by this
reference, means the ingress and egress access road to the Premises, the
staging area adjacent to the Premises and the turn-around area to the Premises
identified, in part, as the “Proposed 20’-0” Wide Gravel Access Road” and the
“40’-0” Staging Area” along with the unidentified 20’-0” wide turnaround
area appearing on the ADW Communication Services, Inc. plan labeled as
sheet number A-2.0 and which plan is entitled “Site Plan” for the “Ocotillo”
site and which plan was revised May 7, 2016.
1.3 PURPOSE: This Agreement is intended to set forth the respective agreements of
the Parties with respect to the use of the Premises.
1.3.1 County shall have exclusive use of the Premises. Gilbert shall have the
right, at Gilbert’s sole cost and expense, to co-locate wireless
communication equipment within, or on, County’s facilities at the
Premises provided Gilbert’s equipment is used solely for Gilbert’s
government purposes and provided space is available within, or on,
County’s facilities at the Premises which determination of available space
shall be at the sole discretion of County. The Parties agree that any co-
location of Gilbert’s equipment at County’s facility shall be under written
agreement(s) between the Parties.
1.3.2 County shall have non-exclusive use of the Access. In the event Gilbert
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makes available to other entities ingress and egress to the Town Property
via the Access during the term of this Agreement, Gilbert shall reimburse
County for a portion of the cost of creating the Access. Said cost
reimbursement by Gilbert to County shall be prorated based upon the total
number of entities Gilbert allows to ingress and egress the Town Property
via the Access. In addition, Gilbert shall reimburse County on an annual
basis the prorated share of the operation and maintenance cost for the
Access based upon the total number of entities Gilbert allows to ingress
and egress the Town Property via the Access during each calendar year.
2. CONSIDERATION AND TERM
2.1 Gilbert and County agree to the following:
2.1.1 Consideration for granting County use of the Premises and the Access
Road is $1.00, receipt of which is hereby acknowledged by the Parties.
2.1.2 The Agreement shall be effective on the date the Agreement is fully
executed (”Effective Date”). The term of the Agreement will expire on
December 31, 2036, unless terminated earlier as provided herein.
2.1.3 County may terminate this Agreement by giving written notice to Gilbert
at least 180-days prior to the desired termination date.
2.1.4 Gilbert shall provide, at no cost to County, a 12’ wide utility easement
(“Utility Easement”) in the general location as depicted in Exhibit “C”
which exhibit is attached hereto and made a part hereof.
3. MISCELLANEOUS PROVISIONS
3.1 This Agreement may not be changed, modified or rescinded, except as provided
herein and in writing and signed by the Parties hereto, and any attempt at oral
modification shall be void.
3.2 All notices required pursuant to this Agreement shall be delivered or sent certified
mail, return receipt requested, to:
COUNTY GILBERT
Maricopa County Town of Gilbert
Attention: Chief Real Estate Officer Attn: Town Manager
2801 W. Durango 50 E. Civic Center Drive
Phoenix, Arizona 85009 Gilbert, Arizona 85296
All notices are effective when delivered or on the date that certified mail return
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receipt is signed.
3.4 Pursuant to A.R.S. § 38-511, this Agreement may be cancelled without penalty or
further obligation within three years after execution of the Agreement if any
person significantly involved in initiating, negotiating, securing, drafting or
creating the contract on behalf of either Party is at any time while the Agreement
or any extension of the Agreement is in effect, an employee or agent of the other
Party to the contract in any capacity or is a consultant to any other party of the
contract with respect to the subject matter of the Agreement. Additionally,
pursuant to A.R.S. § 38-511 the aggrieved party may recoup any fee or
commission paid or due to any person significantly involved in initiating,
negotiating, securing, drafting or creating the Agreement on behalf of the
aggrieved party, from the other party arising as the result of the Agreement.
3.5 This Agreement, and any Exhibits attached hereto, represents the entire agreement
of the Parties with respect to its subject matter, and supersedes any and all other
agreements or understandings, whether written or oral, and whether previous to or
contemporaneous with execution hereof.
3.6 This Agreement shall be governed by the laws of the State of Arizona without
regard to Arizona's conflict of laws provision.
3.7 Any action or suit commenced in connection with this contract shall be in the
Superior Court of Arizona in and for the County of Maricopa.
3.8 The rights and remedies of the Parties provided in this Agreement are not
exclusive and are in addition to any other rights and remedies available to the
Parties in law or equity.
3.9 County shall make no site improvements to the Premises without advanced,
written approval by Gilbert. County will be totally responsible for any cost of
improvements or modifications to the Premises. Gilbert shall not unreasonably
withhold consent to make such improvements. Reasonably detailed plans and
specifications for such site improvements shall be submitted to Gilbert prior to
commencement of construction of any site improvements.
3.10 All uses of the Premises shall be in compliance with applicable laws and
regulations. County acknowledges that it shall not be the obligation of Gilbert to
insure the improvements made at the Premises by County and such improvements
shall remain the property of County. Gilbert understands and acknowledges that
County is self-insured and County is not required to purchase any insurance on
the Premises.
3.11. Indemnification:
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3.11.1 County shall indemnify and hold harmless Gilbert against and from any
and all claims arising from County’s use of the Premises, except injury or
damage occasioned solely by Gilbert’s negligence, and shall further
indemnify and hold harmless Gilbert from all costs, attorneys’ fees,
expenses and liabilities incurred in or about any such claim or any action
or proceeding brought thereon, and, in any case, action or proceeding
being brought against Gilbert by reason of any such claim, County upon
notice from Gilbert shall defend as same at County’s expense.
3.11.2 Gilbert shall indemnify and hold harmless County against and from any
and all claims arising from County’s use of the Premises, except injury or
damage occasioned solely by County’s negligence, and shall further
indemnify and hold harmless County from all costs, attorneys’ fees,
expenses and liabilities incurred in or about any such claim or any action
or proceeding brought thereon, and, in any case, action or proceeding
being brought against County by reason of any such claim, Gilbert upon
notice from County shall defend as same at Gilbert’s expense.
3.11.3 The indemnification obligations set in this Agreement shall also extend to
losses, damages, expenses liabilities and claims of any nature whatsoever
suffered by or asserted as a direct or indirect result of the disposal, escape,
seepage, leakage, spillage, discharge, emission, or release of any
Hazardous Material and losses, damages, expenses, liabilities and claims
asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act; the Toxic Substances Control Act; any
so-called “Superfund” or “Superlien” law; or any other federal, state, or
local statute, law, ordinance, code, rule, regulation, order, or decree
regulating, relating to, or imposing liability of standards of conduct
concerning any Hazardous Material, hereinafter, “environmental event.”
3.11.4 “Hazardous Material” shall mean and includes any petroleum product and
any hazardous substance or any pollutant or contaminant defined as such
in (or for purposes of) the Comprehensive Environmental Response,
Compensation, and Liability Act; any so-called “Superfund” or
“Superlien” law; the Toxic Substances Control Act; or any other federal,
state, or local statute, law, ordinance, code, or standards of conduct
concerning any hazardous, toxic, or dangerous waste, or any substance or
compound containing asbestos, PCBs or any other hazardous, toxic, or
dangerous waste, substance, or material.
3.11.5 The indemnification obligation specifically described in this Agreement is
limited to claims arising from County’s use of the Premises and does not
extend to environmental events that may have occurred prior to County’s
use and occupancy of the Premises or to environmental events that are the
result of actions or situations created by Gilbert, third parties, or acts of
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God.
3.12. Return of Premises: Subject to ordinary wear and tear, County will return the
Premises to Gilbert in good condition upon the termination or expiration of this
Agreement.
3.13. Destruction of Premises: Notwithstanding anything to the contrary herein, this
Agreement may be terminated by either party in the event of destruction of
County’s improvements to the Premises resulting from any cause. In the event of
partial destruction, County may elect to restore the Premises to its former
condition, in which case this Agreement shall not be terminated. If the County
cannot use the Premises for 30 days after partial destruction, this Agreement may
be immediately terminated at the sole discretion of County.
3.14 Entry by Gilbert: Gilbert reserves the right to enter the Premises in the event of
an emergency. Gilbert may also enter the Premises at any reasonable time to
inspect the Premises upon proper notice to County and shall schedule any such
entry to be in the company of County’s representatives or agents.
3.15 Assignment: County shall not assign this Agreement without the written consent
of Gilbert, which consent shall not be unreasonably withheld.
3.16 Entire Agreement: This Agreement, together with any supplemental provisions
attached hereto, constitutes the entire Agreement between the parties. Waiver or
any breach of any term, condition or covenant herein contained shall not be
deemed to be a waiver or any subsequent breach of any term, covenant or
condition herein. This Agreement shall be binding upon the parties hereto and
their respective heirs, successors and assignees.
******************************************************************************
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the _____ day of
_____________________, 2016.
TOWN OF GILBERT
______________________________ Date:_________________
Jenn Daniels
Mayor, Town of Gilbert
ATTEST:
______________________________ Date:_________________
Town Clerk
APPROVED AS TO FORM:
______________________________ Date:_________________
Town Attorney
MARICOPA COUNTY
______________________________ Date:_________________
Clint Hickman
Chairman, Board of Supervisors
ATTEST:
______________________________ Date:_________________
Clerk of the Board
APPROVED AS TO FORM:
______________________________ Date:_________________
Deputy County Attorney
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Exhibit “A”
PREMISES
(see attached “Topographic Survey”; sheet number LS-1; “Ocotillo” site; revised 5/7/16)
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Premises
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Exhibit “B”
ACCESS
(see attached “Site Plan”; sheet number A-2.0.; “Ocotillo” site; revised 5/7/16)
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Access
Access
Access
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Exhibit “C”
Utility Easement
(see attached “Site Plan”; sheet number A-2.0.; “Ocotillo” site; revised 5/7/16)
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Utility Easement
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