SURPRISE ENTENTE FINAL DRAFT 2.22.16.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND THE CITY OF SURPRISE
FOR THE EXCHANGE OF SERVICES (ENTENTE)
(C-64-13- _______ -M-00)
This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a
political subdivision of the State (County), and the City of Surprise, 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. §11-251 and §§28-6701 et seq. authorize the County to layout, maintain,
control and manage public roads within the County.
2. A.R.S. §§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. §§9-240 and §9-276 et seq. authorize the City to layout and establish,
regulate and improve streets within the City, and to enter into this Agreement.
DURATION
4. 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 for
five (5) years (Term). Any Party may terminate this Agreement for any reason
upon furnishing the other Party with a written notice at least thirty (30) days prior
to the effective termination date.
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BACKGROUND
5. The Parties desire to develop and implement a cooperative roadway
improvement program whereby routine or emergency roadway maintenance will
be implemented more efficiently (the Entente Program). The Entente Program
is designed to focus on the maintenance task needed and the availability of
resources. The Entente Program is a method of providing goods and services
to each Party by entering into temporary Letters of Agreement (the LOA or
LOAs). The Parties desire to authorize the County Transportation Director (or
designee) and the City Manager (or designee) to enter into separate LOAs for
each routine or emergency roadway maintenance project.
6. The Parties previously entered into an Intergovernmental Agreement (C-91-11-
036-M-00), recorded as Maricopa County Recorder No. 2011-0178783 (IGA) for
the Exchange of Services. The IGA was effective on September 15, 2010, the
date it was approved by the Maricopa County Board of Supervisors, and expired
on September 15, 2015.
PURPOSE OF THE AGREEMENT
7. The purpose of this Agreement is to establish procedures to authorize the County
Transportation Director (or designee) and the City Manager (or designee) to
enter into LOAs to exchange goods or services between each Party in order to
perform routine or emergency roadway maintenance services.
TERMS OF THE LOA
8. Each LOA will describe the routine or emergency roadway maintenance project
and the goods or services that are being exchanged between the Parties. If
applicable, the LOA will also state the amount of reimbursement owed to the
other Party if the value of goods or services exchanged is not of equal value;
provided, however, the total aggregate reimbursement that is in excess of the
value of the goods or services received for all LOAs entered into pursuant to this
Agreement shall not exceed $250,000 per fiscal year.
9. After the Parties enter into an LOA, if there are unexpected or unforeseen costs
that cause the value of the goods or services exchanged to become unequal or
add to the amount of reimbursement for that LOA, the Parties shall amend the
LOA, in writing; provided, however, that the additional reimbursement shall not
cause the total aggregate reimbursement for all LOAs to exceed $250,000 per
fiscal year.
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10. All routine or emergency roadway maintenance projects shall be performed in
accordance with “Uniform Standard Specifications for Public Works
Construction,” current edition/revisions as of the date of each LOA and the
“Uniform Standard Details for Public Works Construction,” current
edition/revisions as of the date of each LOA which are sponsored and distributed
by the Maricopa Association of Governments (MAG) and any amendments or
supplements adopted by the County and City, as applicable.
11. All routine or emergency roadway maintenance projects shall be performed with
existing resources. Nothing in this Agreement shall be construed as committing
the Parties to incur capital expenditures for equipment, facilities, or otherwise, or
to incur expenses not expressly set forth in this Agreement or an LOA.
12. Nothing in any LOA shall be interpreted to enlarge or expand the County's or the
City’s authority.
TERMS OF THE AGREEMENT
13. Responsibilities of the County:
13.1 The County Transportation Director (or designee) may select routine or
emergency roadway maintenance projects suitable for an LOA and enter
into LOAs with the City for the exchange of goods or services for roadway
maintenance projects. If the value of County provided goods or services
exchanged with the City is less than the value of goods and services
provided by the City, the County shall remit to the City the difference in
value, provided that the total aggregate reimbursement to the City for all
LOAs will not exceed $250,000 per fiscal year.
13.2 The County shall remit to the City any sums due to the City for its
contribution of goods and services the value of which exceed the value of
goods and services provided by the County, less any payments previously
remitted, within thirty (30) days of receipt of an itemized statement from
the City.
13.3 The County shall complete each routine or emergency roadway
maintenance project, such as those generally outlined in Exhibit A, which
is attached to this Agreement and incorporated into this Agreement by
reference, in accordance with the County’s procurement code and policies
and the “Uniform Standard Specifications for Public Works Construction,”
current edition/revisions as of the date of each LOA and the “Uniform
Standard Details for Public Works Construction,” current edition/revisions
as of the date of each LOA which are sponsored and distributed by MAG
and any amendments or supplements adopted by the County.
13.4 Prior to the end of every fiscal year of the County during the Term, the
County shall provide the City a statement of services performed by the
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County pursuant to an executed LOA (County Statement). The County
Statement shall also include an itemization of any and all costs owed to
the County by the City and an invoice for such costs. The County’s fiscal
year ends June 30th.
13.5 The County shall permit the City to inspect the routine or emergency
roadway maintenance projects undertaken by the County on behalf of the
City and pursuant to an LOA. If the City reasonably believes the project is
not being conducted by the County in conformance with the LOA, or the
City reasonably believes that that project has not been undertaken and
conducted in a good and workmanlike manner, the County shall correct or
re-perform it, as necessary, to the reasonable satisfaction of the City.
14. Responsibilities of the City:
14.1 The City Manager (or designee) may select routine or emergency roadway
maintenance projects suitable for an LOA and to enter into LOAs with the
County for the exchange of goods and services for roadway maintenance
projects. If the value of City provided goods or services exchanged with
the County is less than the value of goods and services provided by the
County, the City shall remit to the County the difference in value, provided
that the total aggregate reimbursement to the County for all LOAs will not
exceed $250,000 per fiscal year.
14.2 The City shall remit to the County any sums due to the County for its
contribution of goods and services the value of which exceed the value of
goods and services provided by the City, less any payments previously
remitted, within thirty (30) days of receipt of an itemized statement from
the County.
14.3 The City shall complete each routine or emergency roadway maintenance
project, such as those generally outlined in Exhibit A, in accordance with
the City’s procurement code and policies and the Uniform Standard
Specifications for Public Works Construction,” current edition/revisions as
of the date of each LOA and the “Uniform Standard Details for Public
Works Construction,” current edition/revisions as of the date of each LOA
which are sponsored and distributed by MAG and any amendments or
supplements adopted by the City.
14.4 Prior to the end of every fiscal year of the County during the Term, the City
shall provide the County a statement of services performed by the City
pursuant to an executed LOA (City Statement). The City Statement shall
also include an itemization of any and all costs owed to the City by the
County and an invoice for such costs. The County’s fiscal year ends
June 30th.
14.5 The City shall permit the County to inspect the routine or emergency
roadway maintenance projects undertaken by the City on behalf of the
County and pursuant to an LOA. If the County reasonably believes the
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project is not being conducted by the City in conformance with the LOA, or
the County reasonably believes that that project has not been undertaken
and conducted in a good and workmanlike manner, the City shall correct
or re-perform it, as necessary, to the reasonable satisfaction of the
County.
15. Each Party will maintain a record of the goods and services exchanged over the
life of the Agreement. For the purposes of calculating the $250,000 fiscal year
limit, the total aggregate reimbursement made by one Party to the other Party will
not be offset by the value of the goods or services received.
MANNER OF FINANCING
16. The County and the City shall budget, finance and bear the expense of each
LOA separately. The County Transportation Director (or designee) and the City
Manager (or designee) shall ensure that sufficient financing is available prior to
entering into an LOA.
GENERAL TERMS AND CONDITIONS
17. By entering into this Agreement, the Parties agree that to the extent permitted by
law, each Party will defend, indemnify 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.
18. This Agreement shall be subject to the provisions of A.R.S. § 38-511.
19. The Parties warrant that they are in compliance with A.R.S. § 41-4401 and
further acknowledge that:
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19.1 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. § 23-214(A), and shall keep a record of the
verification for the duration of the employee’s employment or at least
three years, whichever is longer.
19.2 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.
19.3 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.
19.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
20. Each Party to this Agreement warrants that it is not suspended or disbarred by
any federal agency which has provided funding that will be used in a project
described in this Agreement and each Party warrants that, as to any contractor or
vendor under contract with such Party, it will use reasonable efforts to ensure
that such contractor or vendor under contract with such Party to provide goods or
services towards the accomplishment of the objectives of this Agreement is not
suspended or debarred by any federal agency which has provided funding that
will be used in a project described in this Agreement.
21. 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
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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.
22. All notices required under this agreement to be given in writing shall be sent to:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch Manager
2901 West Durango Street
Phoenix, Arizona 85009
City of Surprise
Attn: City Manager
16000 North Civic Center Plaza
Surprise, Arizona 85374
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 seventy-two (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 twenty-four (24) hours
after delivery of the notice to the Postal Service or courier.
23. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
24. This Agreement does not create a duty or responsibility unless the intention to do
so is clearly and unambiguously stated in this Agreement.
25. 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.
26. 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
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may be terminated by any Party at the end of any fiscal year due to
non-appropriation of funds.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
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33. 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.
34. 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.
35. 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.
36. 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.
37. Unless otherwise lawfully terminated or extended by the Parties, this Agreement
expires upon expiration of the Term.
38. An employee of either Party shall be deemed to be an “employee” of both public
agencies while performing pursuant to this Agreement solely for purposes of
A.R.S. § 23-1022 and the Arizona Workers’ Compensation laws. The primary
employer shall be solely liable for any workers’ compensation benefits, which
may accrue. Each Party shall post a notice pursuant to the provisions of A.R.S.
§ 23-1022 in substantially the following form:
“All employees are hereby further notified that they may be
required to work under the jurisdiction or control or within the
jurisdictional boundaries of another public agency pursuant
to an intergovernmental agreement or contract, and under
such circumstances they are deemed by the laws of Arizona
to be employees of both public agencies for the purposes of
worker’s compensation.”
39. The Parties do not anticipate having to dispose of any property upon partial or
complete termination of this Agreement. However, to the extent that such
disposition is necessary, property shall be returned to its original owner.
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40. 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.
41. 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.
MARICOPA COUNTY CITY OF SURPRISE
Recommended by: Recommended by:
_______________________________ _______________________________
Jennifer Toth, P.E. Date Bob Wingenroth Date
Transportation Director City Manager
Approved and Accepted by: Approved and Accepted by:
_______________________________ _______________________________
Clint L. Hickman, Chairman Date Sharon Wolcott Date
Board of Supervisors Mayor
Attest by: Attest by:
_______________________________ _______________________________
Clerk of the Board Date City Clerk Date
APPROVAL OF DEPUTY COUNTY ATTORNEY AND 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 Parties by their respective governing bodies under the laws of the State of
Arizona.
_______________________________ _______________________________
Deputy County Attorney Date City Attorney Date
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EXHIBIT A
Road-related Tasks:
a. Grading
b. Sweeping
c. Surface Treatment/Seal Coats
d. Signage
e. Striping
f. Debris Removal
g. Material Hauling
h. Fence Repair
i. Storm Drain/Culvert Repair
j. Barricading
k. Pothole Repair
l. Signal Maintenance
m. Equipment Exchange
n. Concrete Repair
o. Bridge Repairs
p. Storm Repairs
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