REPLACEMENT IGA TT345 AND TT511 - FINAL DRAFT 3.7.16.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND THE CITY OF TOLLESON
FOR IMPROVEMENTS TO MC85 (BUCKEYE ROAD)
FROM 107TH AVENUE TO 75TH AVENUE
(TT345 and TT511)
(C-64-___- __________ -M-__)
This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a
political subdivision of the State of Arizona (County), and the City of Tolleson, 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. MC85 (Buckeye Road) between 107th Avenue and 75th Avenue is currently an
existing county roadway that consists of two through lanes in each direction, a
striped center lane at intersections, and unimproved shoulders. The roadway
forms a boundary between the City of Phoenix, which lies to the south of MC85
and the City of Tolleson, which lies to the north of MC85. The City of Avondale
lies to the north and south of MC85 on the west side of 107th Avenue. The
project lies within Sections 7-11 and 14-20, Township 1 North, Range 1 East of
the Gila and Salt River Baseline and Meridian, Maricopa County, Arizona.
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5. The Parties previously entered into two Intergovernmental Agreements (IGAs)
under agenda item numbers C-64-08-162-2-00 and C-64-08-163-2-00 to improve
MC85 from 91st Avenue to 75th Avenue and from 107th Avenue to 91st Avenue,
respectively. Both IGAs were to improve MC85 to principal urban arterial
standards consisting of six lanes, a raised median, bike lanes, curb and gutter,
sidewalks, and a closed drainage system. The IGAs were recorded as Maricopa
County Recorder No. 2008-0367687 and Maricopa County Recorder No. 2008-
0367688 and both became effective on April 25, 2008, the date they were filed
with the Maricopa County Recorder. This agreement supersedes the previously
approved IGAs.
6. The current design plan is to widen MC85 to a five-lane section (two lanes in
each direction and a striped median) with turn lanes, raised medians and traffic
signals at the intersections, curb, gutter, bike lanes, sidewalks, street lighting,
utility relocations, and major cross-street improvements approximately one-
quarter mile north and south of MC85. Improvements will also include drainage
basins and railroad improvements at 107th Avenue. All of the elements provided
in this paragraph comprise the Project.
7. The County plans to complete the construction of the Project in two phases.
Phase One will include improvements on MC85 from approximately 500 feet
west of 95th Avenue to 75th Avenue. Phase Two will include improvements from
approximately 1,100 feet west of 107th Avenue (Jessie May Avenue) to 500 feet
west of 95th Avenue.
8. The Project will improve traffic flow and access for residents and businesses
along the corridor.
9. The County has constructed a separate Intelligent Transportation Systems (ITS)
project along MC85 to install fiber optics from the west end of the Agua Fria
Bridge to 75th Avenue. The Maricopa County Department of Transportation
(MCDOT) will coordinate the projects to ensure compatibility and optimum
performance.
10. The estimated total project cost to complete Phase One of the Project (MCDOT
Project # TT345) is $27.8 million. Right-of-way acquisition is programmed in
fiscal years 2016 and 2017. Utilities and construction are programmed in fiscal
years 2017, 2018, and 2019.
11. The estimated total project cost to complete Phase Two of the Project (MCDOT
Project # TT511) is $19.3 million. Design is programmed in fiscal years 2016 and
2017; right-of-way acquisition is programmed in fiscal year 2017; utility
relocations in fiscal years 2017 and 2018; and construction in fiscal years 2018
and 2019.
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12. The Parties will hold regularly scheduled operational meetings to discuss design
plans related to traffic signals and striping.
13. A separate agreement may be considered between the County and the City of
Tolleson’s Fire Department to address potential Emergency Vehicle Preemption
Equipment needs for the traffic signals.
PURPOSE OF THE AGREEMENT
14. The purpose of this Agreement is to identify and define the responsibilities of
each Party with respect to the Project, including, but not limited to, funding,
design, environmental clearance, right-of-way acquisition, utility relocation,
construction, construction management, and annexation.
TERMS OF THE AGREEMENT
15. Responsibilities of the County:
15.1 The County shall act as the lead agency for all aspects of work for each
phase of the Project, which shall include but not be limited to funding,
design, environmental clearance, right-of-way acquisition, utility relocation,
construction, and construction management.
15.2 The County shall be responsible for all costs associated with this Project.
15.3 The County shall apply to the City for no-cost permits for any necessary
Project related work performed within City jurisdiction.
16. Responsibilities of the City:
16.1 The City shall issue no-cost permits to the County, for any necessary
Project related work performed within the City.
16.2 The City shall authorize the County to purchase, and if necessary,
condemn required properties within the City, on behalf of the County for
the purpose of this Project.
16.3 Upon completion of the Project, the City shall be responsible for the
operation and maintenance of any retention basin, including dry wells,
built on the northwest corner of 83rd Avenue and MC85 as part of the
Project.
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GENERAL TERMS AND CONDITIONS
17. 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.
18. 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.
19. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
20. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and
further acknowledge that:
20.1 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
years, whichever is longer.
20.2 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.
20.3 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
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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.
20.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
21. 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.
22. 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.
23. 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 Tolleson
Attn: City Manager
9555 W. Van Buren Street
Tolleson, Arizona 85353
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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.
24. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
25. This Agreement does not create a duty or responsibility unless the intention to do
so is clearly and unambiguously stated in this Agreement.
26. 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.
27. 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 Tolleson 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.
28. 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.
29. 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.
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30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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.
38. The Parties hereby agree that the venue for any claim arising out of or in any
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way related to this Agreement shall be Maricopa County, Arizona.
39. This Agreement shall be governed by the laws of the State of Arizona.
40. 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
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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:
Clint L. Hickman, 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
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
CITY OF TOLLESON
Recommended by:
Reyes Medrano, Jr. Date
City Manager
Approved and Accepted by:
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 Parties by their respective governing bodies under the laws of the State of
Arizona.
City Attorney Date
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