IGA WITH CITY OF PHOENIX FOR MC85 3-1-2016.PDF

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INTERGOVERNMENTAL AGREEMENT BETWEEN
MARICOPA COUNTY AND THE CITY OF PHOENIX
FOR IMPROVEMENTS TO MC85 (BUCKEYE ROAD)
FROM 107™ AVENUE TO 75™ AVENUE
(TT345 and TT511)
(C-64-16-____-M-00)
This [Intergovernmental Agreement (“Agreement”) is between the County of
Maricopa, a political subdivision of the State of Arizona (the “County”), and the City
of Phoenix, a municipal corporation (the “City”). The County and the City are
collectively referred to as the Parties or individually as a Party.
STATUTORY AUTHORIZATION
A.R.S. §§11-251 and 28-6701, ef seq., authorize the County to lay out, maintain,
control and manage public roads within its respective County, to acquire and
condemn property necessary for such purposes, and to enter into this
Agreement.
A.R.S. §11-951, ef seq., provides that public agencies may enter into
Intergovernmental Agreements for the provision of services or for joint or
cooperative action.
A.R.S. §§9-240 and 9-276, ef seq., authorize the City to lay out and establish,
regulate and improve streets within the City and to enter into this Agreement.
BACKGROUND
MC85 (Buckeye Road) between 107" Avenue and 75" 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 107" 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.
The Parties previously entered into an Intergovernmenta!l Agreement (IGA) under
agenda item number C-91-10-195-M-00 to improve MC85 from 107'" Avenue to
75" Avenue to the City’s principal urban arterial standards consisting of six lanes,
a raised median, bike lanes, curb and gutter, sidewalks and a closed drainage
system. The IGA was recorded as Maricopa County Recorder No. 20100615030
and became effective on July 13, 2010, the date it was approved by the Maricopa
County Board of Supervisors. This Agreement supersedes the previously
approved IGA.

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 107'" Avenue. All of the elements provided
in this paragraph comprise the “Project”.
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 95'" Avenue to 75" Avenue. Phase Two will include improvements from
approximately 1,100 feet west of 107'" Avenue (Jessie May Avenue) to 500 feet
west of 95" Avenue.
The Project will improve traffic flow and access for residents and businesses
along the corridor.
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 75" 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 for 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 is
programmed in fiscal years 2017, 2018 and 2019.
11. The estimated total project cost to complete for 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.
12. The Parties will hold regularly scheduled operational meetings to discuss design
plans related to traffic signals and striping.
13. A separate agreement will be drafted with the City of Phoenix's Fire Department
to address Emergency Vehicle Preemption Equipment needs for the traffic
signals.
14. The City of Phoenix’s Fire Department shall provide Emergency Vehicle
Preemption Equipment and be solely responsible for the costs associated with
the installation of the Emergency Vehicle Preemption Equipment on the County's
traffic signals.

PURPOSE OF THE AGREEMENT
15. The purpose of this Agreement is to identify the roles and responsibilities of each
Party with respect fo the Project, including, but not limited to, finances, design,
environmental clearance, right-of-way acquisition, utility relocation, construction,
construction management and annexation.
TERMS OF THE AGREEMENT
16. Responsibilities of the County:
16.1 The County shall act as lead agency on all elements of work for each
phase of the Project, which shall include but not be limited to finances,
design, environmental clearance, right-of-way acquisition, utility relocation,
construction and construction management.
16.2 The County shali be responsible for all costs of the Project except for
signing and permanent striping.
16.3 The County shall apply for no-cost permits from the City for each phase of
the Project, as applicable, for any Project work that lies within the City’s
boundaries, except for work applicable to City water or sewer
infrastructure.
16.4 The County shall provide the City with plans for each phase of the Project
for review and comment.
16.5 The County shall construct each phase of the Project to City standards in
compliance with the approved plans and specifications, except that the
traffic signals and drainage basins shall be designed and constructed to
County specifications.
16.6 The County shall own, operate and maintain all traffic signals and signage
associated with traffic signals, ITS telecommunication and electronic
infrastructure within the Project area of each phase of the Project.
16.7 The County shall own, operate and maintain all signs and components
that are installed on County traffic signals which shall be designed to
County standards.
16.8 The County shail be responsible prior to and after annexation for
maintenance of all drainage basins for each phase of the Project;
including weeds, debris, erosion control, etc. until such time as
development occurs and the developer assumes that responsibility.
16.9 The County shall schedule and invite the City to a substantial completion
inspection of each phase of the Project.
16.10 The County shall schedule and invite the City to a final inspection of each
phase of the Project.

17. Responsibilities of the City:
17.1 The City shall provide no-cost permits to the County for each phase of the
Project, as applicable, for any Project work that lies within the City’s
boundaries, except for work applicable to City water or sewer
infrastructure.
17.2 The City shall provide a timely review of all plans for the Project, as
provided by the County. The City shall provide comments to the County
within ten (10) calendar days upon receipt of documents.
17.3 The City shall coordinate adjacent development plans in the Project area
with the County prior to approval of the plans. Where possible, this shall
include requiring the Developer to:
17.3.1 Dedicate half-street Right-of-Way and necessary easements
17.3.2 Coordinate/relocate all utilities
17.3.3 Construct half-street improvements. The option to provide funds in
escrow to MCDOT is acceptable
17.3.4 Retain drainage (including half-street drainage) per “Maricopa
County Drainage Policies and Standards for Maricopa County,
Arizona,” Policy 3.11.1 Storm Water Retention for Developments
and Standard 6.10.2 Minimum Design Storm - “All new
developments, regardless of lot size, shall make provisions to retain
the storm water runoff from a 100-year, 2-hour duration storm
falling within its boundaries” (boundaries include the half-street)
17.4 The City shall participate in the substantial completion inspection of each
phase of the Project, and provide concurrence with the County that the
project intent has been met, leaving only punch list items to be completed
by the contractor.
17.5 Upon substantial completion of each phase of the Project, the City shall
accept all maintenance and operation responsibility of each phase of the
Project, excluding traffic signals, drainage basins, ITS communication and
electronic infrastructure.
17.6 Upon substantial completion of each phase of the Project, the City shall
begin annexation of all the unincorporated areas within each phase of the
Project limits and complete the annexations within a six month period
subject to the requirements of A.R.S. § 9-471.
17.7 The City shall be responsible for signing and striping the roadway for each
phase of the Project which shall be designed to the City’s standards. This
does not include the temporary signing and striping that will be performed
by the contractor during construction. The cost of signing and striping
performed by the City shall be the responsibility of the City.

17.8 The City shall sign and stripe the roadway for each phase of the Project
and shall maintain the roadway as per the approved signing and striping
plan unless a modified plan is approved by both the County and the City.
17.9 The City shall participate in the final inspection of each phase of the
Project with the County.
GENERAL TERMS AND CONDITIONS
18. 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 ail loss, expense, damage or claim of any
nature whatsoever which is caused by any activity, condition or event arising out
of the 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 (including but not limited to vicarious
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 that is occasioned 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.
19. 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.
20. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
21. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and
further acknowledge that:
21.1. 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 the E-Verify program under 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.
21.2 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.

21.3. 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 to
require that the contractor make all papers and employment records of
said employee available during normal working hours in order to facilitate
such an inspection.
21.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
22. 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.
23. 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
continues 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 compietion, 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 the circumstances to cure the default. In the event a Defaulting
Party fails to perform any of its material obligations under this Agreement and is in
Default, 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.
24. All notices required under this Agreement to be given in writing shall be sent to:
Maricopa County Department of Transportation
Intergovernmental Relations
2901 West Durango Street
Phoenix, Arizona 85009
City of Phoenix
Plan Review Coordinator, Street Transportation
200 West Washington Street, 5" Floor
Phoenix, Arizona 85003
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, shail 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.
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 Phoenix 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.
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 covenanis, 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.
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 alf 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 fo fulfill the covenants and
obligations to be performed by such party pursuant to this Agreement.
37. 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.
38. This Agreement shall be governed by the laws of the State of Arizona.
39. 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

IN WITNESS WHEREOF, the Parties have executed this Agreement.
MARICOPA COUNTY CITY OF PHOENIX
Recommended by:
2°
cK Ge’ / a x
5; 02] oslzole
a 2
Jennifer Toth, P-E-—— ' Date =
om
T¢ansportation Director &
<i
Approved and Accepted by: Approved and Accepted by: a ae)
HOE)
wyh
Clint Hickman, Chairman Dovalina, JA/P.E. “ % Date
~ Ae ‘Ray
Board of Supervisors Transportation Director
Attest by: by:
Fran McCarroll Date Cris Meyer ( Date
Clerk of the Board City Clerk
APPROVAL OF DEPUTY COUNTY ATTORNEY
AND ATTORNEY FOR THE CITY OF PHOENIX
| hereby state that | 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.
Ol ua 21244
Deputy County Attorney Date Acting City Attorney ~~” Date

ORDINANCE S-42095
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH
MARICOPA COUNTY DEPARTMENT OF TRANSPORTATION
FOR THE DESIGN AND CONSTRUCTION OF BUCKEYE ROAD
BETWEEN 107° AVENUE AND 75'4 AVENUE; AND GRANTING
AN EXCEPTION TO PCC § 42-18 TO INCLUDE
INDEMNIFICATION AND ASSUMPTION OF _ LIABILITY
PROVISIONS IN THE AGREEMENT.
THE
BE IT ORDAINED BY COUNCIL OF THE CITY OF PHOENIX as
follows:
SECTION 1. The City Manager, or his designee, is authorized to enter
into an intergovernmental agreement with the Maricopa County Department of
Transportation (MCDOT) for the design and construction of Buckeye Road between
107" Avenue and 75" Avenue.
SECTION 2. The City Council authorizes an exception, pursuant to
of
Phoenix City Code Section 42-20, to include indemnification and assumption liability
provisions in the IGA that would otherwise be prohibited by Phoenix City Code Section
42-18(A) and (B).

The City and MCDOT agree to save and hold harmless, defend and
indemnify each other from claims resulting from either’s negligent or wrongful acts or
omissions.
PASSED by the Council of the City of Phoenix this 21st day of October,
2015.
ATTEST:
Ce Mager City Clerk
APPROV FORM:
iv,
*
Acting City
vv Atorapk
REVIEWED BY:
€O
City Manager
JMK-vh:1204644: '9)(Item67) 5/13/15
2 Ordinance S-42095