20150610160806532.PDF

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND THE TOWN OF GILBERT
FOR IMPROVEMENTS TO 154TH STREET FROM
OCOTILLO ROAD TO APPLEBY ROAD
#TT 516
(C-64-15- -M-00)
This Intergovernmental Agreement ("Agreement") is between the County of Maricopa, a
political subdivision of the State of Arizona ("County"), and the Town of Gilbert, a municipal
corporation ("Town"). The County and Town are collectively referred to as the Parties or
individually as a Party.
STATUTORY AUTHORIZATION
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 Town to lay out and
establish, regulate and improve streets within the Town and to enter into this
Agreement.
BACKGROUND
4. 154th Street from Ocotillo Road to Appleby Road is partially in the unincorporated area
of the County and partially in the Town. The road surface is primarily dirt with mixed
gravel.
5. The Parties desire to apply a chip seal to 154 th Street from Ocotillo Road to Appleby
Road, a length of approximately 2,687 feet, to provide dust mitigation for both County
and Town residents. (The "Project")
6. The Project construction is expected to be completed fiscal year 2016. The estimated
cost of the Project, including design and construction, is $250,000.
7. The Town will complete the annexation of the roadway prior to the start of the Project.
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8. County financial participation shall be limited to aspects of the Project that are essential
for the establishment of a safe roadway consistent with the County's cost participation
policy. The County will not financially participate in Project enhancements such as
landscaping, irrigation, street lighting, visual mitigation, decorative pavers, street
furniture or any other items inconsistent with the County's cost participation policy
unless there is a benefit to the County that can be demonstrated by a benefit/cost
analysis.
PURPOSE OF THE AGREEMENT
9. The purpose of this Agreement is to identify and define the responsibilities of the County
and the Town for various elements of the Project, which include, but are not limited to,
cost sharing, design, permitting, construction, construction management and
annexation.
TERMS OF THE AGREEMENT
10. Responsibilities of the County:
10.1 The County shall provide comments to the Town within 15 working days of
receipt of the design plans from the Town.
10.2 The County shall contribute sixty-two percent (62%) of the estimated cost of
the Project, not including any Town requested enhancements as described in
Paragraph 8 of this Agreement, up to a maximum of $155,000.
10.3 The County shall remit payment to the Town within 15 working days of receipt
of each invoice from the Town.
11. Responsibilities of Town:
11.1 The Town shall annex the area necessary for the Project prior to the start of
construction.
11.2 The Town shall act as the lead agency for all aspects of the Project and shall
design and construct the Project to standards prescribed by the Town.
11.3 The Town shall provide the County with copies of design plans for review and
comment.
11.4 The Town shall contribute the remaining balance of the Project cost, over and
above the County's cost contribution as prescribed in Paragraph 10.2 of this
Agreement, and shall be responsible for Town requested enhancements as
described in Paragraph 8 of this Agreement.
11.5 The Town shall invoice the County for one-half of the County's estimated cost
contribution as prescribed in paragraph 10.2 of this Agreement when the
Notice to Proceed is issued to the contractor to begin Project construction.
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11.6 Upon completion and final acceptance of the Project construction, the Town
shall invoice the County for the balance of the County's cost contribution as
prescribed in Paragraph 10.2 of this Agreement.
11.7 Upon completion and final acceptance of the Project construction, the Town
shall accept responsibility for the Project, including the entire project area
within the Town's jurisdictional boundaries.
GENERAL TERMS AND CONDITIONS
12. 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.
13. 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.
14. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
15. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
acknowledge that:
15.1 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.
15.2 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.
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15.3 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.
15.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
16. 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.
17. 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.
18. All notices required under this agreement to be given in writing shall be sent to:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch
2901 W. Durango Street
Phoenix, Arizona 85009
Town of Gilbert
Attn: Town Manager
50 E. Civic Center Drive
Gilbert, Arizona 85296
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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.
19. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
20. This Agreement does not create a duty or responsibility unless the intention to do so is
clearly and unambiguously stated in this Agreement,
21. 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.
22. 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 Gilbert Town 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.
23. 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.
24. 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.
25. 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.
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26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. This Agreement shall be governed by the laws of the State of Arizona.
35. 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 TOWN OF GILBERT
Recommended by:
/cult.). c,01
W-Jennif oth, RE. Date
Transfortation Director
Approved and Accepted by: Approved and Accepted by:
Steve Chucri, Chairman Date John Lewis Date
Board of Supervisors Mayor
Attest by: Attest by:
Clerk of the Board Date Town Clerk Date
APPROVAL OF DEPUTY COUNTY ATTORNEY AND TOWN 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 Town Attorney Date
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