IGA WITH FORT MCDOWELL YAVAPAI NATION.PDF

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND
FORT MCDOWELL YAVAPAI NATION
FOR IMPROVEMENTS TO: FORT MCDOWELL ROAD
FROM MOJAVE ROAD TO YAVAPAI ROAD
(TT003)
(C-6445- -M-00)
This Intergovernmental Agreement ("Agreement") is between the County of Maricopa, a
political subdivision of the State (the "County"), and Fort McDowell Yavapai Nation, a
federally recognized sovereign Indian Tribe, organized pursuant to the Constitution of the
Fort McDowell Yavapai Nation and Section 16 of the Indian Reorganization Act of 1934 (the
"Nation"), The County and the Nation are collectively referred to as the Parties or individually
as a Party.
STATUTORY AUTHORIZATION
1. A.R.S. §11-251 and §§28-6701 et seg. 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.
BACKGROUND
3. The Nation will provide safety improvements to Fort McDowell Road from Mojave Road
to Yavapai Road. Improvements will include the construction of a left turn lane from
northbound Fort McDowell Road to westbound Hillside Road; the installation of street
lighting; and the reduction of curvature to provide better visibility. The installation of
guardrails where needed will also be included (the "Project"). This segment of Fort
McDowell Road is currently under the jurisdiction of Maricopa County.
4. The Project is expected to be divided into three phases which will include a
comprehensive safety study and a specific design for each segment. The safety study
and the design of each individual segment are anticipated in FY2015. The construction
of each segment is expected in FY2016. The Project will be designed to County
standards. The Nation is the lead agency for the Project. The total cost of the Project
is currently estimated at $1,475,000.

5. The Board of Supervisors, by Resolution in May 2002, approved the creation of the
Transportation Advisory Board Special Project Fund (TAB-SPF) in the amount of
$1,000,000 per fiscal year. The Board of Supervisors increased the TAB-SPF to
$1,500,000 by Amendment Resolution 02-05A in June 2007.
5.1 The TAB-SPF may be utilized by the Maricopa County Department of
Transportation (MCDOT) to respond to proposed projects as determined
appropriate by the Transportation Advisory Board (TAB).
5.2 The TAB-SPF is administered by MCDOT, in accordance with the Board of
Supervisors resolutions, through MCDOT Policy 11103.
6. On September 16, 2014, the Transportation Advisory Board (TAB) recommended that
the Board of Supervisors fund the Project submitted by the Nation from the FY2015
Special Project Fund (SPF) for a maximum amount of $988,479, excluding the cost of
any enhancements by the Nation over and above the scope of the Project as
presented in the application to the TAB. The County contribution will not exceed
$988,479.
PURPOSE OF THE AGREEMENT
7. The purpose of this Agreement is to identify and define the responsibilities of the County
and the Nation for the Project, including cost sharing, design, right-of-way acquisition,
utility relocation, construction, and construction management.
TERMS OF THE AGREEMENT
8. Responsibilities of the County:
8.1 The County shall assign a representative to serve on the Project team.
8.2 The County shall issue permits at no cost to the Nation for work done on the
Project within County jurisdiction, as applicable.
8.3 The County shall review all design and construction documents provided by the
Nation and provide comments back to the Nation in a timely manner. This shall
include, but not be limited to, all mix designs, testing results and any other
materials that will be placed in County right-of-way.
8.4 The County shall perform periodic spot inspections of work performed in
County right-of-way.
8.5 The County contribution toward the Project shall be a maximum amount of
$988,479, excluding the cost of any enhancements by the Nation over and
above the scope of the Project as presented in the Nation's application to the
TAB.
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8.6 The County shall remit payment to the Nation within thirty (30) days of receipt
of an invoice.
8.7 Upon approval of this Agreement by the County Board of Supervisors, the
County shall notify the Nation that the Board has approved the Agreement.
8.8 The County shall provide the Nation with a fully executed copy of the
Agreement.
9. Responsibilities of the Nation:
9.1 The Nation shall act as the Lead Agency for the Project to include, but not be
limited to, the design, construction, construction management, right-of-way
acquisition, and utility relocations, as applicable.
9.2 The Nation shall obtain all necessary and required permits and approvals from
the County for work being done in the County's jurisdiction. Approvals shall
include, but not be limited to, any deviations from Maricopa Association of
Government (MAG) specifications which impacts County right-of-way.
9,3 The Nation shall provide the design and construction documents for the Project
to the County for review at the appropriate stages of development, including for
any future maintenance activities. This shall include, but not be limited to all
mix designs, testing results and any other materials that will be placed in
County right-of-way,
9,4 The Nation shall provide the opportunity to the County to perform periodic spot
inspections of work performed in County right-of-way.
9,5 The Nation shall be responsible for traffic control during construction, and shall
notify the County in advance of approving any lane closures and/or roadway
restrictions within County right-of-way. The County will not be responsible for
traffic control within the Project area. If traffic control extends to other roadways
beyond the Project area, the Nation shall apply to the County for a separate
traffic control permit.
9.6 The Nation shall be responsible for final inspection and approval of the
construction of the Project.
9.7 The Nation shall be responsible for permitting any subsequent activities,
including, but not limited to, any utility relocations occurring within the Project
area.
9.8 The Nation shall be responsible for operation and maintenance of any
additionally acquired right-of-way,
9.9 The Nation shall invoice the County for the award amount of $45,000 upon
contract award for the safety study of the Project.
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9.10 The Nation shall invoice the County for the award amount of $215,000 upon
contract award for the design of the Project.
9.11 The Nation shall invoice the County for the award amount of $728,479 upon
contract award for the construction of the Project.
9.12 The Nation shall deliver a copy of the Project bid award, when issued, to the
County c/o Intergovernmental Relations Branch, 2901 West Durango Street,
Phoenix Arizona 85009.
9.13 Upon completion of the Project construction, the Nation shall provide to the
County a final accounting of all funds, not including any costs associated with
any enhancements requested by the Nation over and above the scope of the
Project as presented in the Nation's application to the TAB,
9.14 The Nation shall be responsible for the cost of any enhancements over and
above the scope of the Project as presented in the application to the TAB.
9.15 The Nation shall be responsible for all Project costs in excess of $988,479.
9,16 The Nation shall report to the County key Project milestones, at least four (4)
weeks in advance, to allow for coordinated public awareness plans,
groundbreaking ceremonies, ribbon cuttings, and/or media releases, as
appropriate.
9.17 The Nation shall return any remaining unused Special Project Fund award
amount to the County upon completion of the Project.
GENERAL TERMS AND CONDITIONS
10. 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.
11, 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
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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.
12. This Agreement shall be subject to the provisions of A,R.S. Section 38-511.
13. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
acknowledge that:
13.1 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.
13.2 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.
13.3 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.
13.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
14. 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,
15. 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.
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16. 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
Fort McDowell Yavapai Nation
Community & Economic Development
P.O. Box 17779
Fountain Hills, Arizona 85269
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, lf 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,
17, This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
18, This Agreement does not create a duty or responsibility unless the intention to do so is
clearly and unambiguously stated in this Agreement.
19. 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.
20. 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 Fort McDowell Yavapai Nation Tribal 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.
21. 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.
22. 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
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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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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 fails 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.
28. 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.
29. 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.
30. 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.
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31. 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
32. This Agreement shall be governed by the laws of the State of Arizona
33. 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 to Follow
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IN WITNESS WHEREOF, the Parties have executed this Agreement.
IVIARICOPA COUNTY FORT MCDOWELL
YAVAPAI NATION
Recommended by:
oth;T:E.
ation Director
Approved and Accepted by: Approved and Accepted by:
Steve Chucri, Chairman Date ben Bat ras Date
Board of Supervisors President
Attest by:
Fran McCarroll Date
Clerk of the Board
APPROVAL OF DEPUTY COUNTY ATTORNEY AND THE NATION ATTORNEY
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 Nation Attorney Date
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