IGA ABANDONMENT HIGLEY ROAD 02102014.DOC

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND THE TOWN OF GILBERT
FOR THE ABANDONMENT OF APPROXIMATELY 650 FEET OF HIGLEY ROAD
LOCATED 300 FEET NORTH OF THE STATE ROUTE 202L
(C-64-13- __________ -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.
This Agreement shall become effective as of the date it is approved by the Maricopa County Board of
Supervisors.
STATUTORY AUTHORIZATION
1. A.R.S. Section 11-251 and Sections 28-6701 et. seq. authorize the County to lay out,
maintain, control and manage public roads within the County.
2. A.R.S. Sections 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. Section 9-240 authorizes the Town to lay out and improve new streets, avenues and
alleys.
BACKGROUND
4. Higley Road from State Route 202L (the San Tan Freeway), to a point approximately 1,320
feet south of Warner Road, as more particularly described on Exhibit A (the “Road”) is located
in southeastern Maricopa County and is under the jurisdiction of Maricopa County.
5. The portion of the Road described as Parcel A on Exhibit A (“Parcel A”) is under the jurisdiction
of the State of Arizona, Arizona Department of Transportation (ADOT).
6. The Town of Gilbert is currently developing design plans to improve Higley Road in this area,
under Gilbert CIP Project ST152 (the “Project”). When completed, the Project will widen Higley
Road to accommodate four (4) lanes (2 northbound and 2 southbound) with a raised median.
7. The Town has requested ADOT to abandon the interest held by the State of Arizona in and to
Parcel A, pursuant to A.R.S. Sections 28-304 and 28-7209, so that the Town can annex or
have transferred to it Parcel A pursuant to A.R.S. Section 9-417(N) (the “Annexation”).

8. Upon abandonment by ADOT, jurisdiction of the portions of the Road not held by the County
would transfer to the County until the Annexation is complete.
9. Subject to Paragraph 12.4, all plan review and approval for those portions of the Project within
County jurisdiction shall be provided by the Town.
PURPOSE OF THE AGREEMENT
10. The purpose of this Agreement is to identify and define the responsibilities of the Parties for the
Project, including but not limited to:
10.1Abandonment of Parcel A;
10.2Providing notice of the Town’s intent to annex and/or seek the transfer of the Road upon
abandonment of Parcel A by ADOT;
10.3The Annexation;
10.4Other activities while Parcel A is temporarily within the County’s jurisdiction; and
10.5All other roles and responsibilities of the Parties related to the Project.
TERMS OF THE AGREEMENT
11. Responsibilities of the County:
11.1 No later than five (5) business days after this Agreement is approved by the Maricopa
County Board of Supervisors and all County signatures are applied to the Agreement,
the County shall:
11.1.1 Request ADOT to abandon Parcel A pursuant to A.R.S. Section 28- 7209; and
11.1.2 Provide ADOT with an executed waiver of the Advance Four Year Notice of
Abandonment in a form approved by ADOT.
11.2 The County shall process the Annexation pursuant to A.R.S. Section 9-471(N) in the
normal course of business upon receipt of a written request for the Annexation from
Gilbert following abandonment of Parcel A by ADOT.
11.3 Upon completion of ADOT’s abandonment, the County shall issue permits to Gilbert
and waive all permit fees for Project related work conducted within County jurisdiction
at the time the permits are required.
12. Responsibilities of the Town:
12.1 Except for the issuance of construction permits, the Town shall act as the lead agency
for all aspects of the Project throughout the duration of the Project and shall
coordinate with the County throughout all phases of the Project.
12.2 The Town shall contribute 100% of the cost of Project.
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12.3 The Town shall make a formal request to the County for the Annexation pursuant to
A.R.S. Section 9-471(N) within ninety (90) days after ADOT completes abandonment
of Parcel A to County, or at such time as it can be legally annexed.
12.4 The Town shall be responsible for reviewing and approving all plans for the Project
and coordinating with the County regarding issuance of permits.
12.5 The Town shall coordinate with the entity or entities receiving a construction permit for
the Project from the County regarding compliance with all laws, rules, regulations and
permits applicable to the Project.
12.6 Upon completion of construction, final inspection and acceptance of the Project, the
Town shall assume liability, operation and maintenance responsibility for all aspects of
the Road.
12.7 In addition to the requirements under Paragraph 13 of this Agreement, the Town shall,
to the extent permitted by law, indemnify, defend and save the County harmless,
including any of the County’s departments, agencies, officers, employees, elected
officials or agents, from and against all loss, expense, damage or claim of any nature
whatsoever related to the County seeking abandonment of Parcel A, waiving the
Advance Four Year Notice of Abandonment, and/or assuming jurisdiction over Parcel
A, including, without limitation, all liability, losses and damages of any nature,
including costs, expenses of litigation and reasonable attorney’s fees, 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 County seeking abandonment of
Parcel A, waiving the Advance Four Year Notice of Abandonment, design, review and
approval by the County of any portion of the Project, and/or assuming jurisdiction over
Parcel A, except to the extent such injury or damage shall have been caused or
contributed to by the negligence, willful or malicious conduct of the County, including
any County department, agencies, officers, employees, elected officials or agents. In
the event of any conflict between the terms of this paragraph 12.7 and paragraph 13,
this paragraph 12.7 shall control.
GENERAL TERMS AND CONDITIONS
13. By entering into this Agreement, the Parties agree that to the extent permitted by law, each Party
will indemnify, defend and save the other Party 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.
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14. 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.
15. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
16. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
acknowledge that:
16.1 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.
16.2 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.
16.3 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.
16.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or
employee of the Parties to this Agreement.
17. The Parties warrant that they do not have scrutinized business operations in Sudan or Iran, as
prohibited by A.R.S. Sections 35-391.06 and 35-393.06, and further acknowledge that any
contractor or subcontractor who is contracted by a party to perform work on the Project shall
warrant that they do not have scrutinized business operations in Sudan or Iran.
18. 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.
19. 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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20. All notices required under this agreement to be given in writing shall be sent to:
Maricopa County Department of Transportation
Attn: Intergovernmental Liaison
2901 W. Durango Street
Phoenix, Arizona 85009
Town of Gilbert
Attn: Intergovernmental Liaison
50 E. Civic Center Drive
Gilbert, Arizona 85296
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.
21. This Agreement does not imply authority to perform any tasks, or accept any responsibility, not
expressly stated in this Agreement.
22. This Agreement does not create a duty or responsibility unless the intention to do so is clearly
and unambiguously stated in this Agreement.
23. 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.
24. 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.
25. 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.
26. 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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27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. This Agreement shall be governed by the laws of the State of Arizona.
37. 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:
_______________________________
John B. Hauskins, P.E. Date
Transportation Director
Approved and Accepted by:
_______________________________
Denny Barney, Chairman Date
Board of Supervisors
Attest by:
_______________________________
Fran McCarroll Date
Clerk of the Board
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.
TOWN OF GILBERT
Approved and Accepted by:
_______________________________
John Lewis Date
Mayor
Attest by:
_______________________________
Town Clerk Date
APPROVAL OF 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.
______________________________
Town Attorney Date
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