IGA IMPROVEMENTS GERMANN_SOSSAMAN DCR V1.DOC

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY, THE TOWN OF QUEEN CREEK AND THE CITY
OF MESA FOR THE DESIGN CONCEPT REPORT FOR THE INTERSECTION OF
GERMANN ROAD AND SOSSAMAN ROAD
(TT# 462)
(C-64-14- __________ -M-00)
This Intergovernmental Agreement (“Agreement”) is between the County of Maricopa, a
political subdivision of the State of Arizona (County), the Town of Queen Creek, a municipal
corporation (“Town”) and the City of Mesa, a municipal corporation (“City”). The County,
Town and City 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 each 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.
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 and Sections 9-276 et. seq. authorize the Town and the City to
lay out and establish, regulate and improve streets within the Town and City and to
enter into this Agreement.
BACKGROUND
4. The Germann Road and Sossaman Road Intersection Design Concept Report (DCR)
is a collaborative effort between the County, the Town and the City.
5. The purpose of the DCR is to evaluate the intersection of Germann Road and
Sossaman Road ½ mile in each direction and develop a design concept for the
intersection. This will include consideration of an at-grade crossing at the Union Pacific
Railroad (UPRR) and traffic impacts that a new intersection would have on adjacent
roadways such as Pecos Rd and Rittenhouse. In addition, the DCR will identify limits
for right of way preservation and underground utility impacts.
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6. The DCR is anticipated to begin in fiscal year 2014 with an estimated cost of $150,000.
7. Each Party shall contribute one-third (1/3) of the cost of the DCR up to a maximum
total DCR cost of $150,000. The Town shall be responsible for any additional cost
over a total DCR cost of $150,000.
8. All Parties shall participate in the process of selecting a consultant to prepare the DCR.
The Parties shall select the consultant by agreement of the Parties. All Parties shall
participate in the process of developing and selecting a recommended alternative for
any potential future project. The Parties shall select the recommended alternative by
consensus of the Parties.
9. If a recommended alternative is presented for design and construction, a new
intergovernmental agreement between the Parties shall be negotiated for the design,
right-of-way acquisition and construction phases of the intersection improvements.
Participation in this Agreement does not commit any Party to future participation in
another intergovernmental agreement or any specific cost share relative to design,
right-of-way or construction of a future project. Each Party’s potential future
participation or cost share in design, right-of-way or construction will be determined
based on, among other factors, jurisdictional ownership and the characteristics and
merits of the future project.
PURPOSE OF THE AGREEMENT
10. The purpose of this Agreement is to identify and define the respective roles and
responsibilities of the County, the Town and the City for the DCR.
TERMS OF THE AGREEMENT
11. Responsibilities of the County:
11.1 The County shall participate in the development of the DCR including, but not
limited to, the consultant selection, fee negotiations, and identification of a
recommended alternative.
11.2 The County shall review draft(s) of the DCR received from the Town and shall
respond with comments within ten (10) working days of receipt.
11.3 The County shall be responsible for one-third (1/3) of the cost of the DCR up to
a total DCR cost of $150,000. In no case shall the County contribute more
than $50,000 for the development of the DCR.
11.4 The County shall remit payment to the Town within thirty (30) working days of
receipt of a proper invoice from the Town.
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12. Responsibilities of the Town:
12.1 The Town shall act as the lead agency for the development of the DCR.
12.2 The Town shall conduct a process to secure the consultant for the DCR.
12.3 The Town shall consult and coordinate with the Parties throughout
development of the DCR and provide them the opportunity to review the
document and submit comments.
12.4 The Town shall contribute one-third (1/3) of the cost of the DCR up to a total
DCR cost of $150,000. The Town shall also be responsible for any additional
cost over a total DCR cost of $150,000.
12.5 Upon execution of the consultant contract, the Town shall provide the County
and City a copy of the executed contract.
12.6 The Town will invoice the Parties for their respective cost shares based on the
amount of the progress payments that will fulfill the terms of the executed
contract.
12.7 Upon completion of the DCR and determination of actual final cost of the DCR,
the Town shall either invoice the Parties for the balance of their respective cost
shares or provide refunds to the Parties, as appropriate, to achieve their
respective cost shares pursuant to this Agreement.
13. Responsibilities of the City:
13.1 The City shall participate in the development of the DCR including, but not
limited to, the consultant selection, fee negotiations, and identification of a
recommended alternative.
13.2 The City shall review draft(s) of the DCR document received from the Town
and shall respond with comments within ten (10) working days of receipt.
13.3 The City shall contribute one-third (1/3) of the cost of the DCR up to a total
DCR cost of $150,000. In no case shall the City contribute more than $50,000.
13.4 The City shall remit progress payments to the Town within thirty (30) working
days of receipt of a proper invoice from the Town.
GENERAL TERMS AND CONDITIONS
14. 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
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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.
15. 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.
16. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
17. The Parties warrant that they are in compliance with A.R.S. Section 41-440 and further
acknowledge that:
17.1 Any consultant or sub consultant 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.
17.2 Any breach of the warranty, shall be deemed a material breach of the
contract contract that is subject to penalties up to and including termination
of the contract.
17.3 The Parties retain the legal right to inspect the papers of any consultant or
sub consultant employee who works on the Project to ensure that the
consultant or sub consultant is complying with the warranty above and that
the consultant agrees to make all papers and employment records of said
employee available during normal working hours in order to facilitate such
an inspection.
17.4 Nothing in this Agreement shall make any consultant or sub consultant an
agent or employee of the Parties to this Agreement.
18. Each Party to this Agreement warrants that neither it nor any consultant 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.
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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.
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 Queen Creek
Attn: Troy White
22358 South Ellsworth Road
Queen Creek, Arizona 85142
City of Mesa
Attn: City Engineer
P.O. Box 1466
Mesa, Arizona 85211
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.
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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, the Queen Creek Town Council, and the City of Mesa 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.
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.
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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:
_______________________________
Andrew Kunasek, Chairman Date
Board of Supervisors
Attest by:
_______________________________
Fran McCarroll Date
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 QUEEN CREEK
Recommended by:
_____________________________
John Kross Date
Town Manager
Approved and Accepted by:
______________________________
Gail Barney Date
Mayor
Attest by:
_______________________________
Town Clerk Date
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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IN WITNESS WHEREOF, the Parties have executed this Agreement.
CITY OF MESA
Approved and Accepted by:
_______________________________
Chris Brady Date
City Manager
Attest by:
_______________________________
DeeAnn Mickelsen Date
City Clerk
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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