MEMORANDUM OF UNDERSTANDING 11-20-2013.PDF

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MARICOPA ntsm
Awl& ASSOCIATION of
GOVERNMENTS
MARICOPA ASSOCIATION OF GOVERNMENTS
ARTERIAL LIFE. CYCLE PROGRAM
MEMORANDUM OF UNDERSTANDING
McKellips Rd: Loop 101 to SRP-MIC/Alma School Road
Memorandum of Understanding No. 14-MOU-MCK-40-03
RTP Project # ACI-MCK-40-03
MAG TIP Project # MMA13-105PDZ
Maricopa County Transportation Improvement Plan Project #T342
This Agreement (Agreement) by and between the Maricopa Association of Governments (MAG)
and Maricopa County, a body politic acting through the Maricopa County Department of
Transportation, will become effective on the day on which it is executed by the Maricopa County
Board of Supervisors and the MAG Executive Director. MAG and Maricopa County are referred
to in this Agreement each individually as a "Party" and collectively as the "Parties."
RECITALS
A. MAG is the regional planning agency for Maricopa County. MAG is governed by a regional
council, which includes the mayor or chief executive of each member agency (Regional Council).
Pursuant to state law, MAG has developed, and the necessary parties have approved, a twenty-year
comprehensive, performance based, multimodal and coordinated Regional Transportation Plan
(RTP) in the County. The arterial street component of the RTP includes major arterial streets and
intersection improvements (Arterial Street Improvements) with a revenue allocation.
B. In November 2004, the voters of Maticopa County approved a transaction excise tax for the
purpose of implementing the RTP. Federal Highway Administration (FHWA) Surface
Transportation Program (STP) and Congestion Mitigation and Air Quality (CMAQ) Funds are also
allocated to the MAG region and administered by the Arizona Department of Transportation
(ADOT) and are eligible to be used to implement the RTP.
C. MAG is required by state law to adopt a program that provides for life cycle management
for the funding and programming of the Arterial Street Improvements (Arterial Life Cycle Program).
On September 16, 2013, the Regional Council approved the current Arterial Life Cycle Program
(ALCP), and on December 9, 2009, the Regional Council approved the ALCP Policies and
Procedures. The December 9, 2009 Policies and Procedures, as they may from time to time be
amended (henceforth, the "Policies and Procedures"), are incorporated into this Agreement as fully
as if set forth in this Agreement. Copies of the Policies and Procedures are available from MAG.
Capitalized terms that are not defined in this Agreement, have the meaning set forth in the Policies
and Procedures.
D. Funds for ALCP are administered by the Arizona Department of Transportation
(ADOT) through its Regional Arterial Road Fund (RARF) sub-account for arterial streets, and

through allocations of Federal Highway Administration STP and CMAQ Funds that are allocated to
the MAG region and administered by ADOT. Funds will be disbursed by ADOT once federal
requirements are satisfied, as applicable, and upon the presentation of an invoice approved or
reviewed with concurrence by MAG as provided in this Agreement.
E. The ALCP includes a pre-design/study phase for an arterial capacity improvement
on McKellips Road from Loop 101 to Salt River Pima-Maricopa Indian Community/Alma School
Road (Project). The Project will determine the scope, costs, and schedule for the full ALCP project
on McKellips Road from Loop 101 to Salt River Pima-Maricopa Indian Community/Alma School
Road.
F. Pre-design/study funding in the amount of $581,000 in Federal Fiscal Year 2013 has
been programmed for the Project.
G. Upon completion of the Project, the Parties anticipate entering into a full Project
Agreement to complete design, tight-of-way, and construction of the McKellips Road from
Loop 101 to Salt River Pima-Maricopa Indian Community/Alma School Road
improvements, as programmed in the ALCP.
H. The Parties are authorized to enter into this agreement by the provisions of Arizona
Revised Statutes Section 28-6301 et seq., A.R.S. Section 11-251, 11-951 and 28-6701.
AGREEMENTS
NOW, THEREFORE, for good and sufficient consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
A. Purpose. The purpose of this Agreement is to identify and define the responsibilities of
Maricopa County and MAG for the completion and financing of the Project, as established
in the ALCP.
B. Responsibilities of the Parties.
1. MAG's Responsibilities. MAG agrees to:
a. Administer the ALCP, pursuant to the Policies and Procedures;
b. Provide to Maricopa County the required format for submitting requests for
payment, invoices, progress reports, and backup documentation;
c. Concur with invoices for projects to be reimbursed with federal funds, subject to
the terms of this Agreement;
d. Submit the approved Request for Payment form to ADOT for payment by
ADOT to Maricopa County. The payments from ADOT to Maricopa County
will be based on the reimbursement amounts as noted in the Recitals, Section F.

The basis for payment to Maricopa County shall be reimbursement for costs in
conformance with the ALCP and the Policies and Procedures.
2. Malicopa County's Responsibilities. Maricopa County agrees to:
a. Be responsible for all project costs and submit invoices to MAG and ADOT
for reimbursement. Maricopa County will: 1) be responsible for all project
costs and submit invoices to MAG for reimbursement. 2) be responsible for
the completion of all surveys, design, plans and specifications, including
contractor selection documents; 3) conduct contractor selection process(es)
and award contract(s) pursuant to the applicable laws 4) review and approve
invoices from its contractors and subcontractors before submitting invoices
to MAG and ADOT;
b. Abide by the Policies and Procedures throughout the completion of the
Project.
d. Be responsible for meeting all applicable federal requirements for the Project;
e. Obtain appropriate indemnifications and insurance from all contractors and
subcontractors involved in the Project;
f. Be responsible for all Project costs in excess of the maximum amount of the
regional funds allocated for the Project in the amount of $581,000 (Allocated
Regional Funds). The amount of funds to be paid to Maricopa County
pursuant to this Agreement will not exceed the Allocated Regional Funds.
The allocated regional funds are expressed in 2011 dollar amounts;
g. Provide invoices and progress reports to MAG pursuant to the project
schedule provided in the Project Overview; and
h. Otherwise comply with all requirements of this Agreement.
i. Maricopa County's authorized representative to sign, approve and submit
invoices to MAG is County's Transportation Director or designee.
C. Records and Audit Rights. Maricopa County's work and accounting records (hard copy, as
well as computer readable data), and any other supporting evidence deemed necessary by
MAG to substantiate charges and claims related to this Agreement shall be open to
inspection and subject to audit and/or reproduction by authorized representatives of MAG,
the Arizona Department of Transportation and the Auditor General of the State of Arizona
("Auditors"), as applicable to the extent necessary to adequately permit evaluation and
verification of the performance and cost of the work, and to conduct and prepare all audits
and reports required by law. Auditors shall be afforded access, at reasonable times and
places, to all of Maricopa County's records and personnel, pursuant to the provisions of this
Section, throughout the term of this Agreement, and for a period of five (5) years after last
or final payment.

D. Term and Termination. The Agreement is valid through the payment of the final invoice
submitted by the County to MAG, and accepted by MAG for completion of pre-design,
subject to earlier termination as specifically provided herein.
1. Termination by MAG. MAG reserves the right to terminate this Agreement in the
event that MAG determines, in its reasonable discretion, that local or regional funds
are not available to meet Maricopa County's financial responsibilities in regard to the
Project or in the event of an act of God or act of war or terror that makes
continuation of work pursuant to this Agreement no longer in the public interest.
MAG will give 60 days advance notice of such termination, unless such notice is
impracticable, in which case MAG will provide such notice as is practicable under
the circumstances. In the event of such termination, MAG shall recommend to
ADOT that it reimburse Maricopa County as provided in this Agreement, for work
satisfactorily performed to the date of termination.
MAG also reserves the right to terminate this Agreement in the following
circumstances: 1) no Material Project Reimbursement Request ("MPRR") has been
submitted to MAG for a period of at least eighteen (18) months from the date of the
last Project Reimbursement Request (PRR), or the effective date of this Agreement,
whichever is later; 2) no Substantial Project Reimbursement Request ("SPRR.") has
been submitted to MAG for a period of thirty (30) months from the date of the last
PRR, or the effective date of this Agreement, whichever is later; or 3) in the event of
a Substantial Project Change.
2. Termination by Maricopa County. Maricopa County reserves the tight to terminate
this Agreement in the event that Maricopa County determines, in its reasonable
discretion, that local funds are not available to meet Maricopa County's financial
responsibilities in regard to the Project or in the event of an act of God or act of war
or terror that makes continuation of work pursuant to this Agreement no longer in
the public interest. Maricopa County will give 60 days advance notice of such
termination, unless such notice is impracticable under these circumstances, in which
case Maticopa County will provide such notice, as is practicable.
3. Termination by Mutual Consent. The Parties may terminate this Agreement by
mutual consent in the event that they determine that such termination is in
furtherance of the goals of the Arterial Life Cycle Program and is in the best interests
of the Parties.
4. In the event of termination pursuant to this Section "D," Maricopa County agrees that it
will leave the Project in condition that is safe for use by public.
E. Availability of Funds. Each Party's obligations under this Agreement are conditioned upon
the availability of funds, appropriated or allocated, for the payment of such obligation. No
liability shall accrue to MAG in the event MAG declines to review and/or approve invoices
for payment on the basis that funds are not available for payment of such invoices and
MAG terminates the Agreement in accordance with section D.1.

F. Indemnification. Each Party to this Agreement ( as Indemnitor) agrees to defend, indemnify
and hold harmless the other Party, and such Party's officers, officials, employees, agents, and
directors (collectively, the Indemnitee) from and against any and all claims, demands, losses,
liabilities, causes of action and costs (including expert witness fees, attorney's fees and costs
of defense and appellate appeal) (collectively Claims), which may be imposed upon, incurred
by or asserted against the Indemnitee, attributable (directly or indirectly) to, or arising in any
manner by reason of, the negligence, error, or omission of any agent, officer, servant, or
employee of the Indernnitor, or anyone for whom Indemnitor may be legally liable, in the
performance of this Agreement.
G. Conflict of Interest. This Agreement is subject to termination for conflict of interest,
pursuant to the provisions of A.R.S. § 38-511.
H. Ownership of Improvements upon Termination. Upon the expiration or other termination
of this Agreement, ownership of the Project and the improvements constructed under this
Agreement, if any, shall be vested in Maricopa County or as otherwise provided in any IGA
relevant to the Project.
I. General Provisions.
1. INCORPORATION OF RECITALS. The Recitals are acknowledged by the Parties
to be substantially true and correct, and hereby incorporated as agreements of the
Parties.
2. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of
the Parties and supersedes all previous representations, written or oral, with respect
to the services specified herein. .
3. OFFICIAL COPIES. MAG shall provide Maricopa County with one signed copy of
the agreement within 14 days of execution by the MAG Executive Director.
4. ARIZONA LAW. This Agreement shall be governed and interpreted according to
the laws of the State of Arizona.
5. MODIFICATIONS. Except as otherwise specifically provided in this Agreement,
any amendment, modification or variation from the terms of this Agreement shall be
in writing and shall be effective only after written approval of all Parties.
6. ATTORNEY'S FEES. In the event either Party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement, or on account of any breach
or default of this Agreement, the prevailing Party shall be entitled to received from
the other Party reasonable attorneys' fees and reasonable costs and expenses, as
determined by the arbitrator or court sitting without a jury, which shall be deemed to
have accrued on the commencement of such action and shall be enforceable,
whether or not such action is prosecuted to judgment.
7. NOTICES. All notices or demands required to be given, pursuant to the terms of this
Agreement, shall be given to the other Party in writing, delivered in person, sent by

facsimile transmission, deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested or deposited with any
commercial air courier or express service at the addresses set forth below, or to such
other address as the Parties may substitute by written notice, given in the manner
prescribed in this paragraph.
If to Maricopa County: Ms. Kellee Kelley
Maricopa County Department of Transportation
Transportation Planning Division
2901 W. Durango Street
Phoenix, AZ 85009
Tel: (602) 506-1791
Fax: (602)506-4882
If to MAG: Executive Director
Maricopa Association of Governments
302 No. First Avenue
Suite 300
Phoenix, Arizona 85003
Tel: (602) 254-6300
Fax: (602) 254-6490
A notice shall be deemed received on the date delivered, if delivered by hand, on the
day it is sent by facsimile transmission, on the second day after its deposit with any
commercial air couriers or express service, or if mailed, three (3) working days
(exclusive of United States Post Office holidays) after the notice is deposited in the
United States mail as above provided, and on the delivery date indicated on receipt, if
delivered by certified or registered mail. Any time period stated in a notice shall be
computed from the time the notice is deemed received. Notices sent by facsimile
transmission shall also be sent by regular mail to the recipient at the above address.
This requirement for duplicate notice is not intended to change the effective date of
the notice sent by facsimile transmission. E-mail is not an acceptable means for
meeting the requirements of this section unless otherwise agreed in writing.
8. FORCE MAJEURE. Neither Party shall be responsible for delays or failures in
performance resulting from acts beyond their control. Such acts shall include, but
not be limited to, acts of God, riots, acts of war, epidemics, governmental regulations
imposed after the fact, fire, communication line failures or power failures.
9. ADVERTISING. No advertising or publicity concerning MAG using any
contractor's or subcontractor's services shall be undertaken without prior written
approval of such advertising or publicity by MAG's Executive Director.
10. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and each originally executed duplicate counterpart of this Agreement shall be
deemed to possess the full force and effect of the original.

11. CAPTIONS. The captions used in this Agreement are solely for the convenience of
the Parties, do not constitute a part of this Agreement and are not to be used to
construe or interpret this Agreement.
12. SEVERABILITY. If any term or provision of this Agreement shall be found to be
illegal or unenforceable, then notwithstanding such illegality or unenforceability, this
Agreement shall remain in full force and effect, and such term or provision shall be
deemed to be deleted.
13. AUTHORITY. Each Party hereby warrants and represents that it has full power and
authority to enter into and perform this Agreement, and that the person signing on
behalf of each has been properly authorized and empowered to enter this
Agreement. Each Party further acknowledges that it has read this Agreement,
understands it, and agrees to be bound by it.
14. E-VERIFY.
a. Warrant of Compliance. Pursuant to the provisions of A.R.S. §41-4401, each
Party warrants to the other that it is in compliance with all Federal
Immigration laws and regulations that relate to its employees and with the E-
Verify Program under A.R.S. §23-214(A).
b. Breach of Warranty. A breach of this warranty by a Party or any of its
subcontractors will be considered a material breach of this Agreement and
may subject the breaching party to penalties up to and including termination
of this Agreement or any subcontract.
c. Right to Inspect. Each Party retains the legal tight to inspect the papers of
any employee who works on this Agreement or any subcontractor to ensure
compliance with the warranty given above.
d. Random Verification. Either Party may conduct a random verification of the
employment records of the other to ensure compliance with this warranty.
e. Federal Employment Verification Provisions — No Material Breach. A Party
will not be considered in material breach of this Agreement if it establishes
that it has complied with the employment verification provisions prescribed
by 8 USCA §1324(a) and (b) of the Federal Immigration and Nationality Act
and the E-Verify requirements prescribed by A.R.S. §23-214(A).
f. Inclusion of Article in Other Contracts: The provisions of this Article must
be included in any contract either Party enters into with any and all of its
contractors or subcontractors who provide services pursuant to this
Agreement

IN WITNESS WHEREOF, the Parties hereto have caused these presents to be executed
by their duly authorized officers. (The order for obtaining the signatures is as follows: the MAG
General Counsel, the appropriate representative of Maricopa County, and the MAG Executive
Director).
MAG:
Maricopa Association of Governments, an
Arizona non-profit Corporation
By:
Date Dennis Smith
Executive Director
Maricopa County
Jurisdiction of Maricopa County, a Body Politic
and • Corporate of the State of Arizona
Recommended By:
Date J uskins, P.E., PWLF
Transportation Director
Approved By:
Date Its: Chairman, Board of Supervisors
EST:
Date Fran McCarron
Clerk of the Maticopa County Board
Approved as to form: Approved as to form:
By: By:
MAG General Counsel Attorney for Maticopa County BOS
PHOENIX 53637-1 95023v1