REVENUE AGREEMENT NORTHERN PARKWAY - DYSART OVERPASS 11-6-2013.PDF

ON GE MOVE
1VIARICOPA
ASSOCIATION of
\ GOVERNMENTS
MARICOPA ASSOCIATION OF GOVERNMENTS
ARTERIAL LIFE CYCLE PROGRAM
PROJECT AGREEMENT
Northern Parkway: Dysart Overpass
Project Agreement No. 14-NOR-1 0-03-E
RTP Project # ACI-NOR-10-03-E
MAG TIP Project # MMA14-113D2Z, MMA16,113DZ, MMA16-113CZ, MMA16-113CZ2
Maticopa County Transportation Improvement Plan Project #T427
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, which it is executed by the Maricopa County Board of Supervisors and the
MAG Executive Director. MAG and Maticopa 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
June 19, 2013, the Regional Council approved the 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
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applicable, and upon the presentation of an invoice approved or reviewed with concurrence by MAG as
provided in this Agreement.
E. The ALCP includes an arterial capacity improvement project on Northern Parkway at Dysart
Road (Project). The Project is described in greater detail in the Project Overview (Project Overview)
submitted by Maricopa County, dated September 10, 2013 and on file in the offices of Maricopa County
and MAG. The regional share in this agreement and the Project Overview is subject to change in the
annually adjusted ALCP.
F. The Project will be designed and constructed in accordance with the standards adopted by
Maricopa County or as otherwise specified the Intergovernmental Agreement between the Cities of El
Mirage, Glendale, and Peoria, dated December 26, 2008.
G. The regional reimbursement schedule for the Project is as follows:
Fiscal Year of Regional Type of Fiscal Year for
Type of Work Work Reimbursement Reimbursement Funds Reimbursement
DES 2015 $200,000.00 STP-MAG 2016
DES 2016 $2,449,399.00 STP-MAG 2017
CONST 2016 $10,000,000.00 STP-MAG 2017
CONST 2016 $10,707,494.00 STP-MAG 2018
Total Programmed for Reimbursement $23,356,893.00 STP-MAG
H. The regional reimbursement is expressed in 2011 dollars, and may be adjusted annually for
inflation based on the current Regional Council approved ALCP. Adjusted costs will be incorporated into
the ALCP and by reference into this Agreement. Cost adjustments, for inflation and as otherwise
specifically provided in the Policies and Procedures, do not require a modification of this Agreement.
I. 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 MA G for the design, acquisition of right of way, construction, 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;
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b. Provide to Maricopa County the required format for submitting requests for payment,
invoices, progress reports, and backup documentation;
c. Review and approve invoices for projects to be reimbursed with Regional Area Road
Funds or review and 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 and schedule as noted in the Recitals, Section G. The basis for
payment to Maricopa County shall be reimbursement for costs in conformance with the
ALCP and the Policies and Procedures.
2. Maricopa County's Responsibilities. Maricopa County agrees to:
a. Unless noted otherwise in and IGA: 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), award contract(s) for
construction pursuant to the applicable laws, and provide necessary construction
management and inspections; 4) if necessary, purchase or condemn right of way
required for the completion of the Project; 5) be responsible for all utility relocations,
and 6) review and approve invoices from its contractors and subcontractors before
submitting invoices to MAG and ADOT;
b. Work with the other jurisdictions involved in the Project pursuant to the terms of
the IGA between Maricopa County and the Cities of El Mirage, Glendale, and
Peoria, dated December 26, 2008, and on file in the office of the Maricopa County's
Clerk of the Board. The other jurisdictions that are signers to the IGA for this
Project are: the City of El Mirage, the City of Glendale, and the City of Peoria;
c. 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 $23,356,893.00 (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, which may be adjusted annually for
inflation pursuant to the procedure set forth in the Policies and Procedures and the
current Regional Council approved ALCP;
g. Provide invoices and progress reports to MAG pursuant to the project schedule
provided in the Project Overview; and
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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 construction, 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 right to terminate this
Agreement in the event that Maricopa County determines, in its reasonable discretion, that
local funds are not available to meet Maticopa 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 Maricopa County will provide such notice, as is
practicable.
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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 (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, attorneys 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 Indemnitor, or
anyone for whom Indernnitor 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 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. Upon date of execution by the MAG Executive Director, the
Maricopa County shall receive three signed copies of the agreement within 14 days of
execution.
4. ARIZONA LAW. This Agreement shall be governed and interpreted according to the laws of
the State of Arizona.
a. The Parties warrant that they are in compliance with A.R.S. § 41-4401 and further
acknowledge that:
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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. §
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;
That 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;
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;
iv. Nothing in this Agreement shall make any contractor or subcontractor an agent
or employee of the Parties to this Agreement.
b. The Parties warrant that they do not have scrutinized business operations in Sudan or
Iran, as prohibited by ARS 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.
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 Patties may substitute by
written notice, given in the manner prescribed in this paragraph.
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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
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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 right 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 Patty 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.
15. PROHIBITION OF DOING BUSINESS WITH SUDAN AND IRAN. Pursuant to
A.R.S. §§ 35-391.06 and 35-393.06, each Party certifies that it does not have a scrutinized
business operation, as defined in A.R.S. §§ 35-391 and 35-393, in either Sudan or Iran.
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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:
Dennis Smith
Date Executive Director
Maticopa County
Jurisdiction of Maricopa County, a Body Politic
and Corporate of the State of Arizona
Recommended By:
ci - ZG - Zo t5
Date 4r14-41auskins, P.E., PWLF
Transportation Director
Approved By:
Date Its: Chairman, Board of Supervisors
ATTEST:
Date Fran McCarron
Clerk of the Maricopa County Board
Approved as to form: Approved as to form:
By: By:
MAG General Counsel Attorney for Maricopa County BOS
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