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AGREEMENT NO.
INTERGOVERNMENTAL AGREEMENT BETWEEN CITY OF PHOENIX AND THE
CITY OF GLENDALE FOR THE INSTALLATION, OPERATION, AND MAINTENANCE
OF STREET LIGHTING ON 43RD AVENUE BETWEEN
BETHANY HOME ROAD AND GLENDALE AVENUE
CIPST85160015 (43RD Ave, Bethany Home Road to Glendale Avenue)
This Intergovernmental Agreement (“Agreement”) is entered into as of
, 20 (“Effective Date”), by and between the CITY OF PHOENIX
(“Phoenix”), an Arizona municipal corporation, and the CITY OF GLENDALE
(“Glendale”), an Arizona municipal corporation. Phoenix and Glendale are sometimes
referred to collectively as “Parties” and individually as a “Party.”
RECITALS
A.
The Cities are authorized pursuant to A.R.S. Sections 9-240 and 9-276 to lay out
and establish, regulate and improve streets within the respective Phoenix and Glendale
jurisdictions.
B.
ARIZ. REV. STAT. § 11-952(A) provides that public agencies may enter into
intergovernmental agreements for the provision of services or for joint/cooperative actions.
C.
PURPOSE OF THE AGREEMENT
The purpose of this Intergovernmental Agreement is to identify and define the
design, construction, maintenance, and funding responsibilities of the Parties for
the construction of street lighting along 43rd Avenue, which is part of a project to
install additional streetlights along 14 segments throughout the city, City of
Phoenix Project number ST85160015 (“the Project” herein referred to as the
PROJECT,
The PROJECT scope includes, but are not limited to, permitting, design,
construction, construction management and the perpetual maintenance of the
proposed street lighting system.
D.
Background of Agreement:
a. 43rd Avenue from Glendale Avenue to Bethany Home Road lies within
Phoenix city municipal limits. The Phoenix area of maintenance
responsibility is limited to the back of curb on the west side of the
roadway.
b. 43rd Avenue from Glendale Avenue to Bethany Home Road was
identified as one of the roadway segments in Phoenix that experiences
significant nighttime crashes and was included in a project to install
additional streetlights in 14 segments throughout the City to improve
traffic safety.
c. The PROJECT was determined to be eligible for Highway Safety
Improvement Program (HSIP) funding.
d. The Project is being designed and constructed using Phoenix staff and
their hired consultants.
e. The majority of the proposed streetlights will be located within the City of
Phoenix corporate boundary.
f. Seventeen (17) of the proposed streetlights on the west side of 43rd
Avenue will be located within the City of Glendale municipal boundary.
The exact number will be determined in the final approved plan set.
E.
On , 2024 Phoenix’s City Council approved
Ordinance as required by ARIZ. REV. STAT. § 11-952(F)—
which authorizes the City Manager to enter into this Agreement.
F.
The Parties understand the terms of this Agreement—having negotiated it
freely with sufficient time and opportunity to consult with an attorney—and now enter into it
voluntarily.
Now, therefore, for good and valuable consideration, Phoenix and Glendale agree as
follows:
AGREEMENT
I. Responsibilities
1.
Definitions: The defined terms under this Agreement are as follows:
1.1
“Project” means construction of streetlights in 14 segments as defined
in project documents for City of Phoenix project number ST85160015.
2.
Phoenix’s Responsibilities. Phoenix’s responsibilities under this
Agreement are as follows:
2.1
Phoenix shall act as the lead agency for all aspects of the Project,
including, but not limited to, funding, design, environmental clearance, utility coordination,
right-of-way clearance, permit acquisition, and construction.
2.2
Phoenix shall design and construct the Project located within the city
of Phoenix limits to Phoenix Supplements and MAG Uniform Standard Specifications and
Details for Public Works Construction.
2.3
Phoenix shall design and construct the streetlights being located
within Glendale City Limits to Glendale supplied standards and details and MAG Uniform
Standard Specifications and Details for Public Works Construction.
2.4
Phoenix shall provide Glendale with copies of design plans for review,
comment, and approval of the design of the streetlights within Glendale.
2.5
Phoenix shall be solely responsible for all actual and incurred costs of
the Project, including but not limited to design, environmental clearance, permit
acquisition, utility relocation, and construction.
2.6
Phoenix shall issue no-cost traffic control permits to Glendale for any
traffic control required as part of regular maintenance and operations activities that will
impact roadway and traffic.
2.7
Phoenix’s contractor shall not enter another jurisdiction’s Right-of-
Way unless prior authorization is acquired.
2.8
Phoenix shall allow Glendale access for operation and maintenance of
the Streetlights after the completion of the PROJECT.
3.
Glendale’s Responsibilities. Glendale’s responsibilities under this
Agreement are as follows:
3.1
Glendale shall assume all operation and maintenance responsibility
and associated liability for all streetlights installed in Glendale right-of-way under this
Agreement., as noted in Attachment A.
3.2
Glendale shall apply to Phoenix for no-cost traffic control permits for
any operation and maintenance work that will impact the roadway and traffic.
3.3
Glendale shall review and provide comments to Phoenix with ten (10)
working days of receipt of the design plans.
3.4
Glendale shall issue no-cost permits to Phoenix for any necessary
Project-related work performed within Glendale right-of-way.
3.5
Glendale shall maintain and pay all utility costs associated with the
seventeen (17) streetlights on the west side of 43rd Avenue between
Bethany Home Road and Glendale Ave in perpetuity.
4.
Notices Between Parties. The Parties deem that any notice that one Party
gives, makes, or sends to any other Party under this Agreement is fully given, made, or
sent when that notice is either: (1) personally delivered, which includes delivering by
recognized courier service (such as Fed Ex and United Parcel Service); or (2) deposited in
the United States by postpaid certified mail, addressed as follows:
4.1
To Phoenix:
City of Phoenix, Street Transportation Department
Attn: Joseph T. Brown, Director
200 West Washington Street, 5th Floor
Phoenix, Arizona 85003-1611
Phone: 602-262-6136
E-mail: joseph.brown@phoenix.gov
4.2
To Glendale:
City of Glendale, Transportation Department
Attn: Tony Abbo, P.E., PTOE
6210 W. Myrtle Ave, Suite 112
Glendale, AZ 85301
Phone: (623) 930-2951
E-mail: tabbo@glendaleaz.com
By written notice, a Party may change its address to which another Party may give, make,
or send a notice.
II. Statutory Requirements
5.
Duration – A.R.S. § 11-952(B)(1). This Agreement will expire 30 years from
its Effective Date (above). 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.
6.
Purpose – A.R.S. § 11-952(B)(2). Phoenix and Glendale enter into this
agreement to jointly procure the scope of work provided in § I above. This work will serve
to install streetlights in 14 locations within the City of Phoenix and the City of Glendale.
7.
Termination – A.R.S. § 11-952(B)(4). This Agreement will terminate upon
the earliest occurrence of any of the following:
7.1
the Agreement reaches the end of its term;
7.2
Phoenix completes—and Glendale accepts—all services set forth in
the Scope of Work (“Services”), attached and incorporated by reference as Exhibit 1
7.3
Phoenix or Glendale terminates agreement upon furnishing the other
with a written notice at least 30 days before the effective termination date, with each Party
to bear its own costs and expenses to date of termination.
III. Standard Terms and Conditions
8.
Recitals and Captions: The Parties acknowledge that recitals set forth
above are true and correct, and are incorporated into this Agreement by reference. The
captions in this Agreement are merely for reference, and not to construe or limit the text.
9.
Governing Law and Jurisdiction. The laws of the State of Arizona will
govern this Agreement. Any citations to a statute in this Agreement refers to the version of
that statute in effect when the Parties execute this Agreement. ARIZ. REV. STAT. §§ 12-133
and 12-1518 may require arbitration of a dispute. Otherwise, the dispute is subject to the
jurisdiction of the Maricopa County Superior Court.
10.
Compliance with Laws. Phoenix and Glendale will comply with all
applicable federal, state, and local laws, ordinances, codes, rules, regulations, and
executive orders, including those governing equal employment opportunity, immigration,
nondiscrimination, and the Americans with Disabilities Act.
11.
Mutual Benefits. In making the promises contained in this Agreement, the
Parties agree that certain benefits and advantages will accrue for each Party by
performance of this Agreement, so they enter this Agreement in reliance on the mutual
benefits afforded each Party.
12.
No Adverse Inference. This Agreement shall not be construed more
strongly against one Party or the other. The Parties to this Agreement had equal access
to, input with respect to, and influence over the provisions of this Agreement. Accordingly,
no rule of construction which requires that any allegedly ambiguous provision be
interpreted more strongly against one Party than the other shall be used in interpreting this
Agreement.
13.
Successors and Assigns. The Parties bind themselves and their
successors, assigns, and legal representatives to this Agreement’s covenants. A Party
may not assign or otherwise transfer its interest in this Agreement without the other
Parties’ written consent.
14.
No Agency Created. Nothing in this Agreement: (1) creates any
partnership, joint venture, or agency relationship between the Parties; or (2) gives any
right or cause of action for the benefit of any person, firm, organization, or corporation that
is not a Party here.
15.
No Third-Party Beneficiaries or Agency. Nothing in this Agreement gives
any rights or benefits to anyone but the Parties. All duties and responsibilities undertaken
under this Agreement are for the exclusive benefit of Phoenix and Glendale—and not any
other party. This Agreement does not create a contractual relationship with any third party
or otherwise establish any third-party beneficiaries. No third party may enforce the terms
and conditions of this Agreement.
16.
Contract Cancellation. The Parties acknowledge that this Agreement is
subject to cancellation by the either Party pursuant to the provisions of ARIZ. REV. STAT. §
38-511.
17.
No Payment of Consideration for Agreement. Phoenix and Glendale
warrant that they have not paid or given—and will not pay or give—any third person any
money or other consideration for obtaining this Agreement.
18.
Entire Agreement. This Agreement expresses the full agreement and
understanding of the Parties, superseding all prior written or oral communications.
19.
Modification. No supplement, modification, or amendment of this
Agreement’s terms are effective unless in writing and signed by the Parties.
20.
Severability. If any provision or application of this Agreement is invalid or
illegal, then the Agreement’s remainder endures unaffected and enforceable to the fullest
extent permitted by law—so long as the severability does not defeat this Agreement’s
fundamental purposes.
21.
Counterparts. The Parties may sign this Agreement in counterparts, and
each counterpart will be effective and enforceable as though it were the original
agreement.
22.
Authority. Each Party represents and warrants that: (a) the person signing
this Agreement on the Party’s behalf is duly authorized and empowered to enter into and
execute the Agreement; and (b) all persons or entities affiliated with the Party are bound
by the terms of this Agreement.
23.
Default. In the event of default under this Agreement, the nondefaulting
Party will have all rights and remedies available to it at law or in equity. The exercise by
any Party of one or more such rights or remedies will not preclude that Party from
exercising—at a different time—any other rights or remedies for the same default or any
other default by the defaulting Party.
24.
Nonliability of Officials and Employees. In the event of any default or
breach by Phoenix or Glendale, no official or employee of Phoenix or Glendale will be
personally liable for any payments or other obligations due under this Agreement.
25.
No Waiver. A Party may not construe the failure or delay of another Party to
enforce—or require performance of—any of this Agreement’s provisions to be a waiver of
that provision. Such failure or delay will not affect the validity of any part of this Agreement
or the rights of the Parties to enforce every provision.
26.
Additional Documents/Actions. The Parties agree to execute and deliver
all documents and take all actions reasonably necessary to implement and enforce this
Agreement.
IV. Special Terms and Conditions
27.
Indemnity. Each Party (as “Indemnitor”) agrees to indemnify, defend, and
hold harmless the other Party (as “Indemnitee”) from and against any and all claims,
losses, liability, costs, or expenses (including reasonable attorney’s fees) (hereinafter
collectively referred to as “Claims”) arising out of bodily injury of any person (including
death) or property damage, but only to the extent that such Claims which result in
vicarious/derivative liability to the Indemnitee are caused by the act, omission, negligence,
misconduct, or other fault of the Indemnitor, its officers, officials, agents, employees, or
volunteers.
28.
Legal Worker Requirements. Glendale acknowledges that ARIZ. REV. STAT.
§ 41-4401 prohibits it from entering a contract for services with anyone who fails—or
whose subcontractors fail—to comply with e-verify requirements under ARIZ. REV. STAT. §
23-214(A). Glendale warrants its own compliance—and the compliance of each contractor
it uses—with ARIZ. REV. STAT. § 23-214(A) and all federal immigration laws and
regulations that relate to employed personnel. Breach of this warranty is a material breach
of the Agreement, subject to penalties including termination of the Agreement. Phoenix
retains the legal right to inspect the papers of any Glendale or contractor employee who
works under the Agreement to ensure that Glendale is complying with this warranty.
29.
Audit. Phoenix reserves the right to audit Glendale’s books, accounts,
reports, files, and other records concerning Glendale’s performance under this
Agreement. All records relating to this Agreement will be subject at all reasonable times to
inspection and audit by Phoenix for five years following this Agreement’s termination. For
that duration, Glendale will keep all records pertaining to this Agreement on a generally
accepted accounting basis and produce them at an office designated by Phoenix upon
request.
30.
Legal Worker Requirements. Phoenix acknowledges that ARIZ. REV. STAT.
§ 41-4401 prohibits it from entering a contract for services with anyone who fails—or
whose subcontractors fail—to comply with e-verify requirements under ARIZ. REV. STAT. §
23-214(A). Phoenix warrants its own compliance—and the compliance of each contractor
it uses—with ARIZ. REV. STAT. § 23-214(A) and all federal immigration laws and
regulations that relate to employed personnel. Breach of this warranty is a material breach
of the Agreement, subject to penalties including termination of the Agreement. Glendale
retains the legal right to inspect the papers of any Phoenix or contractor employee who
works under the Agreement to ensure that Phoenix is complying with this warranty.
31.
Audit. Glendale reserves the right to audit Phoenix’s books, accounts,
reports, files, and other records concerning Phoenix’s performance under this Agreement.
All records relating to this Agreement will be subject at all reasonable times to inspection
and audit by Glendale for five years following this Agreement’s termination. For that
duration, Phoenix will keep all records pertaining to this Agreement on a generally
accepted accounting basis and produce them at an office designated by Glendale upon
request.
[remainder of page intentionally left blank]
In witness whereof, Phoenix and Glendale, having carefully read and reviewed the
foregoing paragraphs, have executed this Agreement to be effective on the date first written
above.
IN WITNESS WHEREOF, the Parties have executed this Agreement.
CITY OF GLENDALE
Recommended by:
_______________________________
Kevin Phelps
Date
City Manager
Approved and Accepted by:
_____________________________
Jerry P. Weiers
Date
Mayor
Attest by:
_____________________________
Julie K. Bower
Date
City Clerk
APPROVAL OF CITY 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 City
by its respective governing body under the laws of the State of Arizona.
_________________________
Michael Bailey, City Attorney
CITY OF PHOENIX
Recommended by:
_______________________________
Joseph T. Brown
Date
Street Transportation Department Director
Approved and Accepted by:
_____________________________
Jeffery Barton, City Manager Date
Attest by:
_____________________________
Clerk of the Council
Date
APPROVAL OF CITY 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 City
by its respective governing body under the laws of the State of Arizona.
_________________________
City Attorney
INTERGOVERNMENTAL AGREEMENT DETERMINATION
In accordance with the requirements of A.R.S. § 11-952(D), each of the undersigned
attorneys acknowledge: (1) that they have reviewed the above Agreement on behalf of their
respective clients; and (2) that, as to their respective clients only, each attorney has determined that
this Agreement is in proper form and is within the powers and authority granted under the laws of
the State of Arizona.
_______________________________ _________________________________
RoseMarie Horvath
Michael Bailey, City Attorney
Attorney for City of Phoenix
Attorney for City of Glendale
ATTACHMENT A
NEW STREELIGHTS INSTALLED IN THE CITY OF GLENDALE RIGHT OF WAY