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G30233
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FIRST AMENDMENT TO INTERGOVERNMENTAL AGREEMENT
FOR THE USE OF REAL PROPERTY BY AND BETWEEN
MARICOPA COUNTY AND EAST VALLEY INSTITUTE OF TECHNOLOGY
RECITALS
A.
Maricopa County, a political subdivision of the state of Arizona (“County”), and East
Valley Institute of Technology, a political subdivision of the state of Arizona (“EVIT”),
are parties to that certain Intergovernmental Agreement dated July 7, 2021 (“IGA” or
“Agreement”). EVIT owns and operates certain real property which is located at 1601
West Main St., Mesa, Arizona 85201 (“Property”). County desires to use that portion of
the Property described and depicted on Exhibit "B" attached hereto and incorporated herein
by this reference which represents approximately 5,350 square feet of rentable space in
addition to the exterior playground space located off the Head Start classrooms
("Premises"). The County and EVIT may be referred to herein collectively as ("Parties")
and individually as a ("Party”).
B.
The term of the Agreement expires June 30, 2024.
C.
EVIT and County now mutually desire to enter into this First Amendment to the Agreement
(“Amendment”) to amend the Agreement to: (a) approve additional County tenant
improvements, (b) modify and extend the term; (c) modify fees for property use; (d) modify
conflicts; termination; (e) correct sections with misnumbered provisions; and (f) update
counterparts.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, receipt and sufficiency of which is hereby acknowledged, EVIT and County
agree to amend the Agreement as follows:
1.
The Recitals, by this reference, are hereby incorporated into this Amendment.
2.
Capitalized terms used in this Amendment without definition shall have the meanings
assigned to such terms in the Agreement, unless the context expressly requires otherwise.
3.
EVIT authorizes County to make improvements to the Premises that are listed in Exhibit
“J” to this Amendment (“Additional Tenant Improvements”), which is attached hereto and
made a part hereof. Additional Tenant Improvements are the property of the County.
County may, in its sole discretion, abandon the Additional Tenant Improvements or remove
said Additional Tenant Improvements and restore the Premises to its original condition,
ordinary wear and tear excepted.
3.1
County shall be financially responsible for all costs associated with design,
permitting, purchase, and installation of the work associated with the Additional
Tenant Improvements in an amount no greater than three hundred and five thousand
dollars and 00/100 ($305,000).
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3.2
County shall be responsible for performing the work required to complete the
Additional Tenant Improvements. All work must conform to and be in substantial
accordance with the quality and appearance of the improvements in the remainder of
the Property.
3.3
Prior to the commencement of the Additional Tenant Improvements, County shall
ensure the contractor working on the Additional Tenant Improvements has purchased
and maintains throughout construction all standard insurance coverage at levels
standard in the industry from a company or companies duly licensed by the State of
Arizona and require its subcontractors to maintain equivalent insurance based in their
trade and participation in the work.
3.4
The Parties will execute the Memorandum of Commencement Date of Extension
Period, in substantially the same format as Exhibit “K”, which is attached hereto and
made a part hereof upon the County’s acceptance, in its sole discretion, of the
Additional Tenant Improvements as complete on the date as referred to in Exhibit
“K” (“Commencement Date of Extension Period”).
3.5
County hereby designates Bryan Jorgenson as its representative and agent for the
purpose of questions associated with the Additional Tenant Improvements.
Maricopa County Facilities Management Department
Attn: Bryan Jorgenson
401 W Jefferson Street
Phoenix, Arizona 85003
602-292-5171
Bryan.Jorgenson@maricopa.gov
4.
As of the date of full execution of the Memorandum of Commencement Date of Extension
Period, Section 3 of the Agreement will be deleted in its entirety and replaced with the
following:
3.
Term. The term of the Agreement shall be extended beginning on the
Commencement Date of Extension Period and expiring ten (10) years later
(“Extension Period”).
3.1 Option to Renew. Provided this Agreement, as amended, is in full force and
effect and County is not in default under any of the terms and conditions of this
Agreement, as amended, at the time of notification of its desire to renew, EVIT
hereby grants County two (2) options to extend this Agreement, as amended,
for a period of five (5) years each (each, an “Option”) on the same terms and
conditions of this Agreement, as amended, unless otherwise agreed to by the
Parties in writing.
3.2 Exercise of Option. If County elects to exercise an Option, County shall
provide EVIT with written notice no later than the date which is at least ninety
(90) days prior to the expiration of this Agreement or an Option, as the case
may be.
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5.
Section 5 of the Agreement shall remain the same during the term; therefore, the all-
inclusive fee for the use of the Premises and ancillary portions of the Property is twenty-
five thousand dollars ($25,000) per annum, payable quarterly, within thirty (30) days of
receipt of an invoice from EVIT. As of the date of full execution of the Memorandum of
Commencement Date of Extension Period, Section 5 of the Agreement will be deleted in
its entirety and replaced with the following:
5.
Fees for Property Use.
5.1 During the Extension Period, the all-inclusive fee for the use of the Premises
and ancillary portions of the Property is twenty-five thousand dollars ($25,000)
per annum, payable quarterly, within thirty (30) days of receipt of an invoice
from EVIT (“Use Fee”).
5.2 During each exercised Option entered into and agreed to by the Parties, the
annual Use Fee will increase by 10% as shown below in the Use Fee Schedule
and shall be payable quarterly within thirty (30) days of receipt of an invoice
from EVIT.
Use Fee Schedule
Term
Annual Use Fee
Extension Period
$25,000
First Option
$27,500
Second Option
$30,250
6.
Section 12 of the Agreement will be deleted in its entirety and replaced with the following:
12. Conflicts; Termination.
12.1 The Agreement is subject to cancellation pursuant to the provisions of A.R.S. §
38-511, the provisions of which are incorporated herein by this reference.
12.2 This Agreement may be terminated by County at the end of any fiscal year due
to non-appropriation of funds without any penalty or liability to County.
12.3 Until the Commencement Date of Extension Period, this Agreement may be
terminated by either Party for any reason provided that written notice is given
to the other at least ninety (90) days prior to the effective date of such
termination ("Early Termination").
12.4 After the Commencement Date of Extension Period, Section 12.3 above shall
be deleted in its entirety and replaced with the following:
12.3 During the Extension Period either Party may terminate this Agreement
at any time after seven (7) years of the Extension Period upon giving 12-
months’ written notice to the other Party. In the event either Party
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terminates this Agreement during the Extension Period or Option hereof,
the fee theretofore paid by County shall be prorated based on the number
of days remaining in the final month of occupancy. EVIT shall refund
the prorated amount to County within thirty (30) days after termination.
7.
Section 13 of the Agreement is numbered incorrectly. The numbering sequence only, not
the provisions, will be corrected in its entirety and replaced with the following:
13. Default.
13.1 Each of the terms in this Agreement is considered material and failure to
perform any of them shall constitute a breach of this Agreement. Either Party
shall have the right to terminate this Agreement if the other Party does not,
within thirty (30) days of receipt of a written notice thereof, cure any terms in
default. Notwithstanding the foregoing, if the nature of the breach cannot be
cured within said thirty (30) day period, the noticing Party shall not have the
right to terminate this Agreement if the other Party commences the cure within
the thirty (30) period and pursues the cure to completion within thirty (30) days
or such time period as agreed to by the Parties.
13.2 Neither Party shall be considered to be in default in the performance of any of
the obligations hereunder, other than obligations to either Party to pay costs and
expenses, if failure of performance shall be due to an uncontrollable force. The
term “uncontrollable force” shall mean any cause beyond the control of the
Party affected, including but not limited to failure of facilities, flood,
earthquake, tornado, storm, fire, lightning, epidemic, war, riot, civil disturbance
or disobedience, labor dispute, and action or non-action by or failure to obtain
the necessary authorizations or approvals from any governmental agency or
authority or the electorate, labor or material shortage, sabotage and restraint by
court order or public authority, which by exercise of due diligence it shall be
unable to overcome. Nothing contained herein shall be construed so as to
require either Party to settle any strike of labor dispute in which it may be
involved. Either Party rendered unable to fulfill an obligation by reason of an
uncontrollable force shall exercise due diligence to remove such inability with
all reasonable dispatch. If either Party claims its failure to perform was due to
an uncontrollable force, that Party shall bear the burden of proof that such
activity was within the meaning and intent of this section, if such claim is
disputed by either Party.
8.
Section 14 of the Agreement is numbered incorrectly. The numbering sequence only, not
the provisions, will be corrected in its entirety and replaced with the following:
14. Disputes.
14.1 The Parties shall confer within thirty (30) days of receipt of a notice of dispute
to resolve the dispute and/or decide, within ten (10) days after conferring on a
mutually acceptable arbiter. If a mutually acceptable arbiter cannot be agreed
upon within thirty (30) days after conferring, the Parties agree that each Party
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shall name one (1) arbiter and those two (2) arbiters shall select a third arbiter.
Any decisions made shall be made by a majority of the panel of three arbiters.
14.2 If any Party decides to proceed to arbitration in lieu of terminating this
Agreement, arbitration shall be binding. The cost of any arbitration shall be
shared equally by the Parties.
9.
Section 15 of the Agreement is numbered incorrectly. The numbering sequence only, not
the provisions, will be corrected in its entirety and replaced with the following:
15. Notices. All notices herein required to be given in writing shall be sent:
To County:
Maricopa County Real Estate Department
Attn: Director
2801 W. Durango Street
Phoenix, Arizona 85009
With a copy to:
Maricopa County Human Services Department
Early Education Division
Attn: Assistant Director
234 North Central, 3rd Floor
Phoenix, Arizona 85004
Invoices shall be sent to:
HSDFinance@maricopa.gov
To East Valley Institute of Technology:
East Valley Institute of Technology
Attention: Dr. Chad Wilson, Superintendent
1601 W Main Street
Mesa, AZ 85201
15.1 Notice Requirements. All notices required or permitted by this Agreement or
applicable law shall be in writing and may be delivered in person (by hand or
by courier) or may be sent by first class, certified 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 section. The addresses specified in this
section shall be that Party’s address for delivery or mailing of notices. Any
Party may, by written notice to the others, specify a different address for notice.
15.2 Date of Notice. Any notice sent by 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 first class mail, the
notice shall be deemed given 72 hours after the same is addressed as required
herein and mailed with postage prepaid. Notices delivered by United States
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Express Mail or overnight courier that guarantee next day delivery shall be
deemed given 24 hours after delivery of the same to the Postal Service or
courier.
10.
Section 28 of the Agreement shall be deleted in its entirety and replaced with the following:
28. Counterparts. 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 one and the
same instrument. Electronic signatures shall have the same force and effect as original
signatures.
11.
This Agreement, as amended, shall be effective when fully executed by the Parties.
12.
The foregoing paragraphs contain all the changes made by this Amendment. All other
terms and conditions of the original Agreement remain the same and in full force and effect,
except as herein amended.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the last date written
below.
COUNTY:
Maricopa County, a political subdivision of the State of Arizona
____________________________________
Bill Gates
Chairman of the Board of Supervisors
ATTEST:
____________________________________
Clerk of the Board
Date
APPROVED as to FORM:
____________________________________
Deputy County Attorney
Date
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EVIT:
East Valley Institute of Technology, a political subdivision of the state of Arizona
__________________________________________
Dr. Chad Wilson, Superintendent
Date
APPROVED as to FORM:
__________________________________________
Kevin Koelbel, Attorney for EVIT
Date
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Exhibit “B”
Premises
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Exhibit “B” (continued)
Premises
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Exhibit “J”
Additional Tenant Improvements
Program: Maricopa County Human Services Department – Early Education Division
Project Request #22-203 – East Valley Institute of Technology – Building 4
Project Description:
Playground
•
Upgrade the irrigation system for the entire playground and put it on a separate control system
•
Replace existing wood picket fence with a 5’ high picket fence with gate and latch
•
Plant Mesquite tree in center of the circle
•
Replace pour-n-play and add large square post pads
•
Remove sandbox – replace with sod
Interior
• Replace existing broadloom carpet with carpet tiles
• Replace existing flooring with VCT tiles
• Replace millwork in all classrooms with new cabinets to be lockable with no pulls
• Replace faucets with touchless faucets and install drinking fountain filters
• New half door to be installed
Add. Alternate
• Replace millwork at the information desk and office
Project Site Plans:
See next page
Project Budget:
Amount no greater than $305,000
By signing below, each party acknowledges and concurs with the scope of this project and agrees that work
may begin.
Contractor
Signature
Date
Owner
Signature
Date
Operator
Signature
Date
Maricopa County Human
Signature
Date
Services Department
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Exhibit “J”
Additional Tenant Improvements
Project Site Plans
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Exhibit “K”
Memorandum of Commencement Date of Extension Period
This Memorandum of Commencement Date of Extension Period is between East Valley Institute of
Technology, a political subdivision of the State of Arizona (“EVIT”), and Maricopa County, a political
subdivision of the State of Arizona (“County”).
The Parties have agreed to execute this Memorandum of Commencement Date of Extension Period to
specify the Commencement Date of Extension Period, as it relates to the completion of the Additional
Tenant Improvements of Premises.
NOW, THEREFORE, the Parties hereto confirm and agree as follows:
1) The Commencement Date of Extension Period of the Agreement is ___________
2) The expiration date of the Extension Period of the Agreement is ___________
IN WITNESS WHEREOF, the Parties have executed this Memorandum of Commencement Date of
Extension Period, as of the dates written below.
EVIT:
East Valley Institute of Technology
__________________________________________
Dr. Chad Wilson, Superintendent
Date
COUNTY:
Maricopa County
___________________________________
Director,
Date
Maricopa County Real Estate Department
APPROVED AS TO FORM:
____________________________
Deputy County Attorney Date