IGA WITH CITY OF PHOENIX FOR MARICOPA AND SUN CIRCLE TRAILS.PDF
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IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 1 WHEN RECORDED MAIL TO: Maricopa County Parks and Recreation 41835 N. Castle Hot Springs Road Morristown, AZ 85342 INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND CITY OF PHOENIX C-_________________ CITY #______________ THIS INTERGOVERNMENTAL AGREEMENT, hereinafter referred to as “AGREEMENT,” is made and entered into between the Maricopa County, a political subdivision of the State of Arizona, hereinafter referred to as the “COUNTY,” and the City of Phoenix, a municipal corporation, hereinafter referred to as the “CITY,” together hereinafter referred to as the “PARTIES” or individually as a “PARTY.” WITNESSETH RECITALS WHEREAS, the CITY and the COUNTY are authorized to enter into this AGREEMENT pursuant to A.R.S. § 11-951 et seq.; and, WHEREAS, the COUNTY, through its Parks and Recreation Department, provides recreational opportunities and programs to the public; and WHEREAS, the CITY, through its Parks and Recreation Department, provides recreational opportunities and programs, including off street non-motorized multiuse paths, within the corporate limits of the CITY; and WHEREAS, the CITY and the COUNTY previously entered into that certain Intergovernmental Agreement recorded as Document Number 2008-0158099 in the Office of the Maricopa County Recorder, Maricopa County, Arizona, which began on February 6, 2008 and expired on February 5, 2018 to: (1) improve and lengthen the CITY’s National Trail through the CITY’s South Mountain Park (“Park”) and Pima Canyon area; and (2) designate the improved National Trail alignment through the Park as a co-located alignment with the COUNTY’S Maricopa and Sun Circle Trails, hereinafter referred to as “TRAIL”; and WHEREAS, the COUNTY desires to continue to designate that portion of the National Trail alignment through the Park and the connecting trail east and west as the co-located alignment of the COUNTY’S Trail depicted on Exhibit A attached hereto and made a part hereof (EXISTING TRAIL ALIGNMENT); and WHEREAS, the TRAIL provides an alternative transportation route through the CITY to Estrella Mountain Regional Park Mountain; and WHEREAS, the PARTIES desire to enter into this IGA to set forth each PARTY’S understandings and agreements related to the TRAIL designation within the CITY’S jurisdiction. IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 2 AGREEMENT NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, and mutual promises and agreements of the PARTIES herein, it is agreed as follows: TERMS AND CONDITIONS 1. INCORPORATION OF RECITALS The Recitals, by this reference, are hereby incorporated into this AGREEMENT. 2. PERMITTED USE The CITY hereby grants the COUNTY the right to co-locate its TRAIL in the CITY’S PARK as depicted on Exhibit A. 3. RESPONSIBILITIES A. The COUNTY will: i. Provide, install, and maintain TRAIL signage, on CITY signposts along the TRAIL only as approved by the CITY and depicted on Exhibit A and on Exhibit B, attached hereto and made a part hereof. ii. Post maps on the Maricopa County Parks website designating the co-located TRAIL and National Trail segment. iii. Subject to required approvals and in COUNTY’S sole discretion, review the possibility of partnering with and/or supporting the CITY in future efforts to secure funding for TRAIL improvement projects. iv. Notify the City’s South Mountain Park management in a timely manner for any planned or known activities, projects or programs occurring on the TRAIL within the CITY’s corporate boundaries. B. The CITY will: i. Maintain access to the TRAIL within the CITY’S corporate boundaries. Portions of the TRAIL may be temporarily closed to conduct maintenance activities or if the conditions of the TRAIL may endanger the public’s health and safety. ii. Support the TRAIL segment within the CITY'S corporate boundaries by operation and maintenance of that segment of the TRAIL to include incorporation of the TRAIL into the CITY'S South Mountain Park Master Plan. iii. Ensure that the TRAIL shall continue to be part of the CITY'S South Mountain Park Master Plan. iv. Encourage and support, through future funding opportunities as they become available, any improvements to the surfacing along the TRAIL. v. Provide emergency services as needed along the TRAIL as defined by the current policies and agreements of the CITY, as modified from time-to-time in the sole discretion of the CITY. vi. Notify the TRAIL manager or Maricopa County Park’s management of any planned or known activities, projects, or programs that may have an impact on the TRAIL. vii. Subject to required approvals and in the CITY’s sole discretion, review the possibility of partnering with and/or supporting the COUNTY in future projects. 4. ADMINISTRATIVE ACTIONS IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 3 As this AGREEMENT may require administrative action, from time to time to carry out the intent of the AGREEMENT, the COUNTY’s Director of Parks and Recreation and CITY’s Director of Parks and Recreation, or their designees, may administer the AGREEMENT. 5. TERM OF AGREEMENT The term of this AGREEMENT shall begin on the date of execution of the AGREEMENT by all PARTIES and shall be perpetual unless earlier terminated as provided herein. 6. TERMINATION This AGREEMENT may be terminated by: A. Either PARTY: i. For any reason or for no reason by giving written notice as required under Section 13 hereinafter at least thirty (30) days prior to the effective date of said termination; or ii. At the end of any fiscal year due to non-appropriation of funds without any penalty or liability to either PARTY. Each PARTY agrees to use its best efforts to give notice of such termination to the other PARTY at least thirty (30) days prior to the end of its then-current fiscal period. Termination in accordance with this provision will not constitute a breach of this AGREEMENT by the COUNTY or CITY. Neither PARTY shall be entitled to any compensation, damages or other remedy from the COUNTY or CITY if this AGREEMENT is terminated pursuant to the terms of this section. B. Upon termination of this AGREEMENT, the COUNTY shall remove any equipment or other personal property it owns that is used in performance of this AGREEMENT from the TRAIL and: i. COUNTY shall: (1) remove any COUNTY signs from the TRAIL; (2) leave the TRAIL in a clean and safe condition, normal wear and tear excepted; and (3) remove the alignment from the Maricopa County Parks and Recreation website and Park maps for the TRAIL. ii. CITY shall remove any reference to the TRAIL from any CITY published materials depicting the portion of the TRAIL within the alignment set forth in Section 2 of this AGREEMENT. 7. ASSIGNMENT AND DELEGATION Neither PARTY may assign any rights hereunder without the express written prior consent of the other PARTY. 8. DISPUTES This AGREEMENT shall be subject to arbitration as maybe required by A.R.S. § 12-1518. A notice of a dispute must be provided in writing to the other PARTY and provide a summary of the issue that is the subject of the dispute. A. 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 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. B. 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. IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 4 9. CONFLICT OF INTEREST The PARTIES acknowledge that this AGREEMENT is subject to A.R.S. § 38-511, the provisions of which are incorporated herein by this reference and may be canceled by either PARTY pursuant thereto without any penalty or liability to the other PARTY. 10. ENTIRE AGREEMENT This AGREEMENT, together with any exhibits attached hereto and any agreements executed contemporaneously herewith, constitutes the entire agreement of the PARTIES hereto. There are no representations or provisions other than those contained herein. This AGREEMENT shall not be amended or modified, in any manner, except by an instrument in writing, signed by the PARTIES hereto. The PARTIES agree to act in good faith and with fair dealing with one another in the execution, performance, and implementation of the terms and provisions of this AGREEMEMNT. Whenever the consent, approval or other action of a PARTY is required under any provision of this AGREEMENT, such consent, approval or other action shall not be unreasonably withheld, delayed or conditioned by a PARTY unless the provision in question expressly authorizes such PARTY to withhold or deny consent or approval or decline to take action in accordance with a different standard, in which case the consent or approval or the decision to not take action may be withheld, delayed or conditioned in accordance with the different standard. 11. INVALIDITY OF PART OF THIS AGREEMENT The PARTIES agree that should any part of this AGREEMENT be held to be invalid or void, the remainder of the AGREEMENT shall remain in full force and effect and shall be binding upon the PARTIES. 12. VENUE; GOVERNING LAW The proper venue for any proceeding at law or in equity or under the provisions for dispute resolution/arbitration shall be Maricopa County, Arizona. This AGREEMENT shall be construed under the laws of the State of Arizona and incorporates by reference, all laws governing the interagency agreements and mandatory contract provisions of State agencies required by statute or executive order. 13. NOTICES All notices under this AGREEMENT, including request for reimbursement, and payments on such requests shall be in writing, emailed, mailed by U.S. Postal Service, postage prepaid, or delivered to the PARTIES to receive such notice, and shall be sent to the following individuals: For the CITY: Ms. Cynthia Aguilar, Director Parks and Recreation Department Phoenix City Hall 200 W. Washington Street, 16th Floor Phoenix, AZ 85003 Phone: (602) 262-6862 Email: cynthia.aguilar@phoenix.gov For the COUNTY: Maricopa County Parks and Recreation Department Attn: Director 41835 N. Castle Hot Springs Road Morristown, Arizona 85342 (602) 506-9500 Email: rj.cardin@maricopa.gov IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 5 With a copy to: Maricopa County Real Estate Department Attn: Director 2801 W. Durango Street Phoenix, Arizona 85009 Email: mike.smith@maricopa.gov Any PARTY may change the address to which notices, including request for reimbursement, and payments hereunder are to be delivered by giving the other PARTY notice in the manner herein set forth. 14. COMPLIANCE WITH NON-DISCRIMINATION LAWS The PARTIES agree to comply with all applicable state and federal laws, rules, regulations and executive orders governing equal employment opportunity, non-discrimination, and affirmative action in the exercise of their respective rights and responsibilities set forth in this AGREEMENT. 15. INDEMNIFICATION 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 the negligent performance of this AGREEMENT, 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. 18. INSURANCE COUNTY and CITY acknowledge and agree that the PARTIES to this AGREEMENT are each self-insured. During the entire time that this AGREEMENT is in force, each PARTY, at its sole cost and expense, shall carry and maintain levels of Commercial General Liability, Automobile Liability, Worker’s Compensation insurance, Property, and Environmental/Pollution Insurance coverages that are considered standard for each PARTY’S use. If any part of this AGREEMENT is contracted or subcontracted, the contracting PARTY must require its contractor(s) and subcontractor(s) to name the other PARTY as an additional insured to the same extent that contracting PARTY is named as an additional insured as required under the contract. 19. NONLIABILITY OF OFFICIALS AND EMPLOYEES No official, representative, agent, attorney or employee of the CITY shall be personally liable to COUNTY, or to any successor in interest to COUNTY, in the event of any default by the CITY or for any amount which may become due to COUNTY or successor, or with respect to any obligation of the CITY under the terms of this AGREEMENT. No official, representative, agent, attorney or employee of the COUNTY shall be personally liable to the CITY, or any successor in interest to the CITY, in the event of any default by the COUNTY for any amount which may become due to the CITY or successor, or with respect to any obligation of the COUNTY under the terms of this AGREEMENT. 20. E-VERIFY To the extent applicable under A.R.S. §41-4401, each PARTY and its contractors and subcontractors warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with the E-verify requirements under A.R.S. §23-214(A). A breach of the above-mentioned warranty by any PARTY or its contractors or subcontractors shall be deemed a material breach of the AGREEMENT and may result in the termination of the AGREEMENT by the non-breaching PARTY. Each PARTY retains the legal right to randomly inspect the papers and records of the other PARTY’S or its contractors' or subcontractors' employees who work on IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 6 the project to ensure that the other PARTY and its contractors and subcontractors are complying with the above- mentioned warranty. 21. AGREEMENT AS LICENSE The PARTIES intend and mutually agree that this AGREEMENT shall be construed as a mere license for COUNTY and the public to use the TRAIL. This AGREEMENT shall not be construed as a lease, sublease, rental agreement or easement. It is understood and mutually agreed that COUNTY has no ownership interest whatsoever in the TRAIL or the land upon which it is located. 22. COUNTERPARTS This AGREEMENT may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto are upon the same instrument. IN WITNESS WHEREOF, the CITY and COUNTY have executed this AGREEMENT as of the dates set forth below. CITY OF PHOENIX MARICOPA COUNTY Cynthia Aguilar Date Jack Sellers Date Parks and Recreation Director Chairman Board of Supervisors ATTEST ATTEST City Clerk Date Clerk of the Board Date Approved as to Form: Approved as To Form: City Attorney Date Deputy County Attorney Date IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 7 IGA with Phoenix Parks and Recreation Department Sun Circle and Maricopa Trail South Mountain Page 8