2024-09-25_9-24-24 - PC 997 -TT0633-SOUTHERN-AVE-STORM-DRAIN-MAINTENANCE-AGREEMENT.PDF

Docusign Envelope ID: 93B11F62-44AD-49F E-B566-6 1 E646F 5FF06

161658--0

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY AND THE CITY OF PHOENIX
FOR STORM DRAIN MAINTENANCE ON SOUTHERN AVENUE
FROM 51ST AVENUE TO EAST OF 46TH AVENUE
(TT0633)
(C-64-25-___-X-00)
This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a political
subdivision of the State of Arizona (County), and the City of Phoenix, a municipal corporation
(City), The County and City are collectively referred to as the Parties or individually as a Party.
STATUTORY AUTHORIZATION

1. The County is authorized, pursuant to Arizona Revised Statues (A.R.S.) §§ 11-251 and
28-6701 et seq., to lay out, maintain, control and manage public roads within the County.

2. The City is authorized, pursuant to A.R.S. §§ 9-240 and 9-276 et seq., to lay out and
establish, regulate, and improve streets within the City, and to enter into this Agreement.

3. Public agencies are authorized, pursuant to A.R.S. § 11-951 et seq., to enter into
Intergovernmental Agreements for the provision of services or for joint or cooperative
action.

BACKGROUND

4. The Parties previously entered into an Agreement (C-64-23-173-X-00), recorded at
Maricopa County Recorder No. 20220890402 (2022 Agreement), to improve Southern
Avenue from 51st Avenue to 37th Lane, including asphaltic concrete paving with a
raised median, bike lanes, curb and gutter, sidewalks, bus bay, ITS conduit, traffic
signals, street lighting, and new storm drains. The 2022 Agreement was effective on
December 7, 2022, the date it was approved by the Maricopa County Board of
Supervisors.

5. The Parties desire to enter into an Agreement to include maintenance and operation of
the storm drain on Southern Avenue, between 51st Avenue and east of 46th Avenue
(Project), the limits of which are illustrated in Exhibit A.

6. The City’s minimum standard for velocity in a storm drain is five feet per second (fps). The
joint project to improve Southern Avenue, from 51st Avenue to 37th Lane, includes
constructing a new storm drain. The City has agreed to a design exception to allow velocity
to be less than the City’s minimum standard of five fps.

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10.

11.

Silt is a fine sand, clay or other material carried by running water and may be deposited
as sediment within the storm drain after a storm event. Per this Agreement, an acceptable
silt level within the storm drain is 40%, or less, of pipe capacity, on average across the
length of the pipe.

The County will monitor and maintain the segment of the storm drain as identified in
paragraph 5, starting after final acceptance of the Project.

After the conclusion of the five-year (5) term, if the average silt level is less than the
acceptable range of 40% pipe capacity, then the terms of the Agreement are fulfilled, and
the City will be responsible for all maintenance and operations of the storm drain. If the
average silt level is greater than the acceptable range within or after the five-year (5) term,
the County will continue maintenance and operations of the storm drain.

PURPOSE OF THE AGREEMENT

The purpose of this Agreement is to establish the responsibility for storm drain
maintenance and operations on Southern Avenue, from 51st Avenue to east of 46th
Avenue, by both Parties.

TERMS OF THE AGREEMENT
Responsibilities of the County:

11.1. After final acceptance of the Project, perform a pipe inspection, with a video
camera, to evaluate the baseline percentage of silt level against the pipe capacity.
30 months after the final acceptance of the Project, perform a pipe inspection, with
a video camera, to evaluate the percentage of silt level against the pipe capacity.
60 months after final acceptance of the Project, perform a pipe inspection, with a
video camera, to evaluate the percentage of silt level against the pipe capacity.

11.2. Within the five-year (5) term of this Agreement, pursuant to paragraph 9 hereof, if
the silt level reaches an average 40% pipe capacity or higher, perform a pipe
inspection, with a video camera. Evaluate maintenance needs and perform any
necessary cleanout tasks.

11.3. Log maintenance concerns that have been received from the City in County Asset
Management Program.

11.4. Apply for no-cost permits from the City for any storm drainage-related work within
the Project area.

11.5, After the five-year (5) term of this Agreement, provide the City with a letter with the
maintenance log and three (3) videos of pipe inspections.

11.6. After the five-year (5) term of this Agreement, pursuant to paragraph 9 hereof,
accept maintenance and operations responsibility for the storm drain if the
evaluation results reflect the average silt level is above 40% pipe capacity.

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13.

14.

15.
16.

12.

11.7. After the five-year (5) term of this Agreement, coordinate with the City to complete
a final inspection of the pipe, if the evaluation results reflect the average silt level
is below 40% pipe capacity, generate a letter to the City’s Street Transportation
Director for the transfer of maintenance and operations responsibilities from the
County to the City.

11.8. Prior to the City accepting maintenance and operations responsibility, perform
necessary repairs and maintenance, including a final cleanout task to restore the
drain to full operations.

Responsibilities of the City:

12.1. Provide no-cost permits to the County, as applicable, for any storm drain cleanout-
related work within the Project area.

12.2. Notify the County if the City identifies that the storm drain within the Project area
needs maintenance.

12.3. After the five-year (5) term of this Agreement, receive and accept letter with the
maintenance log and three (3) videos of pipe inspections from the County
Transportation Director.

12.4, After the five-year (5) term of this Agreement, if the evaluation results reflect the
average silt level is below 40% pipe capacity, accept a letter from the County for
the transfer of maintenance and operations responsibilities from the County to the

City.

GENERAL TERMS AND CONDITIONS

To the extent permitted by law, each Party will indemnify, defend, and save the other Party
harmless, including any of the Party's departments, agencies, officers, employees, elected
Officials, or agents, from and against all liability, loss, expense, damage or claim of any
nature whatsoever which is caused by any activity, condition or event arising out of the
performance or nonperformance by the indemnifying Party of any of the provisions of this
Agreement, including but not limited to injuries or death of persons or damages to or
destruction of property. In the event of an action, the damages that are the subject of this
indemnity shall include costs, expenses of litigation, and reasonable attorney's fees.

This Agreement shall become effective as of the date it is executed by all the governing
bodies of the Parties and shall remain in full force and effect until all stipulations previously
indicated have been satisfied.

This Agreement may be amended only upon written Agreement by all Parties.

This Agreement is subject to the provisions of A.R.S. § 38-511.

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17.

18.

19.

The Parties warrant that they are following A.R.S. § 41-4401 and further acknowledge
that:

17.1. 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 (3) years, whichever is longer.

17.2 Any breach of the warranty shall be deemed a material breach of this agreement,
of which breaching party may be liable for penalties including termination of the
agreement.

17.3 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 to facilitate such an inspection.

17.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or
employee of the Parties to this Agreement.

Any contractor or subcontractor who engages in for-profit activity and has 10 or more
employees, if the value of the contract is a minimum of $1,000,000, certify it is not currently
engaged in and agrees for the duration of this Agreement to not engage in, a boycott of
goods or services from Israel. This certification does not apply to a boycott prohibited by
50 U.S.C. § 4842 or a regulation issued according to 50 U.S.C. § 4842.

Each Party warrants and certifies that no contractor or vendor under contract with the
Party to provide goods or services toward the accomplishment of the objectives of this
Agreement currently has, and for the duration of the contract will not, use:

19.1. The forced labor of ethnic Uyghurs in the People's Republic of China.

19.2 Any goods or services produced by the forced labor of ethnic Uyghurs in the
People's Republic of China.

19.3 Any contractors, subcontractors or suppliers that use the forced labor or any goods
or services produced by the forced labor of ethnic Uyghurs in the People's Republic
of China.

If any Party becomes aware during the term of the Agreement that any contractor or
vendor is not in compliance with this paragraph, the Party shall notify the other Party
within five business days after becoming aware of the noncompliance. Failure of the Party
to provide a written certification that the contractor or vendor has remedied the
noncompliance within one hundred eighty (180) days after notifying the public entity of its
noncompliance, this Agreement shall terminate unless the Term of this Agreement shall
end prior to said one hundred eighty (180) day period.

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20.

21.

22.

23.

24.

25,

It shall be a material breach of this Agreement for a Party to fail to observe or perform any
of the material covenants, conditions or provisions of this Agreement, where such failure
shall continue for a period of thirty (30) days after the non-defaulting Party provides the
defaulting Party with written notice of such failure; provided, however, that such failure
shall not be a Default if the defaulting Party has commenced to cure the Default within
such thirty (30) day period and thereafter is diligently pursuing such cure to completion.
The total aggregate cure period shall not exceed ninety (90) days unless the Parties
otherwise agree in writing. In the event of Default, the non-defaulting Party, at its option,
may terminate this Agreement without waiving any available remedies at law or in equity.

All notices required under this agreement to be given in writing shall be sent to:

Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch

2901 West Durango Street

Phoenix, Arizona 85009

City of Phoenix

Street Transportation Director (or Designee)
200 West Washington Street, 5th Floor
Phoenix, Arizona 85003

All notices required or permitted by this Agreement or applicable law shall be in writing
and may be delivered in person (by hand or courier) or may be sent by regular or certified
mail or U.S. Postal Service Express Mail, with postage prepaid, or by commercial delivery
service performed with receipt. 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 regular mail, the notice shall be deemed
given 72 hours after the notice is addressed as required in this paragraph and mailed with
postage prepaid. Notices delivered by the United States Express Mail or overnight delivery
service that guarantees next-day delivery shall be deemed given 24 hours after delivery
of the notice to the Postal Service or courier for delivery.

Any funding provided for in this Agreement, other than in the current fiscal year, is
contingent upon being budgeted and appropriated by the governing bodies of the Parties
in such fiscal year.

This Agreement shall be construed as a whole and under its fair meaning and without
regard to any presumption or other rule requiring construction against the party drafting
this Agreement.

The waiver by any Party of any right granted to it under this Agreement is not a waiver of
any other right granted under this Agreement, nor may any waiver be deemed to be a
waiver of a subsequent right obtained because of the continuation of any matter previously
waived.

Except as otherwise provided in this Agreement, all covenants, agreements,
representations, and warranties outlined in this Agreement, or any certificate or instrument
executed or delivered according to this Agreement shall survive the expiration or earlier
termination of this Agreement for a period of one (1) year.

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26.

27.

28.

29.

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 the same instrument. Electric
signatures are acceptable as original signatures.

The Parties will execute and/or deliver to each other such other instruments and
documents as may be reasonably necessary to fulfill the covenants and obligations to be
performed by such Party according to this Agreement.

The venue for any claim arising out of or in any way related to this Agreement shall be
Maricopa County, Arizona.

This Agreement shall be governed by the laws of the State of Arizona.

End of Agreement - Signature Pages Follow

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IN WITNESS WHEREOF, the Parties have executed this Agreement.

CITY OF PHOENIX

Recommended by:
“BA bb Sep 13, 2024
Brandy A. Kelso, P.E. Date

Street Transportation Director

Attest by:

Qa acteSald Sep 23, 2024
Denise Archibald Date
City Clerk

APPROVAL OF CITY ATTORNEY

The foregoing Agreement has been reviewed pursuant to A.R.S. § 11952, as amended, by the
undersigned Counsel, who has determined that it is in proper form and within the powers and
authority granted to the City under the laws of the State of Arizona.

a Sep 19, 2024

RoseMarie R. Horvath Date
Assistant Chief Counsel ee

Docusign Envelope ID: 93B11F62-44AD-49F E-B566-6 1E646F 5FFO6
IN WITNESS WHEREOF, the Parties have executed this Agreement.
MARICOPA COUNTY

Recommended by:

‘Signed by:
| Jesse Gutiurey 9/11/2024
Jesse Gutierrez Date

Transportation Director

Approved and Accepted by:

Chairman Date
Board of Supervisors

Attest by:

Clerk of the Board Date

APPROVAL OF DEPUTY COUNTY ATTORNEY

The foregoing Agreement has been reviewed according to A.R.S. § 11-952, as amended, by the
undersigned Deputy County Attorney, who has determined that it is in proper form and within the
powers and authority granted to the Board of Supervisors under the laws of the State of Arizona.

‘DocuSigned by:
Wayne Pro 9/9/2024
Deputy County Attorney Date

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