IGA WITH TOWN OF CAVE CREEK ENTENTE - EXCHANGE OF SERVICES.PDF

INTERGOVERNNENTAL AGREEMENT BETWEEN
MARICOPA COUNTY AND THE TOWN OF CAVE CREEK
FOR THE EXCHANGE OF SERVICES (ENTENTE)

(C-64-21- -Mi-00)

This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a
political subdivision of the State (County), and the Town of Cave Creek, a municipal
corporation (Town). The County and Town are collectively referred to as the Parties or
individually as a Party. ;

This Agreement shall become effective as of ihe date it is approved by the Maricopa
County Board of Supervisors.

STATUTORY AUTHORIZATION

1. ARS. §11-251 and §§28-6701 ef seg. authorize the County to layout, maintain,
control and manage public roads within the County.

2. A.R.S. §§11-951 ef seq. authorize public agencies to enter into Intergovernmental
Agreements for the provision of services or for joint or cooperative action.

3,  A.R.S, §§9-240 and §9-276 ef seq. authorize the Town to layout and establish,
regulate and improve streets within the Town, and to enter into this Agreement.

BACKGROUND

4. The Parties desire to develop and implement a cooperative highway improvement
program whereby routine or emergency highway maintenance will be implemented
more efficiently (Entente Program). The Entente Program is designed to focus
on the maintenance task needed and the availability of resources. The Entente
Program is a method of providing goods and services to each Party by entering
into temporary Letters of. Agreement (LOA or LOAs). The Parties desire to
authorize the County Transportation Director, or their designee, and the Town
Manager, or their designee, to enter into separate LOAs for each routine or
emergency highway maintenance project.

Page 1 of 12

10.

11.

PURPOSE OF THE AGREEMENT

The purpose of this Agreement is to establish procedures to authorize the County
Transportation Director, or their designee, and the Town Manager, or their
designee, to enter into LOAs to exchange goods or services between each Party
in order to perform routine or emergency highway maintenance services.

This Agreement shall become effective as of the date it is approved by the
Maricopa County Board of Supervisors and remain in full force and effect until it is
terminated by either Party. Any Party may terminate this Agreement for any reason
upon furnishing the other Party with a written notice at least thirty (30) days prior
to the effective termination date.

TERMS OF THE LOA

Each LOA will describe the routine or emergency highway maintenance project
and the goods or services that are being exchanged between the Parties. If
applicable, the LOA will also state the amount of reimbursement owed to the other
Party if the value of goods or services exchanged is not of equal value; provided,
however, the total aggregate reimbursement that is In excess of the value of the
goods or services received for all LOAs entered into pursuant to this Agreement
shall not exceed $250,000 per fiscal year.

After the Parties enter into an LOA, if there are unexpected or unforeseen costs
that cause the value of the goods or services exchanged to become unequal or
add to the amount of reimbursement for that LOA, the Parties shall amend the
LOA, in writing; provided, however, that the additional reimbursement shall not
cause the total aggregate reimbursement for all LOAs to exceed $250,000 per
fiscal year.

Prior to any work being performed under an LOA by either the County or the Town,
payment shall be remitted to the owed Party for the project work to be done
pursuant to the LOA.

All routine or emergency highway maintenance projects shall be performed in
accordance with “Uniform Standard Specifications for Public Works Construction,”
current edition/revisions as of the date of each LOA and the “Uniform Standard
Details for Public Works Construction,” current edition/revisions as of the date of
each LOA which are sponsored and distributed by the Maricopa Association of
Governments (MAG) and any amendments or supplements adopted by the County
and Town, as applicable.

All routine or emergency highway maintenance projects shall be performed with
existing resources.

Page 2 of 12

12.

13.

Nothing in any LOA shall be interpreted to enlarge or expand the County's or the
Town’s authority.

TERMS OF THE AGREEMENT

Responsibilities of the County:

13.4

13.2

13.3

13.4

13.5

The County Transportation Director, or their designee, may select routine
or emergency highway maintenance projects suitable for an LOA and enter
into LOAs with the Town for the exchange of goods or services for highway
maintenance projects. If the value of County provided goods or services
exchanged with the Town is less than the value of goods and services
provided by the Town the County shall remit to the Town the difference in
value, provided that the total aggregate reimbursement to the Town for ail
LOAs will not exceed $250,000 per fiscal year.

The County shall remit to the Town any sums due to the Town for its
contribution of goods and services the value of which exceed the value of
goods and services provided by the County, less any overpayments
previously remitted, within 30 days of receipt of an itemized statement from
the Town or pursuant to the terms of the LOA.

The County shail complete each routine or emergency highway
maintenance project, such as those generally outlined in Exhibit A, which is
attached to this Agreement and incorporated into this Agreement by
reference, in accordance with the County’s procurement code and policies
and the “Uniform Standard Specifications for Public Works Construction,”
current edition/revisions as of the date of each LOA and the “Uniform
Standard Details for Public Works Construction,” current edition/revisions
as of the date of each LOA which are sponsored and distributed by the
Maricopa Association of Governments (MAG) and any amendments or
supplements adopted by the County.

Prior to the end of every fiscal year of the County, the County shall provide
the Town a statement of services performed by the County pursuant to an
executed LOA (County Statement). The County Statement shall also
include an itemization of any and all costs owed to the County by the Town
and an invoice for any outstanding costs. The County’s fiscal year ends
June 30th.

The County shall permit the Town to inspect the routine or emergency
highway maintenance projects undertaken by the County on behalf of the
Town and pursuant to an LOA. [f the Town reasonably believes the project
is not being conducted by the County in conformance with the LOA, or the
Town reasonably believes that that project has not been undertaken and

Page 3 of 42

conducted in a good and workmanlike manner, the County shail correct or
re-perform it, as necessary, to the reasonable satisfaction of the Town.

14. Responsibilities of the Town:

14.1

14.2

14.3

14.4

14.5

The Town Manager or designee may select routine or emergency highway
maintenance projects suitable for an LOA and to enter into LOAs with the
County for the exchange of goods and services for highway maintenance
projects. If the value of Town provided goods or services exchanged with
the County is less than the value of goods and services provided by the
County, the Town shall remit to the County the difference in value, provided
that , the total aggregate reimbursement to the County for all LOAs will not
exceed $250,000 per fiscal year.

The Town shall remit to the County any sums due to the County for its
contribution of goods and services the value of which exceed the value of
goods and services provided by the Town, less any overpayments
previously remitted, within 30 days of receipt of an itemized statement from
the County or pursuant to the terms of the LOA.

The Town shall complete each routine or emergency highway maintenance
project, such as those generally outlined in Exhibit A, in accordance with
the Town's procurement code and policies and the “Uniform Standard
Specifications for Public Works Construction,” current edition/revisions as
of the date of each LOA and the “Uniform Standard Details for Public Works
Construction,” current edition/revisions as of the date of each LOA which
are sponsored and distributed by the Maricopa Association of Governments
(MAG) and any amendments or supplements adopted by the Town.

Prior to the end of every fiscal year of the County, the Town shail provide
the County a statement of services performed by the Town pursuant to an
executed LOA (Town Statement). The Town Statement shall also include
an itemization of any and all costs owed to the Town by the County and an
invoice for any outstanding costs. The Town’s fiscal year ends June 30th.

The Town shall permit the County to inspect the routine or emergency
highway maintenance projects undertaken by the Town on behalf of the
County and pursuant to an LOA, If the County reasonably believes the
project Is not being conducted by the Town in conformance with the LOA,
or the County reasonably believes that that project has not been undertaken
and conducted in a good and workmanlike manner, the Town shall correct
or re-perform it, as necessary, to the reasonable satisfaction of the County.

Page 4 of 12

15.

16.

17.

18.
19.

Each Party will maintain a record of the goods and services exchanged over the
life of the Agreement. For the purposes of calculating the $250,000 fiscal year limit,
the total aggregate reimbursement made by one Party to the other Party will not
be offset by the value of the goods or services received.

MANNER OF FINANCING

The County and the Town shall budget, finance and bear the expense of each LOA
separately. The County Transportation Director and the Town designee shall
ensure that sufficient financing is available prior to entering into an LOA.

GENERAL TERMS AND CONDITIONS

By entering into this Agreement, the Parties agree that to the extent permitted by
law, each Party will indemnify, defend and save the other Party harmless, including
any of the other Party’s departments, agencies, officers, employees, elected
officials or agents, from and against all loss, expense, damage or claim of any
nature whatsoever which is caused by any activity, condition or event arising out
of the negligent performance or nonperformance by the indemnifying Party of any
of the provisions of this Agreement. By entering into this Agreement, each Party
indemnifies the other against all liability, losses and damages of any nature for or
on account of any injuries or death of persons or damages to or destruction of
property arising out of or in any way connected with the performance or
nonperformance of this Agreement of the indemnifying Party, except such injury or
damage as shall have been caused or contributed to by the negligence of the other
Party. The damages which are the subject of this indemnity shail include but not
be limited to the damages incurred by any Party, its departments, agencies,
officers, employees, elected officials or agents. in the event of an action, the
damages which are the subject of this indemnity shall include costs, expenses of
litigation and reasonable attorney's fees.

This Agreement shall be subject to the provisions of A.R.S. Section 38-511.

The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and
further acknowledge that:

19.1 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. Section 23-214(A), and shail keep a record of the
verification for the duration of the employee's employment or at least three
(3) years, whichever is longer.

Page 5 of 12

20.

21.

22,

49.2 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.

19.3 The Parties retain the legai 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.

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

Each Party to this Agreement warrants that neither it nor any contractor or vendor
under contract with the Party to provide goods or services toward the
accomplishment of the objectives of this Agreement is suspended or debarred by
any federal agency which has provided funding that will be used in the Project
described in this Agreement.

Each of the following shall constitute a material breach of this Agreement and an
event of defauit (“Default”) hereunder: A Party’s failure to observe or perform any
of the material covenants, conditions or provisions of this Agreement to be
observed or performed by that Party (“Defaulting Party”), where such failure shall
continue for a period of thirty (30) days after the Defaulting Party receives written
notice of such failure from the non-defaulting Party 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, but the total aggregate cure period shall not exceed ninety (90)
days unless the Parties agree in writing that additional time is reasonably
necessary under such circumstances to cure such default. In the event a
Defaulting Party fails to perform any of its material obligations under this
Agreement and is in Default pursuant to this Section, the non-defaulting Party, at
its option, may terminate this Agreement. Further, upon the occurrence of any
Default and at any time thereafter, the non-defaulting Party may, but shall not be
required to, exercise any remedies now or hereafter available to it 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

Page 6 of 12

23.

24.

25.

26.

27.

28.

Town of Cave Creek

Attn: Town Manager

37622 North Cave Creek
Cave Creek, Arizona 85331

All notices required or permitted by this Agreement or applicable law shail be in
writing and may be delivered in person (by hand or courier) or may be sent by
regular, certified or registered 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 paragraph. Either Party may by written notice to the other specify
a different address for notice. Any notice sent by registered or 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
United States Express Mail or overnight courier that guarantee next day delivery
shall be deemed given 24 hours after delivery of the notice to the Postal Service
or courier.

This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.

This Agreement does not create a duty or responsibility unless the intention to do
so is clearly and unambiguously stated in this Agreement.

This Agreement does not grant authority to control the subject roadway, except to
the extent necessary to perform the tasks expressly undertaken pursuant to this
Agreement.

Any funding provided for in this Agreement, other than in the current fiscal year, is
contingent upon being budgeted and appropriated by the Maricopa County Board
of Supervisors and the Cave Creek Town Council in such fiscal year. This
Agreement may be terminated by any Party at the end of any fiscal year due to
non-appropriation of funds.

This Agreement shali be binding upon and inure to the benefit of the Parties and
their respective successors and assignees. Neither Party shall assign its interest
in this Agreement without the prior written consent of the other Party.

This Agreement and all Exhibits attached fo this Agreement set forth all of the
covenants, promises, agreements, conditions and understandings between the
Parties to this Agreement, and there are no covenants, promises, agreements,
conditions or understandings, either oral or written, between the Parties other than
as set forth in this Agreement, and those agreements which are executed
contemporaneously with this Agreement. This Agreement shall be construed as a
whole and in accordance with its fair meaning and without regard to any

Page 7 of 12

29.

30.

31.

32.

33.

34.

35.

presumption or other rule requiring construction against the party drafting this
Agreement. This Agreement cannot be modified or changed except by a written
instrument executed by all of the Parties hereto. Each Party has reviewed this
Agreement and has had the opportunity to have it reviewed by legal counsel.

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 by reason of the continuation
of any matter previously waived.

Wherever possible, each provision of this Agreement shall be interpreted in such
a manner as to be valid under applicable law, but if any provision shall be invalid
or prohibited under the law, such provision shall be ineffective to the extent of such
prohibition or invalidation but shall not invalidate the remainder of such provision
or the remaining provisions.

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

Nothing contained in this Agreement shail create any partnership, joint venture or
other agreement between the Parties hereto. Except as expressly provided in this
Agreement, no term or provision of this Agreement is intended or shall be for the
benefit of any person or entity not a party to this Agreement, and no such other
person or entity shall have any right or cause of action under this Agreement.

Time is of the essence concerning this Agreement. Unless otherwise specified in
this Agreement, the term “day” as used in this Agreement means calendar day. If
the date for performance of any obligation under this Agreement or the last day of
any time period provided in this Agreement falls on a Saturday, Sunday or legal
holiday, then the date for performance or time period shall expire at the close of
business on the first day thereafter which is not a Saturday, Sunday or legal
holiday.

Sections and other headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.

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. Faxed, copied and scanned signatures are acceptable as original
signatures.

Page 8 of 12

36.

37.

38.

The Parties agree to 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 pursuant to this Agreement.

The Parties hereby agree that 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 Page Follows

Page 9 of 12

DocuSign Envelope ID: 4OEEC6D8-8403-4C20-8D3E-8DA703933291

IN WITNESS WHEREOF, the Parties have executed this Agreement.

MARICOPA COUNTY

Recommended by:

DocuSigned by:

Juunifur Toth 8/19/2020

SOE8452AGBR0450.

Jennifer Toth, P.E. Date
Transportation Director

Approved and Accepted by:

Chairman Date
Board of Supervisors

Attest by:

Clerk of the Board Date

APPROVAL OF DEPUTY COUNTY ATTORNEY

| hereby state that | have reviewed the proposed Intergovernmental Agreement and
declare the Agreement to be in proper form and within the powers and authority granted
to the Maricopa County Board of Supervisors under the laws of the State of Arizona.

DocuSigned by:
[+ MpBrude 8/31/2020

9B0782D9F1CF48e...

Deputy County Attorney Date

Page 10 of 12

IN WITNESS WHEREOF, the Parties have executed this Agreement.

TOWN OF CAVE CREEK

Approved and Accepted by:
Ernie Bunch
Mayor Date
Attest by:
Sen Ville  0B-1T- 2022
( Town Clerk Date

APPROVAL OF TOWN ATTORNEY

| hereby state that | have reviewed the proposed Intergovernmental Agreement and
declare the Agreement to be in proper form and within the powers and authority granted
to the Cave Creek Town Council under the laws of the State of Arizona.

Town Attorney” Date

Page 11 of 12

EXHIBIT A

Road-Related Tasks:

a. Grading
b. Sweeping

c. Surface Treatment/Seai Coats

d. Signage
8. Striping
f. Debris Removal

g. Material Hauling

h. Fence Repair

i. Storm Drain/Culvert Repair
j. Barricading

k. Pathole Repair

L, Signal Maintenance
m. Equipment Exchange
n. Concrete Repair

on Bridge Repairs

p. Storm Repairs

q. Guardrail Repairs

s. Training

Page 42 of 12