2020-08-10 - ANTHEM ROW MAINTENANCE AGREEMENT.DOCX
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8/23/16 Page 1 of 8 AGREEMENT BETWEEN MARICOPA COUNTY AND THE ANTHEM COMMUNITY COUNCIL FOR MAINTENANCE RESPONSIBILITIES WITHIN MARICOPA COUNTY RIGHT-OF-WAY (C-64-20- -M-02) This Agreement (Agreement) is between the County of Maricopa, a political subdivision of the State of Arizona (County), and the Anthem Community Council, Inc., an Arizona nonprofit corporation (Council). The County and Council are collectively referred to as the Parties or individually as a Party. STATUTORY AUTHORIZATION 1. A.R.S. Section 11-251 and Sections 28-6701 et. seq. authorizes the County to lay out, maintain, control and manage public roads within the County. BACKGROUND 2. In March 2000, the Parties entered into an agreement (C-64-00-170-2) which was replaced by a new agreement in August 2016 (C-64-17-013-M-01) to identify the responsibilities of the County and the Council regarding maintenance tasks formerly performed by Del Webb. PURPOSE OF THE AGREEMENT 3. The purpose of this Agreement is to supersede the prior agreements and to identify the maintenance responsibilities to be performed by the County and the Council within the County right-of-way in the unincorporated area of Anthem. 8/23/16 Page 2 of 8 TERMS OF THE AGREEMENT 4. Responsibilities of the County. No items outside of County right-of-way will be maintained by the County except as provided in paragraph 4.3.1 and 4.6 below. The County shall assume maintenance responsibilities for the following items within County right-of-way: 4.1 Pavement, curbs, gutters, driveways ramps, sidewalks and roadways. 4.2 Intersection pedestrian sidewalk ramps. 4.3 Drainage and flood control facilities including: storm drain culverts, swales, riprap channels, box culverts, catch basins, and scuppers that are integral to the roadway; including debris removal specific to these facilities. 4.3.1 The County will maintain sections of drainage and flood control facilities that extend outside of the County’s right-of-way but are within a drainage easement in favor of the County. 4.4 Any traffic control devices, including official street name signs. 4.5 Traffic signal devices and power and control systems for traffic signal devices. 4.6 The County will maintain sections of sidewalk that are part of the road profile that fall outside the County’s right-of-way. The County will not maintain residence approach sidewalks. The County will invoice the Council for its proportional share of the cost of sidewalk repairs on a project by project basis. 5. Responsibilities of the Council. The Council shall assume maintenance responsibility for the following items within the County right-of-way: 5.1 Landscaping, including: trees and plants, decorative landscape rock, irrigation systems, landscaping irrigation power and control systems, landscape lighting, and landscape lighting power and control systems. Installation or replacement of any of the above features within the sight triangles at all intersections and that exceed twenty-four (24) inches in height shall be determined in collaboration with the County. The dimensions of the sight triangles are to be determined in compliance with the procedures identified in Chapter 9 of the Maricopa County Department of Transportation Roadway Design Manual on landscaping, and as shall be provided by the County. 5.2 Graffiti removal on box culvert walls that are painted by the County with a paint color and type specified by the Council. 5.3 Decorative column monuments including concrete masonry unit (CMU) 8/23/16 Page 3 of 8 columns, steel railing, steel grating, light fixtures, electrical power and control, and decorative tops. 5.4 Decorative feature site walls including CMU walls and flagstone cladding. 5.5 Decorative bridge railings, columns and tops. 5.6 At its discretion, the Council may assist the County in the timely removal of temporary unauthorized signs within the County right-of-way. The Council will notify the County of any signs removed. If the owner of the sign is known, the Council will notify the owner and hold the sign for seven (7) days. Thereafter, the Council may dispose of any signs removed. The Council will not remove political signs. 5.7 The Council will reimburse the County for sidewalk repairs as set forth in paragraph 4.6 above. 5.8 The Council will hold County harmless for any and all liability and damages arising out of County’s maintenance of any sidewalk sections on Council owned property. 5.9 Directional and amenity signs installed by the Council by permit from the County, including CMU signs and features, and the corresponding electrical power and control systems. 5.10 Decorative street name signs installed by the Council by permit that do not adhere to County standards. 5.11 Water for landscaping. 5.12 Weed control. GENERAL TERMS AND CONDITIONS 6. In fulfilling the terms of this Agreement, both Parties agree to communicate and cooperate in good faith, and the County agrees to provide the Council with at least ten (10) days advanced notice prior to trimming or removing trees that are not in compliance with County roadway safety standards, in order to allow the Council the opportunity to perform this work. 7. By entering into this Agreement, the Parties agree that to the extent permitted by law, each Party will indemnify, defend and save the other Parties harmless, including any of the Parties’ departments, agencies, officers, directors, insurers, 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 8/23/16 Page 4 of 8 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, except such injury or damage as shall have been caused or contributed to by the negligence of that other Party. The damages which are the subject of this indemnity shall 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. County shall name Council as an additional insured on all relevant insurance policies. The Council understands that Maricopa County is self-insured as authorized by A.R.S. Section 12-981 and accepts said self-insurance program as full compliance with the insurance requirements set forth in this Agreement. 8. 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 for five (5) years. Any Party may terminate this Agreement upon furnishing the other Party with a written notice at least sixty (60) days prior to the effective termination date. 9. This Agreement shall be subject to the provisions of A.R.S. Section 38-511. 10. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further acknowledge that: 10.1 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 shall keep a record of the verification for the duration of the employee’s employment or at least three (3) years, whichever is longer. 10.2 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. 10.3 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 in order to facilitate such an inspection. 10.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or employee of the Parties to this Agreement. 11. 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 8/23/16 Page 5 of 8 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. 12. All notices required under this agreement to be given in writing shall be sent to: Maricopa County Department of Transportation Intergovernmental Relations 2901 West Durango Street Phoenix, Arizona 85009 Anthem Community Council Community Executive Officer 3701 West Anthem Way, Suite #201 Anthem, Arizona 85086 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, 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. As an alternative to providing notices in writing under this Paragraph, notices may be provided from and to electronic mail addresses provided by Maricopa County Department of Transportation Intergovernmental Relations and the Anthem Community Council Community Executive Officer or other Council staff representatives as designated by Council in writing. 13. This Agreement does not imply authority to perform any tasks, or accept any responsibility, not expressly stated in this Agreement. 14. This Agreement does not create a duty or responsibility unless the intention to do so is clearly and unambiguously stated in this Agreement. 15. 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. 16. This Agreement shall 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. 8/23/16 Page 6 of 8 17. This Agreement and all Exhibits attached to 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 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. 18. 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. 19. 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. 20. Except as otherwise provided in this Agreement, all covenants, agreements, representations 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. 21. Nothing contained in this Agreement shall 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. 22. 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. 23. 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. 24. 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 8/23/16 Page 7 of 8 instrument. Faxed, copied and scanned signatures are acceptable as original signatures. 25. 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. 26. 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. 27. This Agreement shall be governed by the laws of the State of Arizona. End of Agreement - Signature Page Follows 8/23/16 Page 8 of 8 IN WITNESS WHEREOF, the Parties have executed this Agreement. ANTHEM COMMUNITY COUNCIL MARICOPA COUNTY Recommended by: Recommended by: John Bowman Date Reid H. Spaulding Date Community Executive Officer Deputy County Manager Approved and Accepted by: Approved and Accepted by: Terry Mullarkey Date Clint Hickman, Chairman Date President Board of Supervisors Attest by: Attest by: Darrin Francom Date Clerk of the Board Date Secretary APPROVAL OF DEPUTY COUNTY ATTORNEY I hereby state that I have reviewed the proposed Agreement and declare the Agreement to be in proper form and within the powers and authority granted to the Parties by their respective governing bodies under the laws of the State of Arizona. Deputy County Attorney Date