GILBERTROADBRIDGE FINAL AGREEMENT.PDF
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INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY, SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY AND CITY OF MESA FOR THE CONSTRUCTION OF THE GILBERT ROAD BRIDGE (TT0339) (C-64-20- ____ -M-00) This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a political subdivision of the State of Arizona (County), the Salt River Pima-Maricopa Indian Community (SRP- MIC), a federally recognized sovereign Indian Tribe established by Executive Order 1416, and the City of Mesa, a municipal corporation (City). The County, SRP-MIC and the City are collectively referred to as the Parties or individually as a Party. This Agreement shall become effective as of the date it is approved by the Parties. STATUTORY AUTHORIZATION 1. A.R.S. §§11-251 and 28-6701, et seq., authorizes the County to layout, maintain, control and manage public roads within its respective County, to acquire and condemn property necessary for such purposes, and to enter into this Agreement. 2. A.R.S. § 11-951, et seq., provides that public agencies may enter into Intergovernmental Agreements for the provision of services or for joint or cooperative action. 3. Article VII, Section 1(h) of the Constitution of the Salt River Pima-Maricopa Indian Community authorizes SRP-MIC Community Council to consult, negotiate, contract and conclude and perform agreements with Federal, state and local governments and Indian Tribes, as well as any person, association, partnership, corporation, government or other private entity. 4. A.R.S. §§ 9-240 and 9-276 authorizes the City to lay out and establish, regulate and improve streets within the City and to enter into this Agreement. BACKGROUND 5. The County has designated Gilbert Road between the 202L Red Mountain extending south to the 202L San Tan, as an Urban Road of Regional Significance which serves as a connector to State Route 87, a gateway road of Regional Significance. The current Gilbert Road crossing of the Salt River is a split road with southbound traffic using a bridge and northbound traffic using a low-flow roadway crossing. 6. On November 16, 1989, the County, SRP-MIC and Salt River Materials Group (SRMG) entered into an intergovernmental agreement (Project No. 68103) to Establish the Area for Bridge Protection (1989 IGA) recorded with the Maricopa County Recorder’s Office on January 10, 1990 and is included as Exhibit A of this Agreement, including the following paragraphs: DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 3. THAT the County shall also establish the depth of maximum excavation downstream that would damage said bridge as 1209.0 feet above mean sea level for a distance of 1000 feet from said bridge; said protective area is described in Exhibit “A” and attached hereto. 4. THAT the County shall establish the depth of maximum excavation upstream to prevent damage to said bridge as a slope 1 foot for each 10 feet for a distance of 1000 feet from said bridge, beginning at an elevation of 1209.0 feet above mean sea level. Said protective area is described in Exhibit “B” and attached hereto. 5. THAT the Community shall not allow excavation below said elevations, as described herein, to insure the safety of said bridge. 6. THAT the Community shall in no event allow excavation to a depth below said channel flow line elevation of 1239.0 feet above mean sea level of any sand, rock, gravel or other minerals from the area identified as “Protective Area” on the plans for Project No. 68103 – Gilbert Road at Salt River and described in Exhibit “A” and Exhibit “B” attached hereto; without first notifying the County, through the County Engineer, prior to commencing said work to insure the safety and usefulness of the bridge. 7. The County’s proposed design and scour calculations are based on the existing conditions and the cessation of mining in the Area of Bridge Protection set forth in the 1989 IGA. 8. On June 17, 2014 the United States Department of the Interior, acting by and through the Superintendent, Salt River Agency, Bureau of Indian Affairs, granted to the County a road and utility Right-of-Way easement for the purpose of construction and maintenance of a public roadway that meets County design standards, known as Gilbert Road, upon Tribal lands of SRP-MIC between Thomas Road and State Route 87. Approval of the easement was conditioned on the County’s performance of certain covenants described in the Grant of Easement including, without limitation, provisions related to utility lines, archaeology, materials preference, employment preference, aesthetics, plan review, permitting, indemnification, and compliance with SRP-MIC Law. The Grant of Easement, Application for Right-of-Way, and authorizing SRP-MIC Council Resolution are attached and included as Exhibit B of this agreement. 9. The Project addressed under this Agreement is comprised of the design, permitting, environmental clearance, acquisition of right-of-way, utility relocation, construction and construction management of the Gilbert Road Bridge over the Salt River in accordance with the County’s standards. (Project). 10. Project design is anticipated to be completed in fiscal year 2022, with construction to be completed in fiscal year 2025. 11. SRP-MIC and the City have both pledged to individually contribute the amount of $1,000,000 towards the construction costs of the Project. PURPOSE OF THE AGREEMENT 12. The purpose of this Agreement is to identify and define the responsibilities of the Parties, including but not limited to cost sharing, design, permitting, environmental clearance, right-of-way acquisition, utility relocation, construction and construction management. DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 TERMS OF THE AGREEMENT 13. Responsibilities of the County: 13.1 The County shall act as the lead agency for the Project, including the design, utility relocation, environmental clearance, right-of-way acquisition, construction and construction management. 13.2 The County shall coordinate with the City and SRP-MIC throughout the various phases of the Project. 13.3 The County shall invoice SRP-MIC for $500,000 when the Notice to Proceed is issued to the contractor to begin Project construction and for the additional $500,000 when the final acceptance of the Project is issued to the contractor. The invoice shall include copy of the issued letters. 13.4 The County shall invoice the City for $500,000 when the Notice to Proceed is issued to the contractor to begin Project construction and for the additional $500,000 when the final acceptance of the Project is issued to the contractor. The invoice shall include copy of the issued letters. 13.5 The County shall request no-cost permits from SRP-MIC to work within the community limits of the Project. 13.6 The County shall request permits from the City to work within the incorporated limits of the Project. The City will waive traffic control permit fees. 13.7 Upon completion and final acceptance of the Project construction, the County shall retain ownership and maintenance responsibility for the Project. 13.8 Upon demand, the County shall provide project-related work products to SRP-MIC and to the City. Such work products include, without limitation, aerial photography, survey products, engineering investigations, environmental investigations, and river modeling used in the design and construction of the project. 13.9 The County shall erect entry monuments within the Gilbert Road corridor as coordinated with SRP-MIC as to quantity, aesthetics, and locations. 14. Responsibilities of SRP-MIC: 14.1 SRP-MIC shall coordinate with the County and the City throughout the various phases of the Project. 14.2 SRP-MIC shall provide comments to the County within 20 working days of receipt of the 60% design plans from the County. 14.3 SRP-MIC shall provide comments to the County within 10 working days of receipt of the 95% and 100% design plans from the County. 14.4 SRP-MIC shall contribute $1,000,000 of the estimated cost of the Project. 14.5 SRP-MIC shall remit payment to the County within 30 working days of receipt of the invoice from the County. DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 14.6 SRP-MIC shall issue no-cost permits to the County, or its appointed agent, to work within the community limits of the Project. 14.7 SRP-MIC will assure compliance by SRMG to the excavation limits set-forth in the 1989 agreement and referenced in as Exhibit A of this Agreement. 15. Responsibilities of the City: 15.1 The City shall coordinate with the County and SRP-MIC throughout the various phases of the Project. 15.2 The City shall provide comments to the County within 20 working days of receipt of the 60% design plans from the County. 15.3 The City shall provide comments to the County within 10 working days of receipt of the 95% and 100% design plans from the County. 15.4 The City shall contribute $1,000,000 towards the cost of the Project. 15.5 The City shall remit payment to the County within 30 working days of receipt of the complete invoice from the County. 15.6 The City shall waive traffic control permit fees for this Project. All other permits will be issued at cost to the County, or its appointed agent, to work within the incorporated limits of the Project. GENERAL TERMS AND CONDITIONS 16. Each Party (as “Indemnitor”) agrees to indemnify, defend, and hold harmless the other Party (as “Indemnitee”) from and against all claims, losses, liability, costs, and expenses (including reasonable attorneys’ fees) (hereinafter collectively referred to as “Claims”) arising out of bodily injury of any person (including death) or property damage, but only to the extent that such Claims, which result in vicarious liability to Indemnitee, are caused by the act, omission, negligence, misconduct, or other fault of Indemnitor, its officers, agents, employees, or authorized volunteers. 17. 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 all stipulations previously indicated have been satisfied, except that it may be amended upon written Agreement by all Parties. Any Party may terminate this Agreement upon furnishing the other Party with a written notice at least thirty (30) days prior to the effective termination date. 18. This Agreement shall be subject to the provisions of A.R.S. Section 38-511. 19. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further acknowledge that: DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 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 shall keep a record of the verification for the duration of the employee’s employment or at least three (3) years, whichever is longer. 19.2 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 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. 19.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or employee of the Parties to this Agreement. 20. 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. 21. Each of the following shall constitute a material breach of this Agreement and an event of default (“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. 22. All notices required under this agreement to be given in writing shall be sent to: Maricopa County Department of Transportation Attn: Intergovernmental Liaison 2901 W. Durango Street Phoenix, Arizona 85009 Salt River Pima Maricopa Indian Community Attn: Engineering and Construction Services Director 10005 East Osborn Road Scottsdale, Arizona 85256 DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 City of Mesa Attn: Transportation Director P.O. Box 1466 Mesa, Arizona 85211 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. 23. This Agreement does not imply authority to perform any tasks, or accept any responsibility, not expressly stated in this Agreement. 24. This Agreement does not create a duty or responsibility unless the intention to do so is clearly and unambiguously stated in this Agreement. 25. 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. 26. 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, the Salt River Pima-Maricopa Indian Community Tribal Council and the Mesa City 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. 27. 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. 28. 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. 29. 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. DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. 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. 38. For purposes of this Agreement, and subject to the terms of this section, the SRP-MIC, consents and agrees to a limited waiver of its sovereign immunity from suit and consents to be sued on an arbitration award. The SRP-MIC represents that this limited waiver of sovereign immunity has been duly approved by the Community Council. This limited waiver is enforceable solely by the parties in this agreement and does not create any additional third party beneficiary rights to suits or private causes of action in favor of third Parties. The Parties agree that this section provides a limited waiver of sovereign immunity solely for the purpose of enforcing the provisions of this Agreement and enforcing any arbitration award hereunder and for no other purpose. 39. In the event of a dispute, claim or controversy (“Dispute”) arising out of or related to this Agreement, the Parties agree that it is in their mutual best interest to meet as promptly as possible for the purpose of informally resolving said Dispute. In the event the Parties cannot resolve their Dispute informally after attempting to work in good faith, the Parties hereto agree to abide by arbitration as set forth below. DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 40. If a party in good faith concludes that a Dispute arising out of or related to this Agreement is not likely to be resolved by informal dispute resolution then, upon notice by that Party to the other, said Dispute shall be finally and exclusively settled by submission of such Dispute to the American Arbitration Association (“AAA”) under its then prevailing procedural rules contained in the AAA’s Commercial Arbitration Rules to the extent that such rules shall not be interpreted to diminish, limit, or void the limited waiver of sovereign immunity set forth in Section 16 above or to increase the enforcement rights of the Parties. Within ten (10) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. The third arbitrator shall be a practicing attorney, actively engaged in the practice of law for at least ten (10) years and a member in good standing of the bar of the State of Arizona. Alternatively, the third arbitrator may be a retired judge of the federal court or the trial court of the state of Arizona. At least one of the arbitrators shall be knowledgeable with federal Indian law and one arbitrator shall have AAA-acknowledged expertise in the appropriate subject matter. All arbitration proceedings shall be held in Maricopa County or at such other place as shall be agreed by the Parties. 41. The award shall be made within sixty (60) days of the filing of the notice of intent to arbitrate, and the arbitrators shall agree to comply with the schedule before accepting appointment. However, this time limit may be extended by agreement of the Parties or by the majority of the arbitrators, if necessary. Any award rendered in any such arbitration proceeding shall be final and binding upon all Parties to the proceeding. Any action to enforce the arbitration award must be filed within one hundred and eighty (180) days from the issuance of the award. 42. Judgment upon any award rendered by the arbitrators against the SRP-MIC may be entered in the SRP-MIC’s tribal court system (“Tribal Court”) or against the State of Arizona or the City of Mesa in the Arizona State Court System (“State Court”) and interpreted and/or enforced pursuant to the terms of this Agreement, and/or pursuant to the terms of the AAA’s Commercial Arbitration Rules, and/or pursuant to the terms and provisions of the statutes, rules and regulations governing or providing for interpretation or enforcement of judgments applicable in any State of Arizona or Salt River Pima-Maricopa Indian Community court. 43. This Agreement shall be construed and interpreted by the laws of the State of Arizona. 44. Unless otherwise lawfully terminated by the Parties, this Agreement expires upon completion and acceptance of the Project and fulfillment of all terms of the Agreement. End of Agreement - Signature Pages Follow DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 IN WITNESS WHEREOF, the Parties have executed this Agreement. MARICOPA COUNTY Recommended by: 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 I hereby state that I 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 by their respective governing body under the laws of the State of Arizona. Deputy County Attorney Date DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 5/27/2020 5/28/2020 IN WITNESS WHEREOF, the Parties have executed this Agreement. SALT RIVER INDIAN COMMUNITY Approved and Accepted by: Martin Harvier President Attest by: Tribal Secretary Date APPROVAL OF SRPMIC ATTORNEY I hereby state that I have reviewed the proposed Intergovernmental Agreement and declare the Agreement to be in proper form and within the powers and authority granted to the Salt River Pima- Maricopa Indian Community by their respective governing body under the laws of the State of Arizona. Attorney for SRP-MIC Date DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 IN WITNESS WHEREOF, the Parties have executed this Agreement. CITY OF MESA Approved and Accepted by: John Giles Mayor Attest by: City Clerk Date APPROVAL OF CITY ATTORNEY I hereby state that I have reviewed the proposed Intergovernmental Agreement and declare the Agreement to be in proper form and within the powers and authority granted to the City of Mesa by their respective governing body under the laws of the State of Arizona. City Attorney Date DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 EXHIBIT A DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07 EXHIBIT B DocuSign Envelope ID: D320557D-47B7-4D3A-970C-C71215EC5B07