PHOENIX - OLIVE-DUNLAP ASCT FINAL IGA.DOC
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1 INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND THE CITY OF PHOENIX FOR THE OLIVE AVE/DUNLAP AVE ADAPTIVE SIGNAL CONTROL TECHNOLOGY (ASCT) DEPLOYMENT PROJECT (TE070) MAG #: MMA20-061 Fed Aid #: MMA-0(283) D CFDA #: 20.205 TRACS #: T0244 01X (C-64-20-____-M-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 (City). The County 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 Maricopa County Board of Supervisors and the Phoenix City Council. STATUTORY AUTHORIZATION 1. A.R.S. §§11-251 and 28-6701, et seq., authorize 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. BACKGROUND 3. In association with the Maricopa Association of Governments (MAG) System Management and Operations (SM&O) Plan, the current project consists of the installation of Adaptive Signal Control Technology (ASCT) at 28 signalized intersections on the 12 mile segment of Olive Avenue and Dunlap Avenue from Agua Fria Ranch Road through the Loop 101 interchange, and extending east to include the I-17 interchange. The signalized interchanges of L101 and I-17, that reside in ADOT’s jurisdictional boundaries, are included this Project. 2 4. ASCT has been identified as an important tool to provide improved traffic signal timing adjustments in response to varying traffic volumes and congestion. 5. The project is funded from local and federal funds through the MAG Transportation Improvement Program (TIP). The total project cost in MAG TIP is $2,522,600 with a combined partner agency match of $143,788. The match is shared in proportion of number of agency signals within the project. 6. This Agreement is contingent upon the City’s compliance with the Single Audit Act of 1984 and the availability of federal funds through the MAG TIP: 6.1 Federal Contract Number: MMA-0(283)D 6.2 Catalog of Federal Domestic Assistance (CFDA) Number: CFDA# 20.205 6.3 Fiscal Years: FY 2020 6.4 Total Project Cost in MAG TIP: $2,522,600 6.5 Federal Obligation Award: $2,378,812 6.6 Funding Sources: i. Congestion Mitigation and Air Quality Funds (CMAQ) – $2,378,812 Federal Highway Administration (FHWA) ii.Highway User Revenue Funds (HURF) and local revenues – $143,788 Local Match, distributed proportionally between the participating agencies as follows: 1. Maricopa County 6 signals $32,301 2. City of Glendale 8 signals $43,068 3. City of Phoenix. 5 signals $26,918 4. City of Peoria 6 signals $32,301 5. ADOT 2 signals $ 9,200 6.7 Project Contact Information: i. Name: April Wire, Arterial Operations Program Manager ii.Agency: Maricopa County Department of Transportation iii. Phone: 602-506-7174 iv. Email: April.Wire@maricopa.gov PURPOSE OF THE AGREEMENT 7. The purposes of this Agreement are to identify the roles and responsibilities or the Parties with respect to the Project and define the cost sharing of the local match for the Project. 3 TERMS OF THE AGREEMENT 8. Responsibilities of the County: 8.1 The County shall be the lead agency for all construction and construction management and shall provide certification of right-of-way with the assistance of the City. 8.2 The County shall request from the City any necessary right-of-way, utility and environmental clearance background information. 8.3 The County shall provide design and installation documents to the City for review in a timely manner. 8.4 The County shall apply for no-cost permits for Project work within City boundaries. 8.5 The County shall receive and administer the project federal-aid funding for the duration of the project. 8.6 The County shall contribute the local match for the construction costs for six signalized intersections associated in the County’s jurisdiction, currently estimated at $32,301. 8.7 At notice to proceed, the County will invoice the City in the amount of $26,918 for the five signalized intersections in the City’s jurisdiction. 8.8 The County shall provide the construction documents for the project to the City’s representative when completed. 9. Responsibilities of the City: 9.1 The City shall provide the County any necessary right-of-way, utility and environmental clearance background information. 9.2 The City shall provide timely review of all design and installation documents provided by the County. The City shall provide comments to the County within 30 calendar days after receiving documents for review from the County. 9.3 The City shall issue the County no-cost permits for Project work within the City boundaries. 9.4 The City shall have a technician on site during all installations, removals, maintenance and repairs of Phoenix owned and operated ATMS communications and peripheral equipment in or attached to Phoenix owned traffic signals, control cabinets and enclosures as per the 2016 Master Traffic Management and Operations of Integrated Corridor Management Projects Intergovernmental Agreement. 4 9.5Within thirty (30) days of receiving the invoice from the County, the City shall contribute the local match requirement of $26,918. The City shall own, operate and maintain the equipment installed within the City’s jurisdiction as part of this Project upon completion of the Project. GENERAL TERMS AND CONDITIONS 10. By entering into this Agreement, the Parties agree that to the extent permitted by law, each Party will defend, indemnify and save the other Parties harmless, including any of the Parties’ 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 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 (including but not limited to vicarious 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 that is occasioned 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. 11. 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. 12. This Agreement shall be subject to the provisions of A.R.S. Section 38-511. 13. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further acknowledge that: 13.1 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 the E-Verify program under 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 years, whichever is longer. 5 13.2 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. 13.3 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 to require that the contractor make all papers and employment records of said employee available during normal working hours in order to facilitate such an inspection. 13.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or employee of the Parties to this Agreement. 14. 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. 15. 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 continues 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 the circumstances to cure the default. In the event a Defaulting Party fails to perform any of its material obligations under this Agreement and is in Default, 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. 16. All notices required under this agreement to be given in writing shall be sent to: Maricopa County Department of Transportation Transportation Director 2901 West Durango Street Phoenix, AZ 85009 City of Phoenix Street Transportation Director 200 West Washington Street, 5th Floor Phoenix, Arizona 85003 6 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. 17. This Agreement does not imply authority to perform any tasks, or accept any responsibility, not expressly stated in this Agreement. 18. This Agreement does not create a duty or responsibility unless the intention to do so is clearly and unambiguously stated in this Agreement. 19. 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. 20. Any funding provided for in this Agreement, other than in the current fiscal year, is contingent upon being budgeted and appropriated by the Parties 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. 21. 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. 22. 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. 23. 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. 7 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 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. Faxed, copied and scanned signatures are acceptable as original signatures. 30. 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. 31. 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. 32. This Agreement shall be governed by the laws of the State of Arizona. 33. 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 Page Follows 8 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement. MARICOPA COUNTY Recommended by: _____________________________ Jennifer Toth, P.E. Date Transportation Director Approved and Accepted by: _____________________________ Clint Hickman, 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 County by the Board of Supervisors under the laws of the State of Arizona. _________________________ Deputy County Attorney 9 CITY OF PHOENIX Recommended by: Kini Knudson. P.E. Date Street Transportation Director 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 by its respective governing body under the laws of the State of Arizona. _________________________ City Attorney