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INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND THE
CITY OF PHOENIX FOR IMPROVEMENTS TO LOWER BUCKEYE ROAD
FROM 71sT AVENUE TO 67 1" AVENUE
(TT0495)
(C-64-19-
-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, a municipal corporation
(City). The County and City 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. authorize the County to lay out,
maintain, control and manage public roads within the County.
2.
A.R.S. Sections 9-240 and 9-276 authorize the City to lay out and establish, regulate and
improve streets within the City.
3.
A.R.S. Sections 11-951 through 11-955 authorize public agencies, including the Parties,
to enter into Intergovernmental Agreements for the provision of services or for joint or
cooperative action.
BACKGROUND
4.
Lower Buckeye Road from 71s t Avenue to 67 1h Avenue (Roadway) is currently classified
as a minor arterial street.
5.
The Roadway straddles the boundary between the County on the south and the City on
the north, west, and east.
6.
The Parties seek to improve the Roadway by widening it from a single lane in each
direction to two lanes in each direction with a center left turn lane, curb and gutter,
sidewalks, bike lanes, ITS conduit, upgraded traffic signal, lighting, transit pads, and
drainage improvements to provide a uniform roadway section (Project).
7
County financial participation shall be limited to aspects of the Project that are essential
for the establishment of a safe roadway.
Page 1 of 8
PURPOSE OF THE AGREEMENT
8.
The purpose of this Intergovernmental Agreement is to identify and define the
responsibilities of the County and the City for various elements of the Project, which
include, but are not limited to, cost sharing, design, permitting, environmental clearances,
right-of-way acquisitions, utilities, construction and construction management, inspection
and annexation of the roadway.
TERMS OF THE AGREEMENT
9.
Responsibilities of the County:
9.1
The County will act as the lead agency for all aspects of the Project.
9.2
The County will design and construct the Project to City standards.
9.3
The County will provide the City with copies of design plans for review and
comment.
9.4
The County will apply to the City for no-cost permits for any necessary Project
related work performed within City's jurisdiction.
9.5
The County shall be financially responsible for the Project costs, beyond the City's
contribution of $2,500,000.
9.6
Upon the notice to proceed for construction, the County will invoice the City for
$1,250,000, half of the City's total cost share contribution.
9.7
Upon substantial completion of the Project, the County will invoice the City for
$1,250,000, the remaining balance of the City's cost share contribution.
9.8
The County shall be financially responsible for time spent by their staff working on
the Project. The cost shall not be credited toward the County's Project Cost share
obligation.
9.9
The County will perform all inspections related to the Project. The County will
coordinate with and obtain City approval for any significant plan deviations prior to
their acceptance.
9.10 The County will provide the City the Project's pavement mix designs, testing
results, as-built plans, inspection certificates, and warranty certificates.
9.11
The City shall be responsible for the all striping associated with the Project east of
71st Avenue on Lower Buckeye Road.
9.12 The County will ask the City to perform a final inspection, and the County will
complete any associated punch list items prior to City acceptance.
Page 2 of 8
10.
Responsibilities of City:
10.1
The City will issue no-cost permits to the County, for any necessary Project related
work performed within City's jurisdiction.
10.2 The City authorizes the County to purchase, and if necessary condemn, properties
within the City for the purpose of the Project.
10.3 The City will provide comments to the County within 15 working days of receipt of
the Design Plans and Design Documents from the County.
10.4 The City will remit payment to the County as set forth in paragraph 10.5 through
10.8 of this Agreement. The City's contribution is capped at $2,500,000 as per City
Ordinance S-45239.
10.5
The City shall be financially responsible for time spent by their staff working on the
Project. The cost shall not be credited toward the City's Project Cost share
obligation.
10.6 The City will remit payment within thirty (30) days of the receipt of each invoice
from the County.
10.7 The City will begin the process of annexing the roadway and the area within the
limits of the Project within 90 days of Project substantial completion and, the City
will accept responsibility for all permitting, operation, maintenance and traffic
control for the Project until the City's annexation process is complete.
GENERAL TERMS AND CONDITIONS
11.
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
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, 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.
12.
This Agreement will 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.
Page 3 of 8
13.
This Agreement is subject to the provisions of A.R.S. Section 38-511.
14.
The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
acknowledge that:
14.1 Any contractor or subcontractor who is contracted by a Party to perform work on
the Project will 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 will keep a record of the verification for the duration of the
employee's employment or at least 3 years, whichever is longer.
14.2 Any breach of the warranty will be deemed a material breach of the contract that
is subject to penalties up to and including termination of the Agreement.
14.3 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.
14.4 Nothing in this Agreement makes any contractor or subcontractor an agent or
employee of the Parties to this Agreement.
15.
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.
16.
Each of the following will 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 30 days after
the Defaulting Party receives written notice of such failure from the non-defaulting Party
provided, however, that such failure will not be a Default if the Defaulting Party has
commenced to cure the Default within such 30 day period and thereafter is diligently
pursuing such cure to completion, but the total aggregate cure period shall not exceed 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 will not be required to, exercise any remedies now or hereafter available to it at
law or in equity.
17.
All notices required under this Agreement to be given in writing will be sent to:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch
2901 W. Durango Street
Phoenix, Arizona 85009
Page 4 of 8
City of Phoenix Street Transportation
Attn: Street Department Director
200 West Washington Street, 5th Floor
Phoenix, Arizona 85003
All notices required or permitted by this Agreement or applicable law will 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 will 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, will 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 will be deemed given 24 hours after delivery of the notice to the Postal Service or
courier.
18.
This Agreement does not imply authority to perform any tasks, or accept any responsibility,
not expressly stated in this Agreement.
19.
This Agreement does not create a duty or responsibility unless the intention to do so is
clearly and unambiguously stated in this Agreement.
20.
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.
21.
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 Phoenix 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.
22.
This Agreement is binding upon, and inures to the benefit of, the Parties and their
respective successors and assignees. Neither Party will assign its interest in this
Agreement without the prior written consent of the other Party.
23.
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 will 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.
Page 5 of 8
24.
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 will any waiver be deemed to be a
waiver of a subsequent right obtained by reason of the continuation of any matter
previously waived.
25.
Wherever possible, each provision of this Agreement will be interpreted in such a manner
as to be valid under applicable law, but if any provision is invalid or prohibited under the
law, such provision will be ineffective to the extent of such prohibition or invalidation but
will not invalidate the remainder of such provision or the remaining provisions.
26.
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 will survive the expiration or
earlier termination of this Agreement for a period of 1 year.
27.
Nothing contained in this Agreement will 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 will be for the benefit of any person
or entity not a party to this Agreement, and no such other person or entity will have any
right or cause of action under this Agreement.
28.
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 will expire at the close of business on the first day thereafter
which is not a Saturday, Sunday or legal holiday.
29.
Sections and other headings contained in this Agreement are for reference purposes only
and will not affect in any way the meaning or interpretation of this Agreement.
30.
This Agreement may be executed in two or more counterparts, each of which will be
deemed an original but all of which together will constitute the same instrument. Faxed,
copied and scanned signatures are acceptable as original signatures.
31.
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.
32.
The Parties hereby agree that the venue for any claim arising out of or in any way related
to this Agreement will be Maricopa County, Arizona.
33.
This Agreement will be governed by the laws of the State of Arizona.
34.
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
Page 6 of 8
KieKnudson. P.E.
Street Transportation Director
ACTING C t
i0'17V/
Date
IN WITNESS WHEREOF, the Parties have executed this Agreement.
CITY OF PHOENIX
Recommended by:
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.
LC i
Ct 61 in;7,
AA
Jen , ifer
Tr nspo
IN WITNESS WHEREOF, the Parties have executed this Agreement.
MARICOPA COUNTY
Recommended by:
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 County by the
Board of Supervisors under the laws of the State of Arizona.
Deputy County Attorney
Date
Page 8 of 8