Intergovernmental Agreement

INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND THE
CITY OF CHANDLER FOR RIGHT-OF-WAY ASSISTANCE FOR:
LINDSAY ROAD FROM OCOTILLO ROAD TO HUNT HIGHWAY

TR222

(C-64-21- -X-00)

This Intergovernmental Agreement (Agreement) is between the County of Maricopa, a political
subdivision of the State of Arizona (County) and the City of Chandler, an Arizona municipal
corporation (City). County and City are collectively referred to in this Agreement as the Parties
or individually as a Party.

STATUTORY AUTHORIZATION

1. A.R.S. § 12-1111(6) authorizes County to exercise the right of eminent domain to obtain
property for roads and streets.

2. A.R.S. § 12-1111(6) authorizes City to exercise the right of eminent domain to obtain
property for roads and streets; however, A.R.S. § 9-276(A)(20) limits such power to
streets and highways within City’s corporate limits.

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

BACKGROUND

4. Lindsay Road is in southeastern Maricopa County within the City of Chandler and
unincorporated Maricopa County. City has designated Lindsay Road a minor arterial
roadway and has proposed to improve Lindsay Road (Project) from Ocotillo Road to
Hunt Highway (Project Area) pursuant to the approved plans for City’s Capital
Improvement Project No. 6ST693.

5. — City plans to construct the Project in Fiscal Years 2023 and 2024 and to annex the
Project upon completion of construction.

6. City may require assistance from County’s Real Estate Department (MCRED) in
acquiring right-of-way, easements and/or temporary construction easements from
owners within unincorporated Maricopa County for the completion of the Project.

7. Each Party has determined that acquisition of property to allow for the completion of the
Project will serve the public good.

8. County acknowledges; understands, and agrees that substantial Project costs will be
paid by federal funds.

PURPOSE OF THE AGREEMENT

9. The purpose of this:Agreement is to identify and define the responsibilities of each Party
for right-of-way acquisitions related to the Project.

TERMS OF THE AGREEMENT

10. County shall:

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10.2

10.3

10.4

10.5

10.6

11. City shall:

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11.2

11.3

11.4

Assist City in obtaining all required right-of-way within unincorporated
Maricopa County required for the Project that City is unable to obtain through
dedication.

Perform the duties outlined in Exhibit A, Section A attached to this Agreement.

Invoice City, based on supporting documentation, monthly for County
employees’ time as it relates to the Project. The invoices for any consultants
performing services in connection with this Agreement shall be submitted to
City.

Issue all necessary permits to City for the Project, and related work conducted
within the County’s jurisdictional boundaries, at no cost to City.

Convey to City all property rights necessary to the Project obtained by County
under this Agreement.

County acknowledges that time is of the essence because substantial Project
costs will be paid by federal funds. County will perform its responsibilities in
accordance with FHWA/ADOT requirements and comply with the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended.

Perform all duties as the lead agency for the Project, including without
limitation, responsibility and liability for the design, right-of-way acquisitions,
utilities and utility relocation, construction and construction management,
inspection, operation, maintenance and all aspects of the Project.

Perform the duties outlined in Exhibit A, Section B attached to this Agreement.

Pay within thirty (30) days of submission, all invoices for County employees’
time as it relates to the Project. The invoices for any consultants performing
services in connection with this Agreement shall be paid directly by City if
County so directs.

Accept all property rights necessary for the Project obtained by County under
this Agreement. Initiate the annexation of the Project upon completion of
construction. The area to be annexed and described within the annexation is
to be submitted to MCRED for review by its Property Engineering for
concurrence.

GENERAL TERMS AND CONDITIONS

42. The Parties mutually consent to the annexation of the Project when completed, and shall

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fully cooperate to achieve said annexation under A.R.S. § 9-471(0).

To the extent permitted by law, each Party will indemnify, defend and save the other

. Party, as well as its departments, agencies, officers, employees, elected officials, and/or

agents, harmless from and against all loss, expense, damage or claim of any nature
whatsoever, including without limitation all injuries or death of persons or damages to or
destruction of property, which is caused by any activity, condition, or event arising out of
the performance or nonperformance under this Agreement by the indemnifying Party.
Indemnification shall not extend to any loss, expense, damage or claim caused or
contributed to by the gross negligence or willful acts of the other Party. The obligation to
indemnify shall include all costs, expenses of litigation, and reasonable attorneys fees.

This Agreement shall become effective as of the date it becomes fully executed. 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.

This Agreement may only be amended upon written Agreement by both Parties.

This Agreement is subject to the provisions of A.R.S. § 38-511.

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

a) 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. § 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.

b) 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.

c) 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.

d) Nothing in this Agreement shall make any contractor or subcontractor an agent or

employee of the Parties to this Agreement.

The Parties warrant that neither it nor any contractor or vendor under contract 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.

Any non-performance shall be a default under this Agreement (Default). The non-
defaulting Party may seek appropriate remedy for Default if the event causing the Default
continues for a period of thirty: (30) days after the defaulting Party receives written notice
of such failure without the Default having been cured; provided however if the defaulting

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Party has commenced to cure the Default within such thirty (30) day period and thereafter
is diligently pursuing such cure to completion, no recourse shall be available to the non-
defaulting Party. The total aggregate cure period shall not exceed ninety (90) days
unless the non-defaulting Party agrees in writing that. additional time is reasonably
necessary under all of the circumstances to cure such Default. In the event of a Default
that is not cured as provided for herein, the non-defaulting Party, at its option, may
exercise any remedies now or hereafter available to it at law or in equity, including the
right to terminate this Agreement.

All notices required under this Agreement shall be given in writing sent to:

Maricopa County Real Estate Department
Attn: Director

2801 W. Durango Street

Phoenix, Arizona 85009

City of Chandler

Attn: Public Works & Utilities Director
P.O. Box 4008, Mail Stop 402
Chandler, Arizona 85244-4008

Chandler City Attorney
P. O. Box 4008, Mail Stop 602
Chandler, Arizona 85244-4008

A Party may by written notice to the other specify a different address for notice.

All notices required or permitted by this Agreement or applicable law may be delivered in
person (by hand or courier) or may be sent by regular, certified mail or U.S. Postal Service
Express Mail, with postage prepaid, or by commercial delivery service that guarantee next
day delivery and shall be deemed sufficiently given if served in a manner specified in this
paragraph. Any notice sent by 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 commercial delivery service
shall be deemed given 24 hours after delivery of the notice to the Postal Service or courier.

Performance under this Agreement is contingent upon any funding, other than in the
current fiscal year, being budgeted and appropriated by the governing body of each in
the then current fiscal year. Termination by either Party due to non-appropriation of funds
shall not constitute a Default under this Agreement.

This Agreement and all Exhibits attached to this Agreement constitute the entire
agreement between the Parties with respect to the subject matter of this Agreement.
This Agreement shall be construed as a whole, in such a manner as to be valid under
applicable law and in accordance with its fair meaning and without regard to any
presumption or other rule requiring construction against the Party drafting this
Agreement. '

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 under this Agreement. ! '

This Agreement shall be governed by the laws of the State of Arizona. Venue for any claim arising
out of or in any way related to this Agreement shall be in Maricopa County, Arizona.
IN WITNESS WHEREOF, the Parties have executed this Agreement.

MARICOPA COUNTY

Recommended by:

Alex Smith Date
Director of Real Estate

Approved and Accepted by:

Chairman Date
Board of Supervisors

Attest by:

Clerk of the Board Date

APPROVAL OF DEPUTY COUNTY ATTORNEY

The.foregoing Agreement has been reviewed pursuant to A.R.S. § 11-952, as amended, by the
undersigned Deputy County Attorney, who has determined that it is in proper form and within the
powers and authority granted to the Board of Supervisors under the laws of the State of Arizona.

Deputy County Attorney Date

CITY OF CHANDLER

Kevin Hartke Date
Mayor

ATTEST:

City Clerk Date

APPROVAL OF CITY ATTORNEY

The foregoing Agreement has been reviewed pursuant to A.R.S. § 11-952, as amended, by the
undersigned Counsel, who has determined that it is in proper form and within the powers and
authority granted to the City of Chandler under the laws of the State of Arizona.

Dal
City Attorney () Date

EXHIBIT A

RIGHT-OF-WAY (ROW) ASSISTANCE

In an effort to streamline the process for appraising and acquiring land rights for the Project in
unincorporated Maricopa County and reduce duplicative effort and cost to City and County
taxpayers,

A. County shall:

IV.

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Collaborate and communicate with City’s Project team on a regular basis to ensure the
MCRED staff or consultant understands the Project’s proposed scope, schedule, and
budget. A MCRED representative or consultant will attend Project meetings and public
meetings as necessary and attend appraisal inspections and offer presentation for the
parcels located in unincorporated Maricopa County.

Provide ROW acquisition phase best practice guidance, training, and sample forms upon
request.

Attend City’s focused ROW phase meeting with City’s Project acquisition and design team
prior to initiating the appraisal process.

MCRED staff or outside consultant will assist with the acquisition of the land rights required
for the Project upon City’s request (ROW Assistance). When a property to be acquired
extends into both municipal and county jurisdiction, County and City shall confer and
attempt to develop a plan whereby all the needed property can be acquired in a single
action, rather than have two litigations proceed at the same time against an owner. County
will:

a. Assume all responsibility for the management of the acquisition and proceed in
accordance with the statutes, policies, and procedures that govern County’s ability to
acquire the land rights.

Within 90 days of the approved IGA, provide City with an estimated budget (for

county/consultant services) and acquisition schedule including specific milestones.

Within 60 days of the approved IGA, initiate the open and declare process.

Request an updated title commitment with County as the proposed insured.

Review the submitted products for statutory and policy compliance.

Determine, in County’s sole discretion, if the submitted appraisal and/or appraisal

review of the areas to be acquired can be used as the basis for County’s offer and/or

an eminent domain filing. If a new appraisal and/or appraisal review is required,

County will order the appraisal.

g. Present an offer to the property owner based on County's or City’s appraisal.

h. Negotiate in good faith to try and address/resolve the property owner's concerns and
obtain agreement to the purchase within 90 days of the offer. After 90 days MCRED
shall communicate the issues with City and discuss possible resolutions.

i. If County is unsuccessful in acquiring the required land rights by agreement from an
owner, the MCRED Real Property Manager will review the file and if approved,
proceed to eminent domain action. MCRED staff will forward the file to the MCAO
for condemnation action.

j.. Cotnty will keep City Project team apprised of the status of each acquisition via
periodic status updates.

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k. . MCAO will communicate directly with the Chandler City Attorney's office concerning
the status of any condemnation action and shall provide the City Attorney or
designee an opportunity to review and comment on a draft of the complaint and any
amendments to the complaint. MCAO shall copy the City Attorney or designee on
significant pleadings filed in the case, including the Complaint, Answer, status
reports, scheduling orders, motions, responses and similar briefs, as well as copies
of any significant rulings from the Court. The joint defense privilege shall apply to all
communications between MCAO and the City Attorney’s office concerning any
condemnation action filed or contemplated to be filed under this IGA.

|. County shall, within no less than ten (10) days prior to concluding any administrative
settlement to purchase property rights required for the Project, seek and duly consider
the City Engineer’s written comments regarding such proposed settlement; provided,
however, that County shall retain final decision-making authority with regard to same.

V. Provide the ROW Assistance outlined above within the timeframe as determined by City
and County to meet the Project schedule.

VI. Determine whether the method of compensation by City for the costs that are set forth in
Paragraph A (VI.) of this Exhibit A shall be direct payment by City to County ’s vendor or
shall be a reimbursement to County.

VII. Invoice City on a monthly basis for any ROW Assistance expenses, including MCRED
staff time, which are not subject to direct payment. County shall provide an invoice that
includes an itemization of expenses being requested for payment.

B. City shall:

Extend invitations, via e-mail, to Project kick-off and status meetings to the Maricopa
County Real Estate Department (MCRED) Real Property Manager, and/or designee,
throughout project scoping and design to better understand and coordinate the following:

a. Project need, objectives, and goals.

b. Project funding sources, scope, schedule, and budget.

c. Maximum scope, and proposed timing, of ROW assistance that may be required
from County which includes a spreadsheet of the land rights that are anticipated
to be acquired from each larger parcel to build the proposed Project (new ROW;
permanent easements, including, but not limited to, utility, slope, and drainage;
and temporary easements). The spreadsheet shall, at a minimum, include
Assessor Parcel Numbers (APNs), full names of ownership entities, larger parcel
square footage, zoning, information on whether the property is vacant or improved,
and the proposed improvements within the acquisition area and impacts of the
ROW acquisition on the remainder.

d. In cooperation with County, determine whether County will pursue the acquisition
of ROW within unincorporated Maricopa County concurrently with City’s
acquisitions or after City has attempted to acquire the ROW within unincorporated
Maricopa County.

Provide design plan submittals at major milestones as well as identify and refine the
spreadsheet referenced in paragraph I(c) above for all Project acquisition parcels and
proposed relocations (if any) that are in unincorporated Maricopa County. Ata minimum,

design plan submittals will be required at 30%, 60%, 95%, and 100%, or per City’s in-
house or contracted design schedule milestones.

Facilitate a focused ROW phase meeting between appropriate representatives from
City’s Project team and the MCRED Real Property Manager, and/or designee, prior to
initiating the appraisal process. The goal of this meeting is to identify best practices for
the coordination between City and County's acquisition teams to include discussing:

a.
b.

The Project acquisition schedule.

Prioritization of the appraisal assignment and acquisitions based on information
obtained in the title reports, the complexity of the appraisal, acquisition, and/or
the need for relocation.

Collaborate on the drafting of the appraisal scope of work, discuss if contracting
with multiple appraisers should be considered, and discuss whether review
appraisers will also be required.

Discuss appropriate appraisal products and required elements of the appraisal
which include adding County as an intended user, offering the owner and
acquisition/relocation agents (City and County) a reasonable opportunity to
attend the appraisal inspection, a determination of the larger parcel for the
purposes of the appraisal, a well-supported highest and best use analysis,
conducting before and after analyses for partial acquisitions, and accounting for
the acquisition and/or movement of all improvements within the acquisition area
and providing applicable cost-to-cure estimates based on bids. See 49 Code of
Federal Regulations (CFR) Part 24.103 and 24.104 for additional guidance.

. Be responsible for:

Ordering and paying for appraisal services.

Making every effort to contact the property owner impacted by the Project to obtain
current/correct mailing addresses and names of the points of contact or
representatives for the offers.

Preparing and presenting a purchase offer to the identified property owner(s) for
the acquisition of the required land rights. The purchase offer shall, at a minimum,
include the items required by Arizona state law and 49 CFR 24.102 as applicable
and every effort shall be made to present the offer in person to those property
owners that reside or maintain a place of business within 50 miles of the Project.
Negotiating in good faith with the relevant property owners to reach an
agreement for the purchase in accordance with 49 CFR Part 24.102, Arizona
state law, and City Code.

Providing relocation assistance to occupants that need to be relocated out of the
acquired ROW and/or for movement of personal property out of the acquired
ROW in accordance with 49 CFR 24.201 through 24.503.

Compensating the property owner for the land rights acquired, any severance
damages, cost-to-cure, all cost incidentals to the transfer of title to the agency
(i.e. escrow fees and related costs) and paying approved reasonable and
necessary relocation benefits based on an approved determination.

Maintaining typed communication logs of the ongoing negotiations, relocation
activities, and concerns raised by the owners, and any responses/resolutions
offered by City.

City will provide-any information requested by County and/or iCounty's consultant
on the proposed-construction or related Project issues to assist in the acquisition

of the land rights and/or relocations.
City further acknowledges that work on County: projects has priority for County
staff.

V. Reimburse County for MCRED staff time and/or pay County’s vendor and/or consultant
directly (at County’s discretion) for all expenses incurred by County for ROW Assistance,
including, but not limited to:

a.
b.
Cc.

Title Reports (i.e., commitments for title insurance, litigation guarantees, updates).
Appraisals & Appraisal Reviews.
Compensation paid for the acquisition of any and all land rights to include any non-
stipulated amount (i.e., a court ordered amount); however, stipulated costs of
acquisition in'excess of 30% of County’s most current appraised fair market value
shall require authorization by the Chandler City Council.
Escrow and closing costs.
All Maricopa County Real Estate Division (MCRED), Attorney’s Office (MCAO) and
expert fees, costs and expenses related to condemnation proceedings.
i. County shall provide City with a rate sheet of hourly rates and or monthly
rates for the MCRED Real Property Manager, or designee, and the
Attorney (MCAO) within 90 days of the approved IGA.

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