2023-08-10_IGA-LP-OM- PC 284 CAMELBACK-ROAD-DRAINAGE-CHANNEL-8-7-2023-FINAL-DRAFT-DOCX.PDF
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INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY AND THE CITY OF LITCHFIELD PARK FOR THE MAINTENANCE AND OPERATION RESPONSIBILITIES FOR DRAINAGE CHANNEL ON CAMELBACK ROAD FROM 137TH AVENUE TO 127TH AVENUE This Intergovernmental Agreement is for the Maintenance and Operation Responsibilities for Camelback Road from 137th Avenue alignment to 127th Avenue is entered into between the County of Maricopa, a political subdivision of the State of Arizona (County), and by the City of Litchfield Park, a municipal corporation (Litchfield Park). Maricopa County and Litchfield Park 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. 2. Public agencies are authorized, pursuant to A.R.S. §§ 11-951 et. seq., to enter into Intergovernmental Agreements for the provision of services or for joint or cooperative action. 3. The Cities are authorized, pursuant to A.R.S. § 9-240 and §§ 9-276 et. seq., to lay out and establish, regulate, and improve streets within the Cities and to enter into this Agreement. BACKGROUND 4. Camelback Road from 137th Avenue to 127th Avenue is a 5-lane arterial roadway with a median within the city limits of Litchfield Park, bounded on the north by a Glendale ten-foot (10‘) Strip Annexation. 5. December 8, 2021, Maricopa County and Litchfield Park entered into an Intergovernmental Agreement (C-64-22-096-X-00), recorded with the Maricopa County Recorder’s Office on February 10, 2022 (20220123669) for the Improvements and Annexation Camelback Road from the 145th Drive Alignment to 127th Avenue (2021 IGA). 6. The 2021 IGA identified and defined the responsibilities of the County and Litchfield Park for various elements, which include but were not limited to, cost sharing, design, permitting, environmental clearances, right-of-way acquisitions, utility relocation, construction and construction management, and annexation of all County right-of-way the roadway which includes the drainage channel on the north side of the corridor (the “Project”). 7. Litchfield Park’s annexation of the Project on April 14, 2022 (Ordinance 22-257) unintentionally encroached into Glendale’s 10’ Strip Annexation that went into effect on June 11, 1978 (Ordinance 1020). On October 19, 2022, Litchfield Park approved Ordinance 22-262 correcting the encroachment. On August 8, 2023, the Maricopa County Board of Supervisors approved Ordinance 22-262 to correct the encroachment and revise Litchfield Park’s jurisdictional boundary, not to include Glendale’s strip annexation. 8. No provision of this Agreement shall be construed or interpreted in a manner that would undermine, divide, dissolve, breach, or re-arrange the City of Glendale annexation boundaries. DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC 9. Litchfield Park shall gain access to the drainage channel at 127th Avenue and at multiple commercial complex access points. PURPOSE OF THE AGREEMENT 10. This Agreement aims to establish maintenance and operations of the drainage channel not currently annexed into Litchfield Park and acknowledge Glendale’s 10-foot strip annexation along Camelback Road once the Project is complete. TERMS OF THE AGREEMENT 11. Maricopa County shall: 11.1 Not review plans for any work under this Agreement and shall not be liable for any design, construction, permitting, operation, and maintenance deficiencies. 11.2 Not maintain or operate the drainage channel along the north side of Camelback Road between 137th to 127th Avenue. 12. Litchfield Park shall: 12.1 Be responsible and liable for the design and construction of the Project Improvements as provided for in the 2021 IGA. 12.2 Be responsible for coordinating all necessary reviews, approvals, and permitting with Glendale for the Project Improvements. 12.3 Following the completion of the Project, accept full responsibility and liability for the operations and maintenance of the drainage channel and the right-of-way pursuant to the terms of the 2021 IGA with Maricopa County. GENERAL TERMS AND CONDITIONS 13. 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 liability, 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, including but not limited to injuries or death of persons or damages to or destruction of property. 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. 14. This Agreement shall become effective as of the date the governing bodies of the Parties execute it and shall remain in full force and effect until all stipulations previously indicated have been satisfied. 15. This Agreement may be amended only upon written Agreement by all Parties. DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC 16. This Agreement is subject to A.R.S. § 38-511 provisions. 17. The Parties warrant that they are in compliance with A.R.S. § 41-4401 and further acknowledge that: 17.1 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. § 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. 17.2 Any breach of the warranty shall be deemed a material breach of this agreement, of which the breaching party may be liable for penalties, including termination of the agreement. 17.3 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. 17.4 Nothing in this Agreement shall make any contractor or subcontractor an agent or employee of the Parties to this Agreement. 18. Any contractor or subcontractor who engages in for-profit activity and has 10 or more employees, if the value of the contract is a minimum of $1,000,000, certify it is not currently engaged in, and agrees for the duration of this Agreement to not engage in, a boycott of goods or services from Israel. This certification does not apply to a boycott prohibited by 50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842. 19. Each Party warrants and certifies that no contractor or vendor under contract with the Party to provide goods or services toward the accomplishment of the objectives of this Agreement currently has, and for the duration of the contract will not, use: 1. The forced labor of ethnic Uyghurs in the People's Republic of China. 2. Any goods or services produced by the forced labor of ethnic Uyghurs in the People's Republic of China. 3. Any contractors, subcontractors, or suppliers that use the forced labor or any goods or services produced by the forced labor of ethnic Uyghurs in the People's Republic of China. If any Party becomes aware during the term of the Agreement that any contractor or vendor needs to be in compliance with this paragraph, the Party shall notify the other Party within five business days of becoming aware of the noncompliance. Failure of the Party to provide a written certification that the contractor or vendor has remedied the noncompliance within one hundred eighty (180) days after notifying the public entity of its noncompliance, this Agreement shall terminate unless the Term of this Agreement shall end prior to said one hundred eighty (180) day period. DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC 20. It shall be a material breach of this Agreement for a Party to fail to observe or perform any of the material covenants, conditions, or provisions of this Agreement, where such failure shall continue for a period of thirty (30) days after the non-defaulting Party provides the defaulting Party with written notice of such failure; 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. The total aggregate cure period shall be ninety (90) days unless the Parties otherwise agree in writing. In the event of Default, the non-defaulting Party, at its option, may terminate this Agreement without waiving any available remedies at law or in equity. 21. All notices required under this agreement to be given in writing shall be sent to: Maricopa County Attn: Intergovernmental Relations Branch 2901 West Durango Street Phoenix, Arizona 85009 City of Litchfield Park Attn: City Manager 214 West Wigwam Boulevard Litchfield Park, Arizona 85340 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 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 specify a different address for notice by written notice to the other. 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 an overnight courier that guarantee next-day delivery shall be deemed given 24 hours after delivery of the notice to the Postal Service or courier. 22. This Agreement does not imply authority to perform any tasks or accept any responsibility not expressly stated in this Agreement. 23. This Agreement does not create a duty or responsibility unless the intention to do so is clearly and unambiguously stated in this Agreement. 24. 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. 25. Any funding 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 Litchfield Park City Council in such fiscal year. Any Party may terminate this Agreement at the end of any fiscal year due to non-appropriation of funds. DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC 26. 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. 27. This Agreement and all Exhibits attached to this Agreement set forth all the covenants, promises, agreements, conditions, and understandings between the Parties to this Agreement with respect to the matters covered herein, 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. Each Party has reviewed this Agreement and has had the opportunity to have it reviewed by legal counsel. 28. The waiver by any Party of any right granted 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. 29. 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. 30. 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. 31. Nothing in this Agreement shall create any partnership, joint venture, or other agreement between the Parties. 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. No other person or entity shall have any right or cause of action under this Agreement. 32. 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. Suppose 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. In that case, 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. 33. Sections and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 34. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all constitute the same instrument. Electronic signatures are acceptable as original signatures. 35. Any funding provided for in this Agreement, other than in the current fiscal year, is contingent upon being budgeted and appropriated by the governing bodies of the Parties in such fiscal year. DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC 36. 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. 37. The Parties will 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. 38. Maricopa County, Arizona, shall be The venue for any claim arising out of or in any way related to this Agreement. 39. If there is any conflict between this Agreement and the 2021 Agreement, the 2021 Agreement shall control in all circumstances. 40. The laws of the State of Arizona shall govern this Agreement. End of Agreement - Signature Page Follows DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC IN WITNESS WHEREOF, the Parties have executed this Agreement. CITY OF LITCHFIELD PARK Recommended by: Matthew Williams Date City Manager Approved and Accepted by: Thomas L. Schoaf Date Mayor Attest by: 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 City Attorney, who has determined that it is in proper form and within the powers and authority granted to the City Council under the laws of the State of Arizona. City Attorney Date IN WITNESS WHEREOF, the Parties have executed this Agreement. DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC MARICOPA COUNTY Recommended by: Jesse Gutierrez Date Transportation Director 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 DocuSign Envelope ID: 4E355795-B4CE-4F72-811F-1E65CD989BDC 8/7/2023 8/8/2023