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HomeMy WebLinkAboutRES 20-16RESOLUTION NO. 20-16 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,AUTHORIZING THE CITY TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT FOR ROADWAY SAFETY PROGRAM WITH MARICOPA ASSOCIATION OF GOVERNMENTS. WHEREAS,Maricopa Association of Governments ("MAG")and Arizona Department of Transportation ("ADOT")established the Roadway Safety Program ("RSP")for the specific purpose of achieving reduction in traffic fatalities and serious injuries on public roads; and WHEREAS, MAG, ADOT and the City of Apache Junction ("City") have identified an eligible location within the City that can benefit from this program; and WHEREAS,the RSP funds will be used for safety improvements on Junction Street at Tomahawk Road (the "Project")consisting of channelizing right-hand turns; and WHEREAS,the parties have crafted a written agreement which sets forth the conditions for such arrangement; and WHEREAS, pursuant to A.R.S. §§ 11-952(A)and 28-401, public entities may enter into agreements with each other for joint or cooperative activities. NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION ARIZONA, AS FOLLOWS: 1)The mayor and city council approve the form of the intergovernmental agreement for RSP set forth in Attachment A; and the mayor is hereby authorized to sign the agreement on behalf of the City. 2)The city manager and/or his designee is authorized and directed to take all steps necessary to carry out the purpose and intent of this resolution and to fulfill all the duties required under the agreement. RESOLUTION NO. 20-16 PAGE 1 OF 2 PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,THIS ,„2/DAY OF z30,40," 2020. SIGNED AND ATTESTED TO THIS 0,..2/DAY OF Jeff *ohlidy Mayor ATTEST: Jenifer Pena City Clerk APPROVED AS TO FORM: RICHARD J. STERN City Attorney RESOLUTION NO. 20-16 PAGE 2 OF 2 2020. Attachment A MARICOPA A bigo th,1413130CLATION of GOVERNMENTS' MARICOPA ASSOCIATION OF GOVERNMENTS ROADWAY SAFETY PROGRAM JOINT AGENCY AGREEMENT MAG Roadway Safety Program, Joint Agency Agreement No. 1059 MAG TIP Project # APJ19-871D, APJ20-871C, City of Apache Junction Capital Improvement Plan #90 ON TIE MOVE nEIM This Joint Agency Agreement (Agreement)by and between the Maricopa Association of Governments ("MAG"),an Arizona non-profit corporation,and City of Apache Junction,an Arizona municipal corporation,will become effective on the day,which it is executed by the MAG Executive Director. MAG and the City are referred to in this Agreement each individually as a "Party"and collectively as the "Parties". RECITALS A.MAG is the regional planning agency for Maricopa County and portions of Pinal County.MAG is governed by a regional council, which includes the mayor or chief executive of each member agency ("Regional Council").Pursuant to state law,MAG has developed,and the necessary Parties have approved,a twenty-year comprehensive,performance based,multimodal MAG 2040 Regional Transportation Plan ("RTP"). The Regional Roadway Safety Improvement Program ("RSP") is a component of the RTP that includes safety improvements with a revenue allocation through 2025. B.Funds for the RSP are administered by the Arizona Department of Transportation ("ADOT") through its Highway User Revenue ("HURF")sub -account for local agency streets designated "collector" or above, and through allocations of Surface Transportation Block Grant ("STBG") Funds that are allocated to the MAG region and administered by ADOT. Funds will be disbursed by ADOT once an invoice is reviewed and approved in concurrence with MAG. HURF for the RSP are provided by ADOT and are allocated to the RSP via a funding exchange with the MAG region. Eligible activities must adhere to Article IX, Section 14, of the Arizona Constitution. C.The RSP includes a safety improvement project on Junction Street at Tomahawk Road consisting of a channelizing right turn within the city of Apache Junction ("Project"). The Project is described in greater detail in the Project Application ("Project Application") submitted by City, dated November 7, 2019 and on file in the offices of City and MAG. D.The Project will be designed and constructed in accordance with the standards adopted by City. Page 1 of 9 2020-001-CAJ E.The regional reimbursement schedule for the Project are as follows: Type of Work Fiscal Year of Work Reimbursement Type of Reimbursement Funds Fiscal Year for Reimbursement Pre -Design . Ilak N/A Local . N/A Design .FY2019 $10,000.00 Local . 2019 Right -of -Way N/A N/A Local N/A Procurement . FY2020 Included below HURF FY2020 Construction FY2020 $50,364.00 HURF . FY2020 Total Programmed for Reimbursement $50,364.00 F.The Parties are authorized to enter into this agreement by the provisions of Arizona Revised Statutes ("A.R.S.") Section 28-6501 et seq.,A.R.S. Section 11-951 et seq.,which authorizes City and MAG to enter into joint agency agreements. AGREEMENT NOW, THEREFORE, for good and sufficient consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: A.Purpose.The purpose of this Agreement is to identify and define the responsibilities of City and MAG for the design, acquisition of right-of-way, construction and financing of the Project, as established in the RSP. B.Responsibilities of the Parties. 1.MAG's Responsibilities. a.Administer the RSP, pursuant to the RSP policies and procedures which are on file with the Parties; b.Provide to City the required format for submitting requests for payment, invoices, progress reports and backup documentation; c.Review and approve invoices for projects to be reimbursed with HURF subject to the terms of this Agreement; d.Submit approved invoices to ADOT for payment by ADOT to City. The payments from ADOT to City will be based on the reimbursement amounts and schedule as noted in the Recitals, Section E.The basis for payment to City shall be reimbursement for costs in conformance with the RSP and the policies and procedures. Page 2 of 9 2020-001-CAJ 2.City Responsibilities. a.Be responsible for all Project costs and submit invoices to MAG for reimbursement. City will:1)be responsible for the completion of all surveys,design,plans and specifications,including contractor selection documents;2)conduct contractor selection process(es), award contract(s) for construction pursuant to the applicable laws and ordinances,and provide necessary construction management and inspections, unless noted otherwise in an intergovernmental agreement (IGA); 3) if necessary, purchase or condemn right-of-way required for the completion of the Project,unless otherwise provided in an IGA;4)be responsible for all utility relocations,and 5)review and approve invoices from its contractors and subcontractors before submitting an invoice to MAG; b.Abide by the RSP policies and procedures throughout the completion of the Project. c.Be responsible for meeting all applicable federal requirements for the Project when using local funding (e.g.National Highway System requirements); d.Obtain appropriate indemnifications and insurance from all contractors and subcontractors involved in the Project; e.Be responsible for all Project costs in excess of the maximum amount of the RSP- MAG funds allocated for the Project in the amount of $50,364.00 ("Allocated Funds"). The amount of funds to be paid to City pursuant to this Agreement will not exceed the Allocated Funds as included in the MAG approved Transportation Improvement Program ("TIP").The allocated funds are expressed in year of expenditure dollar amounts, which will not be adjusted for inflation; f.Provide invoices and progress reports to MAG consistent with the RSP policies and procedures; and g.Otherwise comply with all requirements of this Agreement. h.Authorize the public works director or designee as City representative to sign, approve and submit invoices to MAG. C.Records and Audit Rights.City's work and accounting records (hard copy, as well as computer readable data), and any other supporting evidence deemed necessary by MAG to substantiate charges and claims related to this Agreement shall be open to inspection and subject to audit and/or reproduction by authorized representatives of MAG, ADOT and the Auditor General of the State of Arizona (collectively Auditors),as applicable to the extent necessary to adequately permit evaluation and verification of the performance and cost of the work, and to conduct and prepare all audits and reports required by law. Auditors shall be afforded access, at reasonable times and places, to all of City records and personnel, pursuant to the provisions of this section, throughout the term of this Agreement, and for a period of five (5) years after last or final payment. Page 3 of 9 2020-001-CAJ D.Term and Termination.This Agreement is valid through the payment of the final invoice for completion of construction, by the end of fiscal year 2020, or July 30, 2021 as noted in the reimbursement schedule of the Recitals,section E whichever is later,subject to earlier termination as specifically provided herein. 1.Termination by MAG.MAG reserves the right to terminate this Agreement in the event that MAG determines, in its reasonable discretion, that local or MAG allocated funds are not available to meet the City's financial responsibilities in regard to the Project or in the event of an act of God or act of war or terror that makes continuation of work pursuant to this Agreement no longer in the public interest. MAG will give sixty (60) calendar days advance notice of such termination, unless such notice is impracticable, in which case MAG will provide such notice as is practicable under the circumstances. In the event of such termination, MAG will recommend to ADOT that it reimburse City as provided in this Agreement, for work satisfactorily performed to the date of termination. MAG also reserves the right to terminate this Agreement in the following circumstances: 1)no Material Project Reimbursement Request ("MPRR")has been submitted to MAG for a period of at least eighteen (18) months from the date of the last Project Reimbursement Request ("PRR"), or the effective date of this Agreement, whichever is later; 2) no Substantial Project Reimbursement Request ("SPRR") has been submitted to MAG for a period of twenty (20)months from the date of the last PRR, or the effective date of this Agreement, whichever is later; or 3) in the event of a Substantial Project Change. 2.Termination by City.City reserves the right to terminate this Agreement in the event that City determines, in its reasonable discretion,that local funds are not available to meet City's financial responsibilities in regard to the Project or in the event of an act of God or act of war or terror that makes continuation of work pursuant to this Agreement no longer in the public interest. City will give sixty (60)calendar days advance notice of such termination, unless such notice is impracticable under these circumstances, in which case City will provide such notice, as is practicable. 3.Termination by Mutual Consent.The Parties may terminate this Agreement by mutual consent in the event that they determine that such termination is in furtherance of the goals of the RSP and is in the best interests of the Parties. 4.In the event of termination pursuant to this section, City agrees that it will leave the Project in a condition that is safe for usc by the public. E.Availability of Funds.Each Party's obligations under this Agreement are conditioned upon the availability of funds, appropriated or allocated,for the payment of such obligation.N o liability shall accrue to MAG in the event MAG declines to review and/or approve invoices for payment on the basis that funds are not available for payment of such invoices and MAG terminates the Agreement in accordance with section (D) (1). F.Indemnification.Each Party to this Agreement agrees to defend, indemnify and hold harmless each other, and its officers, officials, employees,agents,and directors from and against any Page 4 of 9 2020-001-TOJ and all claims, demands, losses, liabilities, causes of action and costs (including expert witness fees, attorneys fees and costs of defense and appellate appeal)(collectively "Claims"),which may be imposed upon,incurred by or asserted against each other,attributable (directly or indirectly)to,or arising in any manner by reason of,the negligence,error,or omission of any agent,officer,servant,or employee of each other,or anyone for whom the Parties may be legally liable, in the performance of this Agreement. G.Conflict of Interest.This Agreement is subject to termination for conflict of interest, pursuant to the provisions of A.R.S.5 38-511. H.Ownership of Improvements upon Termination.Upon the expiration or other termination of this Agreement,ownership of the Project and the improvements constructed under this Agreement shall be vested in City. I.General Provisions. 1.INCORPORATION OF RECITALS.The Recitals are acknowledged by the Parties to be substantially true and correct, and hereby incorporated as agreements of the Parties. 2.ENTIRE AGREEMENT. This Agreement and any attachments represent the entire agreement between City and MAG and supersede all prior negotiations, representations or agreements, either express or implied, written or oral.It is mutually understood and agreed that no alteration or variation of the terms and conditions of this Agreement shall be valid unless made in writing and signed by the Parties hereto.Written and signed amendments shall automatically become part of the Supporting Documents, and shall supersede any inconsistent provision therein; provided,however,that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary. 3.OFFICIAL COPIES.Upon date of execution by the MAG Executive Director, City shall receive a signed copy of the agreement within 14 calendar days of execution. 4.APPLICABLE LAW AND VENUE.The terms and conditions of this Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona.Any action at law or in equity brought by either party for the purpose of enforcing a right or rights provided for in this Agreement, shall be tried in a court of competent jurisdiction in Maricopa County, State of Arizona.The parties hereby waive all provisions of law providing for a change of venue in such proceeding to any other county.In the event either party shall bring suit to enforce any term of this Agreement or to recover any damages for and on account of the breach of any term or condition in this Agreement, it is mutually agreed that the prevailing party in such action shall recover all costs including: all litigation and appeal expenses, collection expenses, reasonable attorney fees, necessary witness fees and court costs to be determined by the court in such action. 5.MODIFICATIONS.Except as otherwise specifically provided in this Agreement, any amendment, modification or variation from the terms of this Agreement shall be in writing and shall be effective only after written approval of all Parties. Page 5 of 9 2020-001-TOJ 6.ATTORNEY FEES.In the event either Party brings any action for any relief, declaratory or otherwise, arising out of this Agreement, or on account of any breach or default of this Agreement, the prevailing Party shall be entitled to receive from the other Party reasonable attorney fees and reasonable costs and expenses, as determined by the arbitrator or court sitting without a jury, which shall be deemed to have accrued on the commencement of such action and shall be enforceable, whether or not such action is prosecuted to judgment. • 7.NOTICES. All notices or demands required to be given,pursuant to the terms of this Agreement, shall be given to the other Party in writing, delivered in person, sent by facsimile transmission, deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, or deposited with any commercial air courier or express service at the addresses set forth below, or to such other address as the Parties may substitute by written notice,given in the manner prescribed in this paragraph. If to City: If to MAG: Mike Weyer City of Apache Junction Public Works Director 575 East Baseline Avenue Apache Junction, AZ 85119 Tel: (480) 474-8513 Fax: (480) 983-5752 Executive Director Maricopa Association of Governments 302 No. First Avenue Suite 300 Phoenix, Arizona 85003 Tel:(602) 254-6300 Fax:(602) 254-6490 A notice shall be deemed received on the date delivered, if delivered by hand, on the day it is sent by facsimile transmission, on the second day after its deposit with any commercial air courier or express services or, if mailed, three (3) working days (exclusive of United States Post Office holidays) after the notice is deposited in the United States mail as above provided, and on the delivery date indicated on receipt, if delivered by certified or registered mail.Any time period stated in a notice shall be computed from the time the notice is deemed received. Notices sent by facsimile transmission shall also be sent by regular mail to the recipient at the above address. This requirement for duplicate notice is not intended to change the effective date of the notice sent by facsimile transmission.E-mail is not an acceptable means for meeting the requirements of this section unless otherwise agreed in writing. 8.FORCE MAJEURE.Neither City nor MAG, as the case may be, shall be considered not to have performed its obligations under this Agreement in the event of enforced delay (an "Enforced Delay") due to causes beyond its control and without its fault or negligence or failure Page 6 of 9 2020-001-TOJ to comply with applicable laws, including, but not restricted to, acts of God,fires,floods, epidemics, pandemics, quarantine, restrictions, embargoes, labor disputes, and unusually severe weather or the delays of subcontractors or materialrnen due to such causes, acts of a public enemy,war,terrorism or act of terror (including but not limited to bio-terrorism or eco- terrorism), nuclear radiation, blockade, insurrection, not, labor strike or interruption, extortion, sabotage,or similar occurrence or any exercise of the power of eminent domain of any governmental body on behalf of any public entity, or a declaration of moratorium or similar hiatus (whether permanent or temporary) by any public entity directly affecting the obligations under this Agreement.In no event will Enforced Delay include any delay resulting from unavailability for any reason of labor shortages, or the unavailability for any reason of particular consultants,subcontractors,vendors or investors desired by MAG in connection with the obligations under this Agreement.In the event of the occurrence of any such Enforced Delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for a period of the Enforced Delay; provided, however, that the Party seeking the benefit of the provisions of this Section shall, within thirty (30) calendar days after such Party knows or should know of any such Enforced Delay, first notify the other Party of the specific delay in writing and claim the right to an extension for the period of the Enforced Delay; and provided further that in no event shall a period of Enforced Delay exceed ninety (90) calendar days. 9.ADVERTISING.No advertising or publicity concerning MAG using any contractor's or subcontractor's services shall be undertaken without prior written approval of such advertising or publicity by MAG's Executive Director. 10.COUNTERPARTS. This Agreement may be executed in one or more counterparts, and each originally executed duplicate counterpart of this Agreement shall be deemed to possess the full force and effect of the original. 11.CAPTIONS.The captions used in this Agreement are solely for the convenience of the Parties,do not constitute a part of this Agreement and are not to be used to construe or interpret this Agreement. 12.SEVERABILITY.City and MAG each believe that the execution, delivery and performance of this Agreement are in compliance with all applicable laws.However, in the unlikely event that any provision of this Agreement is declared void or unenforceable (or is construed as requiring City to do any act in violation of any applicable laws, including any constitutional provision, law, regulation, or city code), such provision shall be deemed severed from this Agreement and this Agreement shall otherwise remain in full force and effect; provided that this Agreement shall retroactively be deemed reformed to the extent reasonably possible in such a manner so that the reformed agreement (and any related agreements effective as of the same date)provide essentially the same rights and benefits (economic and otherwise)to the Parties as if such severance and reformation were not required.Unless prohibited by applicable laws, the Parties further shall perform all acts and execute,acknowledge and/or deliver all amendments, instruments and consents necessary to accomplish and to give effect to the purposes of this Agreement, as reformed. 13.AUTHORITY.Each Party hereby warrants and represents that it has full power and authority to enter into and perform this Agreement, and that the person signing on behalf of each has been properly authorized and empowered to enter this Agreement. Each Party further Page 7 of 9 2020-001-TOJ acknowledges that it has read this Agreement,understands it,and agrees to be bound by it. 14.E -VERIFY. a.Warrant of Compliance.Pursuant to the provisions of A.R.S. § 41-4401, each Party warrants to the other that it is in compliance with all Federal Immigration laws and regulations that relate to its employees and with the E -Verify Program under A.R.S. § 23-214(A). b.Breach of Warranty.A breach of this warranty by a Party or any of its subcontractors will be considered a material breach of this Agreement and may subject the breaching party to penalties up to and including termination of this Agreement or any subcontract. c.Right to Inspect.Each Party retains the legal right to inspect the papers of any employee who works on this Agreement or any subcontractor to ensure compliance with the warranty given above. d.Random Verification.Either Party may conduct a random verification of the employment records of the other to ensure compliance with this warranty. e.Federal Employment Verification Provisions — No Material Breach.A Party will not be considered in material breach of this Agreement if it establishes that it has complied with the employment verification provisions prescribed by 8 U.S.C.A. § 1324(a) and (b) of the Federal Immigration and Nationality Act and the E -Verify requirements prescribed by A.R.S. § 23-214(A). f.Inclusion of Article in Other Contracts:The provisions of this Article must be included in any contract either Party enters into with any and all of its contractors or subcontractors who provide services pursuant to this Agreement. g.Prohibition to Contract with Agencies Who Engage in Boycott of the State of Israel: The Parties acknowledge A.R.S. §§ 35-393 through 35-393.03, as amended, which forbids public entities from contracting with agencies who engage in boycotts of the State of Israel.Should MAG under this Agreement engage in any such boycott against the State of Israel, this Agreement shall be deemed automatically terminated by operation of law.Any such boycott is a material breach of contract. 15.PROHIBITION O F DOING BUSINESS WITH SUDAN AND IRAN.Pursuant to A.R.S.g5 35-391.06 and 35-393.06, each Party certifies that it does not have a scrutinized business operation, as defined in A.R.S. §§ 35-391 and 35-393, in either Sudan or Iran. 16.TIME IS OF THE ESSENCE.Time is of the essence with respect to all provisions in this Agreement.Any delay in performance by either Party shall constitute a material breach of this Agreement. Page 8 of 9 2020-001-TOJ IN WITNESS WHEREOF, the Parties hereto have caused these presents to be executed by their duly authorized officers. (The order for obtaining the signatures is as follows: the MAG General Counsel, the appropriate representative of the City of Apache Junction, and the MAG Executive Director). Date Date COUNSEL APPROVAL AS TO FORM: Maricopa Association of Governments, an Arizona non-profit corporation By: Eric Anderson Executive Director County City: City of Apache Junction, an Arizona municipal corporation By: Jeff Serdy Mayor ATTEST: Jennifer Pella City Clerk I have read this Agreement and have determined such Agreement is in proper form and is entered into within the powers of and authority granted under the laws of the State of Arizona. sl3120 EY"Date I have read this Agreement and have determined such Agreement is in proper form and is entered into within the powers of and authority granted under the laws of the State of Arizona. Richard J. Stern, City Attorney Date Page 9 of 9 2020-001-TOJ