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HomeMy WebLinkAboutRes 2011-23RESOLUTION NO. 2011-23 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE STATE OF ARIZONA RELATING TO THE ACQUISITION OF GUARDRAILS FOR VARIOUS LOCATIONS IN THE TOWN. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows. SECTION 1. The Intergovernmental Agreement between the Town of Fountain Hills (the "Town ") and the State of Arizona relating to the acquisition of guardrails for various locations in the Torun (the "Agreement ") is hereby approved in substantially [lie form attached hereto as Exhibit A and incorporated hercin by reference. SECTION 2. The Mayor, the Town ,Manager, the Town Clerk and the Town Attorney are hereby authorized and directed to cause the execution of the Agreement and to take all steps necessary to carry out the purpose and intent of this Resolution. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, June 16, 2011. FOR THE TONVN OF FOUNTAIN HILLS: T . Schlum, Mayor REVIEWED BY: Richard L. Davis, Town Manager 1519050.1 ATTESTED TO: _5 M., W10 11 krm. 0 j� er, A APPROVED AS TO FORM: Andrew J. McGuire, Town Attorney EXHIBIT A TO RESOLUTION NO. 2011-23 [Intergovernmental Agreement] See following pages. 1519050.1 ADOT File No.: IGA/JPA 11 -0621 AG Contract No.: P001 201 1 001 836 Federal Aid No.: FTH- 0(206)A Project: Guardrails Section: Various Locations ADOT Project No.: SH48101 C TIPISTIP No.: FTH11 -105 Budget Source Item No.: HSIP Local 72811 132,90 INTERGOVERNMENTAL AGREEMENT BETWEEN THE STATE OF ARIZONA AND TOWN OF FOUNTAIN HILLS THIS AGREEMENT is entered into this date June- 30 , 2011, pursuant to the Arizona Revised Statutes § 11 -951 through 11 -954, as amended, between the STATE OF ARIZONA, acting by and through its DEPARTMENT OF TRANSPORTATION (the "State ") and the TOWN OF FOUNTAIN HILLS, acting by and through its MAYOR and TOWN COUNCIL. (the "Town "). The State and the Town are collectively referred to as "Parties ". I. RECITALS 1. The State is empowered by Arizona Revised Statutes § 28 -401 to enter into this Agreement and has delegated to the undersigned the authority to execute this Agreement can behalf of the State. 2. The Town is empowered by Arizona Revised Statutes § 09 -240 to enter into this Agreement and has by resolution, a copy of which is attached hereto and made a part hereof, resolved to enter into this Agreement and has authorized the undersigned to execute this Agreement on behalf of the Town. 3. Congress has established the Highway Safety Improvement Program (HSIP) as a core Federal - aid for the specific purpose of achieving a significant reduction in traffic fatalities and serious injuries on public roads. The State, the Federal Highway Administration (FHWA) and the Town have identified systematic improvements within the Town as eligible for this funding. 4. The purpose of this joint exercise of powers and cooperative action (i.e. Agreement), by the State and the Town is to allow the State to acquire Federal funds for the purchase of guardrails, hereinafter referred to as the "Project ". The scope includes the replacement of existing guardrail end treatments with new NCHRP -350- and/or MASH - compliant end treatments. This project will also include an evaluation of the existing guardrail installation, The existing installations will be upgraded based on the findings of this evaluation. New guardrail, posts and related hardware will also be procured and installed thru this project. The existing end treatments and associated flare section of guard rail will be removed. The Town, through the State's Procurement Process and Arizona Department of Transportation (ADOT) Procurement contract(s) will utilize an authorized supplier to provide the equipment and services as outlined in the contract and approved Specifications and Terms and Conditions of contract to complete this project with the aid and consent of the State and the FHWA. 5. The interest of the State in this project is the acquisition and distribution of HSIP Funds for the use and benefit of the Town and to authorize such HSIP Funds for the project pursuant to Federal law and regulations. The State shall be the designated agent for the Town. Page 2 The current Project costs are as follows: ADOT Protect No. SH48101C HSIP Funds @ 100% IGA/JPA 11 -062I $46,800.00 'TOTAL Project Costs $46,800.00 '(Includes CE and project contingencies) The Parties acknowledge that the final bid amount may exceed the initial estimate(s) shown above, and in such case, the Town is responsible for, and agrees to pay, any and all eventual, actual costs exceeding the initial estimate. If the final bid amount is less than the initial estimate, the difference between the final bid amount and the initial estimate will be de- obligated or otherwise released from the Project. The Town acknowledges it remains responsible for, and agrees to pay according to the terms of this Agreement, any and all eventual, actual costs exceeding the final bid amount. THEREFORE, in consideration of the mutual Agreements expressed herein, it is agreed as follows: II. SCOPE OF WORK 1. The State will: a. Submit all documentation required to the FHWA containing the above - mentioned Project with the recommendation that funding be approved for procurement. The Project will be performed, completed, accepted and paid for in accordance with the requirements of the Project Specifications and Terms and Conditions. b. Request the maximum HSIP funds programmed for this Project, including Town contract administration costs. Should costs exceed the maximum HSIP funds available it is understood and agreed that the Town will be responsible for any overage. c. Approve the Project, if such project funds are available from and authorized by FHWA for the Project. Be the designated authorized agent for the Town. d. Upon execution of this Agreement, coordinate with the Town regarding the specifics of the equipment to be ordered by the State to best ensure the requirements of the Project are met. Enter into a contract(s) with a firm(s) to whom the award is made for the purpose of the Project. e. Instruct the vendor to deliver equipment directly to the Town for final acceptance and to bill the Town directly. The State will reimburse the Town 80% of allocated funds, up to $37,440.00 within thirty days (30) after receipt and approval of an invoice for equipment purchased under this Agreement. Upon completion of final inspection, the State will reimburse the Town with the remaining federal funds allocated for this Project not to exceed $9,360.00. The total reimbursement to the Town under this Agreement shall not exceed $46,800.00. f. Not be obligated to maintain said Project, should the Town fail to budget or provide for proper and perpetual maintenance as set forth in this Agreement. g. Upon installation of the equipment, verify installation was performed in compliance with FHWA requirements. Page 3 2. The Town will: IGAMPA 11 -062I a. Designate the State as authorized agent for the Town, if such project is approved by the FHWA and project funds are available. b. Be responsible for the cost of installation and any overage of costs exceeding the maximum HSIP funds available for the Project. Agree that the cost of the analysis and work covered by this Agreement is to be borne by FHWA and the Town, each in the proportion prescribed and determined by FHWA. c. Coordinate with the State during the procurement process of the Project. d. Certify that all necessary rights -of -way have been or will be acquired prior to installation of equipment and also certify that all obstructions or unauthorized encroachments of whatever nature, either above or below the surface of the Project area, shall be removed from the proposed right -of -way, or will be removed prior to the start of construction. Coordinate with the appropriate State's Right -of -Way personnel during any applicable right -of -way process performed by the Town. e. Purchase and install the equipment acquired under this Agreement and maintain all improvements provided by this Project for the entire design life of the equipment. f. Be responsible for ensuring all equipment purchased is installed within one (1) year of receipt of equipment. g. Within thirty (30) days of making payment for equipment, invoice the State for reimbursement of up to 80% of the allocated funds, for eligible costs incurred by the Town and provide all necessary backup documentation with said invoice. Upon completion of final inspection and project acceptance by the State, invoice the State for the remaining federal funds allocated not exceed $46,800.00. Be entirely responsible for all costs incurred in performing and accomplishing the work as set forth in this Agreement not covered by federal funding. h. Notify the State when all equipment has been installed and ready for inspection. i. Be responsible for any unforeseen conditions or circumstances which increase the cost of said work. Should a change in the extent or scope of the work called for in this Agreement become necessary, be obligated to incur and pay for increased costs. III. MISCELLANEOUS PROVISIONS 1. The terms, conditions and provisions of this Agreement shall remain in full force and effect until the later of (i) the completion of said Project and (ii) the completion of the work and related deposits and reimbursements, except any provisions for maintenance /electrical power and/or landscaping maintenance shall be perpetual by the Town. Further, this Agreement may be cancelled at any time prior to advertisement of the project construction contract, upon thirty days (30) written notice to the other party. It is understood and agreed that, in the event the Town terminates this Agreement, the State shall in no way be obligated to maintain said Project. 2. The State assumes no financial obligation or liability under this Agreement, or for any resulting construction Project. The Town, in regard to the Town's relationship with the State only, assumes full responsibility for the design, plans, specifications, reports, the engineering in connection therewith and the construction of the improvements contemplated, cost over -runs and construction claims. It is understood and agreed that the State's participation is confined solely to securing federal aid on behalf of the Town and the fulfillment of any other responsibilities of the State as specifically set forth herein; that any damages arising from carrying out, in any respect, the terms of this Agreement or any modification thereof shall be the liability of the Town and that to the extent permitted by law, the Town hereby agrees Page 4 IGA/JPA 11 -062I to save and hold harmless, defend and indemnify from loss the State, any of its departments, agencies, officers or employees from any and all costs and/or damage incurred by any of the above and from any other damage to any person or property whatsoever, which is caused by any activity, condition, misrepresentation, directives, instruction or event arising out of the performance or non performance of any provisions of this Agreement by the State, any of its departments, agencies, officers and employees, or its independent contractors, the Town, any of its agents, officers and employees, or its independent contractors. Costs incurred by the State, any of its departments, agencies, officers or employees shall include in the event of any action, court costs, and expenses of litigation and attorneys' fees. 3. This agreement shall remain in force and effect until completion of the work and related deposits and reimbursements. 4. The cost of equipment under this Agreement is to be covered by the HSIP funds set aside for this Project, up to the maximum available. The Town acknowledges that the eventual actual costs may exceed the maximum available amount of HSIP funds, or that certain costs may not be accepted by the federal government as eligible for HSIP funds. Therefore, the Town agrees to furnish and provide the difference between actual costs and the HSIP funds received. 5. The cost of the project under this Agreement includes applicable indirect costs approved by the FHWA. 6. The Town and the State warrant compliance with the Federal Funding Accountability and Transparency Act of 2006 and associated 2008 Amendments (the "Act "). Additionally, in a timely manner, the Town will provide information that is requested by the State to enable the State to comply with the requirements of the Act, as may be applicable. 7. This Agreement shall become effective upon signing and dating of the Determination Letter by the State's Attorney General. 8. This Agreement may be cancelled in accordance with Arizona Revised Statutes § 38 -511. 9. All books, accounts, reports, files and other records of any Party relating to the Agreement or the work done under this Agreement shall be subject at all reasonable times to inspection and audit by the other Party until five years after the Project is completed. Such records shall be available for inspection upon five business days' notice at the offices of the Party in possession of the records, per Arizona Revised Statutes § 35 -214. To the extent applicable under law, the provisions set forth in Arizona Revised Statutes § 35 -214 and § 35 -215 shall apply to this Agreement. 10. This Agreement is subject to all applicable provisions of the Americans with Disabilities Act (Public Law 101 -336, 42 U.S.C. 12101-12213) and all applicable Federal regulations under the Act, including 28 CFR Parts 35 and 36. The parties to this Agreement shall comply with Executive Order Number 2009 -09 issued by the Governor of the State of Arizona and incorporated herein by reference regarding "Non - Discrimination 11. Non - Availability of Funds: Every obligation of the State or the Town under this Agreement is conditioned upon the availability of funds appropriated or allocated for the payment of such obligations. If funds are not allocated and available for the continuance of this Agreement, this Agreement may be terminated by the State or the Town at the end of the period for which the funds are available. No liability shall accrue to the State or the Town in the event this provision is exercised, and the State or the Town shall not be obligated or liable for any future payments as a result of termination under this paragraph. The Town will comply with any and all federal requirements in the event the Town does not appropriate the funds necessary for continuance of this Agreement. 12. In the event of any controversy, which may arise out of this Agreement, the Parties hereto agree to abide by required arbitration as is set forth for public works contracts in Arizona Revised Statutes § 12- 1518. Page 5 IGAMPA 11 -062I 13. All notices or demands upon any party to this Agreement shall be in writing and shall be delivered in person or sent by mail, addressed as follows: Arizona Department of Transportation Joint Project Administration 205S.17 th Avenue, Mail Drop 637E Phoenix, Arizona 85007 (602) 712 -7124 (602) 712 -3132 Fax Town of Fountain Hills Attn: Randy Harrel 16705 E. Avenue of the Fountains Fountain Hills, Arizona 85268 (480) 816 -5112 (480) 837 -1404 Fax For Town Financial Matters: Vendor# 86065015001 Julie Ghetti, Deputy Town Manager /Finance Director 16705 E. Avenue Of The Fountains Fountain Hills, Arizona 85268 (480) 816 -5113 14. To the extent applicable under Arizona Revised Statutes § 41 -4401, each Party and its contractors and subcontractors warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with the E- verify requirements under Arizona Revised Statutes § 23- 214(A). A breach of the above - mentioned warranty by any Party or its contractors or subcontractors shall be deemed a material breach of the Agreement and may result in the termination of the Agreement by the non - breaching Party. Each Party retains the legal right to randomly inspect the papers and records of the other Party's or its contractors' or subcontractors' employees who work on the Project to ensure that the other Party and its contractors and subcontractors are complying with the above - mentioned warranty. 15. Pursuant to Arizona Revised Statutes § 35- 391.06 and § 35- 393.06, each Party certifies that it does not have a scrutinized business operation in Sudan or Iran. For the purpose of this Section the term "scrutinized business operations" shall have the meanings set forth in Arizona Revised Statutes § 35 -391 and /or § 35 -393, as applicable. If any Party determines that another Party submitted a false certification, that Party may impose remedies as provided by law including terminating this Agreement. 16. In accordance with Arizona Revised Statutes § 11 -952 (D) attached hereto and incorporated herein is the written determination of each party's legal counsel and that the parties are authorized under the laws of this State to enter into this Agreement and that the Agreement is in proper form. Page 6 IGAIJPA 11 -0621 IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above written. TOWN OF FOUNTAIN HILLS STATE OF ARIZONA Department of Transportation By Sc H UM By Mayor SAM MAROU1 , HANI, P.E. Deputy State Engineer, Development ATTEST: By 4�a -6� BEVELYN J. ND Town Clerk IGAIJPA 11 -0621 ATTORNEY APPROVAL FORM FOR THE TOWN OF FOUNTAIN HILLS I have reviewed the above referenced Intergovernmental Agreement between the State of Arizona, acting by and through its DEPARTMENT OF TRANSPORTATION, and the TOWN OF FOUNTAIN HILLS„ an Agreement among public agencies which, has been reviewed pursuant to Arizona Revised Statutes § 11 -951 through § 11 -954 and declare this Agreement to be in proper form and within the powers and authority granted to the Town under the laws of the State of Arizona. No opinion is expressed as to the authority of the State to enter into this Agreement. DATED this I day of J. K 2411. (2L Town Attorney eOey "410 u � c gRtzot4N Tom HORNE OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL TRANSPORTATION SECTION INTERGOVERNMENTAL AGREEMENT DETERMINATION JAMES R. REDPATH ASSISTANT ATTORNEY GENERAL DIRECT LINE: 602- 542 -8837 E-MAIL: JIMAERPATHCG)AZAG.GOV A.G. Contract No. P0012011001836 (IGAMPA 11- 062 -1), an Agreement between public agencies, i.e., The State of Arizona and Town of Fountain Hills, has been reviewed pursuant to A.R.S. § 11 -952, as amended, by the undersigned Assistant Attorney General who has determined that it is in the proper form and is within the powers and authority granted to the State of Arizona. No opinion is expressed as to the authority of the remaining Parties, other than the State or its agencies, to enter into said Agreement. DATED: JRR:In:#2081409 Attachment June 30, 2011 TOM HORNE Attorney General S R. REDPAT Assistant Attorney General Transportation Section 1275 West Washington, Phoenix, Arizona 85007 -2926 • Phone 602 -542 -1680 • Fax 602 - 542 -3646