HomeMy WebLinkAboutRes 2013-41RESOLUTION NO. 2013-41
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
CONSTRUCTION OF A BIKE LANE ON SHEA BOULEVARD.
BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
FOUNTAIN HILLS as follows:
SECTION 1. The Intergovernmental Agreement with the State of Arizona relating to the
Eastbound Bike Lane Program along Shea Boulevard from Palisades Boulevard to Fountain Hills
Boulevard (the "Agreement ") is hereby approved in substantially the form attached hereto as
Exhibit A and incorporated herein 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, September 5, 2013.
FOR THE TOWN OF FOUNTAIN HILLS:
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REVIEWED BY:
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Kenneth W. Buchanan, Town Manager
2007258.1
ATTESTED TO:
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AS TO FORM:
J. McGuire, Town Attorney
EXHIBIT A
TO
RESOLUTION NO. 2013-41
[Agreement]
See following pages.
2007258.1
ADOT File No.: IGA/JPA 13- 0001687 -I
AG Contract No.: P001 2013 002385
Project: Eastbound (EB) Bike Lane and
Overlay
Section: Shea Boulevard: Saguaro
Boulevard to 144 Street
Federal -aid No.: FTH- 0(209)T
ADOT Project No.: SS451 01 D & 03C
TIPISTIP No.: MAG & CMAQ
Budget Source Item No.: NIA
INTERGOVERNMENTAL AGREEMENT
BETWEEN
THE STATE OF ARIZONA
AND
TOWN OF FOUNTAIN HILLS
THIS AGREEMENT is entered into this date September 20th, 2013 ,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 ".
RECITALS
1. The State is empowered by Arizona Revised Statutes § 28401 to enter into this Agreement and
has delegated to the undersigned the authority to execute this Agreement on behalf of the State.
2. The Town is empowered by Arizona Revised Statutes § 9 -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. The work proposed under this Agreement consists of improvements to Shea Boulevard from
Saguaro Boulevard to 144th Street. The items of work include constructing the southerly (EB) bike lane,
removing and repaving the existing deteriorated paved shoulder at the guardrail areas, re- vegetating the
shoulder grading areas and any other disturbed areas and placing signing, striping and reflective
pavement markers, hereinafter referred to as the "Project ". The Town has completed and will provide the
design plans and the State will advertise, bid and award the construction of the Project. The plans,
estimates and specifications for the Project will be prepared and, as required, submitted to the State and
Federal Highway Administration (FHWA) for its approval.
4. The Town, in order to obtain federal funds for the construction of the Project, is willing to provide
Town funds to match federal funds in the ratio required or as finally fixed and determined by the Town
and FHWA, including actual construction engineering and administration costs (CE).
5. The interest of the State in this Project is the acquisition of federal funds for the use and benefit of
the Town and to authorize such federal funds for the Project pursuant to federal law and regulations. The
State shall be the designated agent for the Town.
6. The Parties shall perform their responsibilities consistent with this Agreement and any change or
modification to the Project will only occur with the mutual written consent of both Parties.
Page 2 IGA/JPA 13- 0001687 -1
7. The federal funds will be used for the construction of the Project, including the construction
engineering and administration cost (CE). The estimated Project costs as follows:
SS451 03C (Construction)
Federal -aid funds @ (94.3 %)
Town's match @ 5.7%
State design review fee (SS451 04D)*
Total Estimated Town Funds
Total Federal Funds
TOTAL Project Construction Costs **
* (Included in the Town Estimated Funds)
** (Includes 15% CE and 5% Project contingencies)
$ 440,000.00
$ 26,596.00
$ 10.000.00
$ 36,596.00
$ 440, 000.00
$ 476,596.00
The Parties acknowledge that the final Project costs 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. Upon execution of this Agreement, be the designated agent for the Town, if the Project is
approved by FHWA and funds for the Project are available.
b. Upon execution of this Agreement, and prior to performing or authorizing any work, invoice
the Town for the State's design review fee, currently estimated at $10,000.00 Once the Project costs
have been finalized, the State will either invoice or reimburse the Town for the difference between
estimated and actual design review and construction costs.
c. Upon receipt of the State's design review fee, review the design plans, specifications and
other such documents and provide services required for the construction bidding and construction
administration of the Project and provide comments to the Town as appropriate.
d. Upon completion of design and prior to bid advertisement, invoice the Town for the Town's
share of the Project construction costs, currently estimated at $26,596.00. Once the Project costs have
been finalized, the State will either invoice or reimburse the Town for the difference between estimated
and actual costs.
e. Submit all documentation required to FHWA containing the above - mentioned Project with the
recommendation that funding be approved for construction. Request the maximum programmed federal
Page 3 IGA/JPA 13- 0001687 -I
funds for the construction of this Project. Upon Authorization, proceed to advertise for and enter into
contract(s) with the consultant(s) for the design and post design of the Project.
f. Upon receipt of the Town's estimated share of the Project construction costs, submit all
documentation required to FHWA with the recommendation that funding be approved for construction.
Request the maximum programmed federal funds for the construction of this Project. Should costs
exceed the maximum federal funds available, it is understood and agreed that the Town will be
responsible for any overage.
g. Upon authorization by FHWA and with the aid and consent of the Town and the FHWA,
proceed to advertise for, receive and open bids, subject to the concurrence of the FHWA and the Town to
whom the award is made, and enter into a contract(s) with a firm(s) for the construction of the Project.
h. Be granted, without cost requirements, the right to enter Town right -of -way as required to
conduct any and all construction and pre- construction related activities for said Project, including without
limitation, temporary construction easements or temporary rights -of -entry on to and over said rights -of-
way of the Town.
i. Notify the Town that the Project has been completed and is considered acceptable,
coordinating with the Town as appropriate to turn over full responsibility of the Project improvements. De-
obligate or otherwise release any remaining federal funds from the construction phase of the Project
within ninety (90) days of final acceptance.
j. 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.
2. The Town will:
a. Upon execution of this Agreement, designate the State as authorized agent for the Town.
b. Upon execution of this Agreement, prior to performing or authorizing any work and within
thirty (30) days of receipt of an invoice from the State, remit to the State the State's design review fee,
currently estimated at $10,000.00. Be responsible for any difference between the estimated and actual
design review and construction costs.
c. Prepare and provide to the State the design plans, specifications and other such documents
and services required for construction bidding and construction of the Project and incorporate comments
from the State as appropriate.
d. Enter into an agreement with the design consultant which states that the design consultant
shall provide professional post- design services as required and requested throughout and upon
completion of the construction phase of the Project.
e. Upon completion of design, within thirty (30) days of receipt of an invoice from the State and
prior to bid advertisement, remit to the State, the Town's Project construction costs, currently estimated at
$26,596.00. Once the Project costs have been finalized, the State will either invoice or reimburse the
Town for the difference between estimated and actual costs.
f. Be responsible for all costs incurred in performing and accomplishing the work as set forth
under this Agreement, not covered by federal funding. Should costs be deemed ineligible or exceed the
maximum federal funds available, it is understood and agreed that the Town is responsible for these
costs, and payment for these costs shall be made within thirty (30) days of receipt of an invoice from the
State.
g. Be obligated to incur any expenditure should unforeseen conditions or circumstances
increase the cost of said work required by a change in the extent of scope of the work requested by the
Page 4 IGA/JPA 13- 0001687 -I
Town. Such changes require the prior approval of the State and FHWA. Be responsible for any
contractor claims for additional compensation caused by Project delays attributable to the Town, payment
for these costs shall be made within thirty (30) days of receipt of an invoice from the State.
h. Certify that all necessary rights -of -way have been or will be acquired prior to advertisement
for bid 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, in accordance with The Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 as amended; 49 CFR 24.102 Basic Acquisition Policies; 49
CFR 24.4 Assurances, Monitoring and Corrective Action, parts (a) & (b) and ADOT ROW Manual: 8.02
Responsibilities, 8.03 Prime Functions, 9.07 Monitoring Process and 9.08 Certification of Compliance.
Coordinate with the appropriate State's Right -of -Way personnel during any right -of -way process
performed by the Town, if applicable.
i. Not permit or allow any encroachments upon or private use of the right -of -way, except those
authorized by permit. In the event of any unauthorized encroachment or improper use, the Town shall
take all necessary steps to remove or prevent any such encroachment or use.
j. Grant the State, its agents and /or contractors, without cost, the right to enter Town rights -of-
way, as required, to conduct any and all construction and preconstruction related activities, including
without limitation, temporary construction easements or temporary rights -of -entry to accomplish among
other things, soil and foundation investigations.
k. Upon completion of the construction of the Project, provide an electronic version of the as-
built plans to Arizona Department of Transportation Statewide Project Management Section.
I. Upon notification of Project completion, from the State, agree to accept, maintain and
assume full responsibility of the Project in writing.
III. MISCELLANEOUS PROVISIONS
1. The terms, conditions and provisions of this Agreement shall remain in full force and effect until
completion of said Project, including related deposits and /or reimbursements. Any provisions for
maintenance of the Project 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 (30) days 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. The Town will be responsible for all costs up
to the time of termination. If the federal funding related to this Project is terminated or reduced by the
federal government, or if Congress rescinds, fails to renew, or otherwise reduces apportionments or
obligation authority, the State shall in no way be obligated for funding or liable for any past, current or
future expenses under this Agreement.
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
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
Page 5 IGA/JPA 13- 0001687 -I
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. The cost of construction and construction engineering work under this Agreement is to be
covered by the federal 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 federal
funds, or that certain costs may not be accepted by the federal government as eligible for federal funds.
Therefore, the Town agrees to furnish and provide the difference between actual costs of the Project and
the federal funds received.
4. The cost of the Project under this Agreement includes indirect costs approved by the Federal
Highway Administration (FHWA), if applicable.
5. The Parties 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.
6. This Agreement shall become effective upon signing and dating of the Determination Letter by
the State's Attorney General.
7. This Agreement may be cancelled in accordance with Arizona Revised Statutes § 38 -511.
8. To the extent applicable under law, the provisions set forth in Arizona Revised Statutes §§ 35 -214
and 35 -215 shall apply to this Agreement.
9. 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 ".
10. Non - Availability of Funds: Every obligation of the State under this Agreement is conditioned upon
the availability of funds appropriated or allocated for the fulfillment of such obligations. If funds are not
allocated and available for the continuance of this Agreement, this Agreement may be terminated by the
State at the end of the period for which the funds are available. No liability shall accrue to the State in the
event this provision is exercised, and the State shall not be obligated or liable for any future payments as
a result of termination under this paragraph.
11. 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.
12. The Parties shall comply with the applicable requirements of Arizona Revised Statute § 41 -4401.
13. The Parties hereto shall comply with all applicable laws, rules, regulations and ordinances, as
may be amended.
14. 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:
Page 6
IGA/JPA 13- 0001687 -1
Arizona Department of Transportation Town of Fountain Hills
Joint Project Administration 16705 E. Avenue of the Fountains
205S.17 1h Avenue, Mail Drop 637E Fountain Hills, Arizona 85268
Phoenix, Arizona 85007 Phone No. (408) 816 -5100
(602) 712 -7124 Fax No. (408) 837 -3145
(602) 712 -3132 Fax
For Town Financial Matters:
Julie A. Ghetti
Jghetti @fh.az.gov
15. 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.
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above written.
TOWN OF FOUNTAIN HILLS
By
I DA M. KRIVANAGH
Mayor
ATTEST:
L���� . /,/ .�
August 1" 2013
STATE OF ARIZONA
Department of Transportation
By t �--
ALL HAMMIT, P.E.
Senior Deputy State Engineer, Development
IGA /JPA 13- 0001687 -1
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 5 ' day of 56miimsop 2013.
s 040 EV csHA��CC
i � C
9RIZONP
SUSAN E. DAVIS
ASSISTANT ATTORNEY GENERAL
THOMAS C. HORNE OFFICE OF THE ATTORNEY GENERAL DIRECT LINE: 602 -542 -8855
ATTORNEY GENERAL TRANSPORTATION SECTION E -MAIL: SUSAN.DAVISra7AZAG.GOV
INTERGOVERNMENTAL AGREEMENT
DETERMINATION
A.G. Contract No. P0012013002385 (IGA /JPA 13- 0001687 -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: September 20, 2013
THOMAS C. HORNE
Attorney General
SUSAN E. DAVIS
Assistant Attorney General
Transportation Section
SED:rl:# 3549146
Attachment
1275 West Washington, Phoenix, Hrizona 8500 7 -2 92 6 • Phone 602 -542 -1680 . Fax 602 - 542 -3646
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