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Return to: Flood Control District of Maricopa County 2801 West Durango Street Phoenix, AZ 85009-6399 INTERGOVERNMENTAL AGREEMENT between the CITY OF SCOTTSDALE and the FLOOD CONTROL DISTRICT OF MARICOPA COUNTY for the FINAL DESIGN, RIGHTS-OF-WAY ACQUISITION AND UTILITY RELOCATIONS of PHASE II-A OF THE GRANITE REEF WATERSHED DRAINAGE IMPROVEMENTS IGA FCD 2020A029 City of Scottsdale Agreement No. 2021-081-COS Agenda Item _____________________ This Intergovernmental Agreement (Agreement) is entered into by and between the City of Scottsdale, a municipal corporation, acting by and through its City Council, hereinafter called the CITY, and the Flood Control District of Maricopa County, a political subdivision of the State of Arizona, acting by and through its Board of Directors, hereinafter called the DISTRICT. The DISTRICT and the CITY may hereinafter individually be called a PROJECT PARTNER, or collectively called the PROJECT PARTNERS. This Agreement shall become effective as of the date it has been executed by all PROJECT PARTNERS. IGA FCD 2020A029 PCN 265.01.30 PAGE 1 OF 12 CONTRACT NO. 2021-081-COS STATUTORY AUTHORIZATION 1. The DISTRICT is empowered by Arizona Revised Statutes (A.R.S.) Section 48-3603, as revised, to enter into this Agreement and has authorized the undersigned to execute this Agreement on behalf of the DISTRICT. 2. The CITY is empowered by A.R.S. Section 11-952 and Article I, Section 3-1, of the Scottsdale City Charter, as amended, to enter into this Agreement and has authorized the undersigned to execute this Agreement on behalf of the CITY. BACKGROUND 3. The Granite Reef watershed is bounded by the Arizona Canal on the north, the Loop 101 freeway on the east, varies on the west from approximately Granite Reef Road on the north to approximately Hayden Road on the south, and outfalls to the Salt River on the south end of the watershed. 4. The Granite Reef Wash Drainage Master Plan was completed by the DISTRICT in 2002. Since completion of the plan, drainage studies and conceptual solutions, directed by the City of Scottsdale, have been developed with the goal of mitigating the effects of a 100-year storm event. The proposed solutions include a series of improvements to existing storm drains, to capture and convey storm water westward to Indian Bend Wash, as well as a development of a regional drainage solution to convey storm water to the Salt River. 5. On July 7, 2010, the Board of Directors of the DISTRICT adopted Resolution FCD 2010R002 (C-69-10-078-6-00), authorizing the DISTRICT to negotiate and prepare Intergovernmental Agreements for the cost-sharing, design, rights-of-way acquisition, construction, construction management, and future operation and maintenance of the Granite Reef Wash Drainage Improvements. 6. The proposed improvements are planned to be implemented in two Phases. Phase I includes local storm drain capacity improvements for the portion of the watershed that is north of Indian School Road and Phase II is the area south of Indian School Road. Improvements in the Phase II area also include local storm drain capacity improvements and the regional large-diameter storm drain and outfall to the Salt River. 7. On March 17, 2015, the PROJECT PARTNERS executed IGA FCD 2014A015 (C-69-15-033- IGA FCD 2020A029 PCN 265.01.30 PAGE 2 OF 12 CONTRACT NO. 2021-081-COS 3-00) for the design of Phase I improvements and the acquisition of rights-of-way for detention basins within the Phase II area. 8. In June 2017, the PROJECT PARTNERS executed IGA FCD 2017A017 (C-69-17-036-3-00) for the Construction, Utility Relocations, rights-of-way Acquisition, Construction Management, and Operation and Maintenance for improvements in the Phase I area. Most of the Phase I improvements are now complete or under construction and the property for the Phase II basins has been acquired. 9. This Agreement is for Phase II-A of the Granite Reef Watershed Drainage Improvements (herein known as the PROJECT) which will consist of a regional large-diameter storm drain (RSD) that outfalls to the Salt River. The RSD will be constructed in conjunction with the Pima Road Improvements Project and will extend from approximately Thomas Road to the outfall at the Salt River. The RSD will be designed to provide a 100-year level of flood protection. The preliminary PROJECT elements are shown on Exhibit A, attached hereto and made a part hereof. PURPOSE OF THE AGREEMENT 10. This Agreement identifies and defines the responsibilities of the DISTRICT and the CITY, for PROJECT activities related to design, rights-of-way acquisition, and utility relocations. TERMS OF AGREEMENT 11. The BACKGROUND and PURPOSE OF THE AGREEMENT provisions are hereby incorporated into the terms of this Agreement. 12. The PROJECT, as referenced herein, is described in section 9 of this Agreement. 13. The PROJECT COST, as referenced herein, solely encompasses the following costs directly associated with the PROJECT activities that are incurred after the effective date of this Agreement, except for previously incurred design costs: 13.1 Costs of final design. 13.2 Costs associated with acquiring land and land rights (rights-of-way) required for the PROJECT. IGA FCD 2020A029 PCN 265.01.30 PAGE 3 OF 12 CONTRACT NO. 2021-081-COS 13.3 Costs of relocating conflicting utilities in place by prior rights. Conflicting utilities in place without prior rights will be relocated at their owners' expense and are not components of the PROJECT COST. 13.4 Costs of obtaining any applicable United States Army Corps of Engineers (USACE) Section 404 Permits for the PROJECT, and costs associated with the mitigation efforts required by this permit process. 14. The following are specifically excluded from the calculation of the PROJECT COST: 14.1 Any costs associated with additional rights-of-way or non-flood control features added to the construction at the CITY’s request. Such costs shall be funded solely by the CITY. 14.2 The personnel and internal administrative costs associated with this PROJECT incurred by each PROJECT PARTNER, including costs associated with the issuance of PROJECT permits, unless specifically identified otherwise in this Agreement. 15. The PROJECT COST associated with this Agreement is estimated to be $4,100,000. 15.1 The PROJECT COST is estimated based on the best information available at the time of this Agreement, and is subject to change without amendment to this Agreement. In the event the PROJECT COST exceed the estimated amount, each PROJECT PARTNER shall be notified of such increase and, unless objection is provided, the PROJECT COST will be deemed amended with such additional costs being shared according to the same formula as is applicable to the PROJECT COST. 16. DISTRICT funding for this PROJECT shall be from secondary flood control tax levy revenue and is contingent upon funding availability within the DISTRICT’s Capital Improvement Program. 17. CITY funding for this PROJECT is available as identified in the CITY’s Capital Improvement Plan. 18. The CITY shall: 18.1 Fund 50% of the PROJECT COST, making the CITY’s estimated share $2,050,000. 18.2 Serve as lead agency for the design of the PROJECT. IGA FCD 2020A029 PCN 265.01.30 PAGE 4 OF 12 CONTRACT NO. 2021-081-COS 18.2.1 Plan and design the PROJECT to meet the recurrence interval of the 100- year flood as determined by generally applied technical data and methodology in use at the time of PROJECT design, and this level of protection is specifically approved by the Board of Directors of the Flood Control District of Maricopa County. 18.2.2 Provide to the DISTRICT interim PROJECT submittals and allow 3 weeks for review and comment, as well as incorporate the DISTRICT comments into the PROJECT as appropriate. 18.3 Serve as the lead agency for obtaining USACE Section 404 Permit, and for completing mitigation efforts required by this permit process. 18.4 Serve as the lead agency for PROJECT rights-of-way (fee or easement) acquisition, 18.4.1 Obtain permanent and temporary rights-of-way required for the PROJECT within the City of Scottsdale. 18.4.2 Take the lead in coordinating with the SRP-MIC for the negotiation and dedication of rights-of-way for the PROJECT within the boundary of the Salt River Pima-Maricopa Indian Community. 18.4.3 Provide use of all CITY owned and controlled rights-of-way necessary for the PROJECT, and not specifically purchased for this PROJECT, at no cost to the PROJECT. 18.4.4 If, in the future, it is mutually agreed between the PROJECT PARTNERS that, property acquired for the PROJECT is no longer needed for flood control purposes and therefore available for sale, the CITY may sell the property under the stipulation that the DISTRICT shall be paid its cost share percentage of the original acquisition cost, along with its pro-rata share of any appreciation in land value from the original acquisition price of the property for the PROJECT to the final disposition price at the time that the CITY disposes of the property. 18.5 Serve as the lead agency for utility relocations required for the PROJECT. 18.5.1 Cause to be relocated conflicting utilities within the CITY’s rights-of-way. IGA FCD 2020A029 PCN 265.01.30 PAGE 5 OF 12 CONTRACT NO. 2021-081-COS 18.5.2 Cause to be relocated at no cost to the PROJECT all private utilities that are in place by permit and/or without prior rights that are in conflict with the PROJECT. 18.5.3 As part of the PROJECT COST, cause to be relocated all private utilities that are in place by permit and with prior rights that are in conflict with the PROJECT. 18.6 Serve as the lead agency for PROJECT public involvement activities. 18.7 Be responsible for assuring the safety and appropriateness of any non-flood control uses of the PROJECT right-of-way or improvements prior to offering to make or making the PROJECT right-of-way or improvements available for such uses, within Scottsdale’s jurisdiction. 18.8 Obtain DISTRICT review and comments on the design and/or construction of any future modifications to the PROJECT that may affect the hydraulic function of the PROJECT, and resolve and/or incorporate the DISTRICT’s comments into these future PROJECT modifications. 18.9 For PROJECT COSTS for design, the City will invoice the DISTRICT for 50% of its cost share at the time of award of the design contract, and the other 50% at the completion of the contract including any change orders. 18.10Prior to DISTRICT’s final cost share payment for the design contract(s), provide written notification to the DISTRICT that all contract obligations have been met, all project contracts closed, and all certificates of performance have been received by the CITY. 19. The DISTRICT shall: 19.1 Fund 50% of the PROJECT COST, making the DISTRICT’s estimated share $2,050,000. 19.2 Subject to the availability of funding, within 30 calendar days of receipt, pay all invoices issued to the DISTRICT by the CITY in accordance with the terms of this Agreement. 19.3 Participate in PROJECT public involvement activities. 19.4 Provide review comments to the CITY on periodic PROJECT submittals within 3 weeks of receipt. IGA FCD 2020A029 PCN 265.01.30 PAGE 6 OF 12 CONTRACT NO. 2021-081-COS 20. Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall: 20.1 Comply with A.R.S. Sections 41-4401 and 23-214(A). 20.1.1 Each PROJECT PARTNER retains the legal right to inspect the records of the CITY’s and any contractors’ or subcontractors’ employees performing work under this Agreement to verify compliance with A.R.S. Sections 41-4401 and 23- 214(A). 20.1.2 Failure by either PROJECT PARTNER to this Agreement to comply with A.R.S. Sections 41-4401 and 23-214(A) shall be deemed a breach of this Agreement and is subject to penalties up to and including termination of the Agreement. 20.2 Require that any contractor selected for the PROJECT: 20.2.1 Warrant its compliance with all federal immigration laws and regulations that relate to its employees and their compliance with A.R.S. section 23-214(A); 20.2.2 Agree that a breach of the warranty under paragraph 20.2.1 shall be deemed a material breach of contract and is subject to penalties up to and including termination of the contract; 20.2.3 Agree that the PROJECT PARTNERS retain the legal right to inspect the papers of the contractor or subcontractor employee(s) who work(s) on this Agreement to ensure that contractor or subcontractor is complying with the warranty under paragraph 20.2.1. 20.3 Have the right, following mutual written agreement of all PROJECT PARTNERS, to delegate its responsibilities under this Agreement to another party. Any delegation, however, shall not relieve the delegating PROJECT PARTNER of its original responsibilities as defined herein. 20.4 Agree to use their best efforts and enter into good faith negotiations to resolve any disputed matters. However, this shall not limit the rights of the PROJECT PARTNERS to seek any remedies provided by law. 20.5 Take reasonable and necessary actions within its authority to ensure that only storm water is discharged into the PROJECT, and that such discharges into the PROJECT IGA FCD 2020A029 PCN 265.01.30 PAGE 7 OF 12 CONTRACT NO. 2021-081-COS comply at the point of discharge with any applicable requirements of the U.S. Environmental Protection Agency Clean Water Act, Arizona Pollutant Discharge Elimination System or any other applicable discharge requirements, including any permit requirements. 20.6 Agree to equally share the cost of PROJECT compliance and cost audit to be initiated within 60 days of PROJECT completion, if requested by either PROJECT PARTNER. An independent auditing firm agreed to by the PROJECT PARTNERS will perform the audit. Any payments or reimbursements necessary to bring the PROJECT into compliance with the audit findings shall be made within 45 days of acceptance by the PROJECT PARTNERS. 21. The PROJECT may be phased due to funding or other coordination issues. Responsibilities of the DISTRICT and the CITY shall be phased accordingly, including, but not limited to, invoicing, reimbursements, and/or transfer of land rights. 22. If mutually acceptable to the PROJECT PARTNERS, PROJECT invoicing may be conducted periodically based on actual PROJECT costs incurred, no more frequently than quarterly, and no less frequently than annually, in lieu of invoicing timelines otherwise established in this Agreement. 23. Each PROJECT PARTNER shall, as “Indemnitor,” to the extent permissible by law, indemnify, defend and hold harmless the other PROJECT PARTNER (“Indemnitee”) from and against any and all loss or expense incurred as a result of any claim or suit of any nature whatsoever, which arises out of any act or omission of Indemnitor pursuant to this IGA, including but not limited to, reasonable attorneys’ fees, court costs, and other expenses relating to the defense against claims or litigation, incurred by the Indemnitee. Notwithstanding the above, Indemnitee shall be liable for its own negligence or wrongful acts as provided by law. In no event shall the Indemnitor owe or be obligated to pay any amounts which the Indemnitee has not actually paid or has no actual obligation to pay. In the event any agreement to pay to resolve issues of liability is not enforceable, or any agreement or settlement results in an actual obligation lower than the full amount of liability, the Indemnitor’s obligation to pay shall be limited to the amount Indemnitee has paid or would be obligated to pay in the absence of any agreement to indemnify. Should the CITY offer to make or make the PROJECT available for any non-flood control uses, the CITY shall, to the extent permissible by law, indemnify, defend and save harmless the DISTRICT, including agents, officers, directors and employees thereof, IGA FCD 2020A029 PCN 265.01.30 PAGE 8 OF 12 CONTRACT NO. 2021-081-COS from any and all loss or expense incurred as a result of any claim or suit without limitation. Such indemnification obligation is intended to be a specific indemnity obligation rather than the general indemnity obligations set forth in this paragraph regarding all other types of claims or suits and shall include the obligation to provide reasonable attorneys’ fees, court costs, and other expenses relating to the defense of such claims or litigation. 24. 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: Flood Control District of Maricopa County Director 2801 West Durango Street Phoenix, AZ 85009-6399 City of Scottsdale City Engineer 7447 E. Indian School Road, Ste. 205 Scottsdale, Arizona 85251 25. This Agreement shall expire either (a) 10 years from the effective date, or (b) upon completion of the PROJECT and after all funding obligations and reimbursements have been satisfied in accordance with this Agreement, whichever is the first to occur. However, by mutual written agreement, this Agreement may be amended or terminated. The indemnification provisions of this Agreement shall survive the expiration of this Agreement. 26. This Agreement is subject to cancellation by any party pursuant to the provisions of A.R.S. Section 38-511. 27. Attached to this Agreement or contained herein are the written determinations by the appropriate attorneys for the parties to this Agreement, that these agencies are authorized under the laws of the State of Arizona to enter into this Agreement and that it is in proper form. 28. If legislation is enacted after the effective date of this Agreement that changes the relationship or structure of one or more parties to this Agreement, the parties agree that this Agreement shall be renegotiated at the written request of any party. IGA FCD 2020A029 PCN 265.01.30 PAGE 9 OF 12 CONTRACT NO. 2021-081-COS SIGNATURE PAGES FOLLOW IGA FCD 2020A029 PCN 265.01.30 PAGE 10 OF 12 CONTRACT NO. 2021-081-COS FLOOD CONTROL DISTRICT OF MARICOPA COUNTY A Political Subdivision of the State of Arizona Recommended by: Michel A. Fulton, Director Date Approved and Accepted: By: Chairman, Board of Directors Date Attest: By: Clerk of the Board Date The foregoing Intergovernmental Agreement IGA FCD 2020A029 has been reviewed pursuant to Arizona Revised Statutes Section 11-952, as amended, by the undersigned General Counsel, who has determined that it is in proper form and within the powers and authority granted to the Flood Control District of Maricopa County under the laws of the State of Arizona. Flood Control District General Counsel Date IGA FCD 2020A029 PCN 265.01.30 PAGE 11 OF 12 CONTRACT NO. 2021-081-COS CITY OF SCOTTSDALE A Municipal Corporation By: David D. Ortega, Mayor Date Attest: By: __ Ben Lane, City Clerk Date The foregoing Intergovernmental Agreement IGA FCD 2020A029, Scottsdale No. 2021-081-COS has been reviewed pursuant to Arizona Revised Statutes Section 11-952, as amended, by the undersigned attorney who has determined that it is in proper form and within the power and authority granted to the City of Scottsdale under the laws of the State of Arizona. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Sherry R. Scott, City Attorney Date By: Eric C. Anderson, Sr. Asst. City Atty. IGA FCD 2020A029 PCN 265.01.30 PAGE 12 OF 12 CONTRACT NO. 2021-081-COS IGA FCD 2020A029 CONTRACT NO. 2021081-COS EXHIBIT A Granite Reef Wash Phase II-A Drainage Improvements