2021-4-9 FINAL IGA FOR HIDDEN VALLEY BASIN TT0683.PDF

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY
AND THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
For
Hidden Valley Basins and Storm Drain Project
(District C-69-21-0XX-X-00, IGA FCD2020A021)
(County C-64-21-XXX-X -00, MCDOT Project TT0683)
This Intergovernmental Agreement (Agreement) is entered into by and between the
Flood Control District of Maricopa County, a political subdivision of the State of Arizona
(District), and Maricopa County, a political subdivision of the State of Arizona (County).
The District and the County are collectively referred to as the Parties or individually as a
Party.
STATUTORY AUTHORIZATION
1. The District is authorized, pursuant to Arizona Revised Statutes (A.R.S.) §§ 48-3603
et. seq., to construct, operate and maintain flood control structures and facilities
and to enter into this Agreement.
2. The County is authorized, pursuant to A.R.S. § 11-251 and §§ 28-6701 et. seq., to
lay out, maintain, control and manage public roads within the County.
3. 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.
BACKGROUND
4. The District previously conducted the Laveen Area Drainage Master Plan/Update
(ADMP/U) to develop and evaluate alternative solutions to mitigate flooding in the
Laveen Area. The study initially looked at a 37-square mile area/watershed,
generally bounded by the Seventh Avenue alignment to the east, the Gila River
Indian Community to the west, South Mountain to the south and the Salt River to
the north.
5. The District’s recommended drainage solution project, known as the District’s
Hidden Valley Basins and Storm Drain Project (Project), will construct storm
drains and two basins for both the east wash (Highline Basin) and the northeast
wash (Carver Basin). The basins will be built with a storage volume sufficient to
April 9, 2021 Page 1
FCD2020A021

hold the 10-year return frequency. Both basins will drain into a storm drain system.
The storm drains from each basin will join at 44th Avenue and Estrella Drive, and
the combined flow will be conveyed in a storm drain pipe along Estrella Drive to
outfall at the SR-202L Freeway channel, as depicted in the attached Exhibit “A.”
As the project design is refined, these particular features may be modified or
changed. The estimated cost of the Project is $8,260,000.
6. The District’s proposed Project includes improvements that are also anticipated to
benefit 43rd Avenue drainage and mitigate flooding on this County roadway. The
County’s Department of Transportation (MCDOT) will connect new storm drain
inlets along 43rd Avenue.
7. Additional recommended drainage solutions proposed by the District may also
affect County right-of-way in the area. Given the mutual benefit of portions of the
Project, the County and the District desire to enter into this Agreement to cooperate
on mutually beneficial aspects of the Project.
8. The County's contribution for the joint effort with the District under this Agreement
is coming from County Transportation Department’s TIP Project TT0683, Hidden
Valley Basin and Storm Drain.
9. The Board of Directors of the District approved Resolution FCD2018R006 (C-69-
18-024-6-00), authorizing the District to negotiate and prepare intergovernmental
agreements with potential project partner agencies for Project cost-share of
design, right-of-way acquisitions, utility relocations, construction, construction
management, and operation and maintenance.
PURPOSE OF THE AGREEMENT
10. This Agreement identifies and defines the responsibilities of the District and the
County for Project activities, including, but not limited to, cost sharing, design, right-
of-way acquisitions, utility relocations, permitting, construction, construction
management, and operation and maintenance.
TERMS OF AGREEMENT
11. The County shall:
11.1 Provide, at the County's expense, design review comments to the District
on a timely basis at relevant milestone stages.
11.2 Pay $220,000 towards the cost of the Project, within 30 days of receipt of
an invoice from the District after construction completion of the Project, for
the flood mitigation protection provided by the Project.
April 9, 2021 Page 2
FCD2020A021

11.3 Participate in Project public involvement activities directly related to the
improvements within County right-of-way.
11.4 Pay for, and not seek reimbursement for, its own personnel and internal
administrative costs associated with this PROJECT, including costs
associated with the issue of Project permits, unless specifically identified
otherwise in this Agreement.
11.5 Participate and coordinate with the District to conduct final inspection(s) of
the Project and/or any other Project-related work adjacent to and /or located
on County right-of-way.
11.6 Obtain District review and comments on the design and/or construction of
any future changes, or modifications to the Project, and resolve and/or
incorporate District’s comments into any future Project modifications made
by the County.
11.7 Schedule, and invite the District to participate in, an annual inspection of the
storm drain system. Any deficiencies relating to flood control, for which the
County is responsible, shall be corrected by the County within 30 calendar
days. If the County has not taken corrective action within this time, the
District reserves the right to perform the corrective action, and the County
shall reimburse the District for the total costs incurred by the District within
30 calendar days of receipt of an invoice from the District.
11.8 Upon substantial completion of the Project and acceptance by MCDOT,
assume responsibility, at County's sole cost and expense, for all operations
and maintenance of the Project’s storm drain system within MCDOT's right-
of-way limits, which includes, but is not limited to, vegetation and sediment
removal; removal of trash and debris; other operating costs for the storm
drain; and vandalism repair and replacement, as needed, for the flood
control structures.
12. The District shall:
12.1 Fund 100% of the Project costs minus the County’s contribution of
$220,000.
12.2 Serve as the lead agency on design, construction and construction
management of the Project.
12.2.1 Provide Project design plans to the County for review and
comment at milestone stages as needed.
April 9, 2021 Page 3
FCD2020A021

12.2.2 Upon construction completion of the Project, invoice the
County for its contribution of $220,000 for its share of the
Project cost.
12.2.3 Participate in the final construction inspection(s) as needed
within County right-of-way.
12.3 Serve as the lead agency for utility-relocations required for the Project.
12.4 Serve as the lead agency for Project right-of-way acquisition and public
involvement activities. Provide the County with advance notice of public
meetings, and any Project street closures affecting County right-of-way, as
well as coordinate any joint public meetings with MCDOT’s Communication
Branch, as needed, regarding mutual Project concerns.
12.5 Submit to MCDOT Permit Branch the portion of the Project plans that
include improvements within MCDOT right-of-way, and a reasonable
distance beyond so MCDOT's reviewers can fully ascertain the nature of
the design applicable to MCDOT.
12.6 Reserve the right to review and comment on the design and construction of
any future modifications by the County to the Project that may affect the
hydraulic function of the Project.
12.7 Participate with MCDOT’s Roadway Maintenance Division personnel in an
annual inspection of the storm drain system and make recommendations,
as needed.
GENERAL TERMS AND CONDITIONS
13. The District funding for the Project is from secondary flood control tax levy revenue
and is contingent upon funding availability within the District’s Capital Improvement
Program.
14. MCDOT has received funding for its facilities and operations from the Arizona
Highway User Revenue Fund (HURF), which is subject to Article 9, Section 14
of the Arizona Constitution, which limits the purposes for which HURF monies
may be expended on highway and street related purposes.
15. The Parties agree to equally share the cost of any Project compliance and cost
audit to be initiated within 60 days of Project completion, if requested by either
Party. An independent auditing firm agreed to by the Parties 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 Parties.
April 9, 2021 Page 4
FCD2020A021

16. 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 loss, expense, damage
or claim of any nature whatsoever which is caused by any activity, condition or
event arising out of the negligent performance or nonperformance by the
indemnifying Party of any of the provisions of this Agreement. By entering into this
Agreement, each Party indemnifies the other against all liability, losses and
damages of any nature for or on account of any injuries or death of persons or
damages to or destruction of property arising out of or in any way connected with
the performance or nonperformance of this Agreement, except such injury or
damage as shall have been caused or contributed to by the negligence of that
other Party. The damages which are the subject of this indemnity shall include but
not be limited to the damages incurred by any Party, its departments, agencies,
officers, employees, elected officials or agents. 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.
17. This Agreement shall become effective as of the date it is approved by the
governing bodies of the Parties and remain in full force and effect until all
stipulations previously indicated have been satisfied, except that it may be
amended upon written Agreement by all Parties.
18. This Agreement is subject to the provisions of A.R.S. § 38-511.
19. The Parties warrant that they are in compliance with A.R.S. § 41-4401 and further
acknowledge that:
19.1 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.
19.2 Any breach of the warranty shall be deemed a material breach of the
Agreement for which the breaching party may be liable for penalties
including termination of the Agreement.
19.3 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.
April 9, 2021 Page 5
FCD2020A021

19.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
20. Any contractor or subcontractor who engages in for-profit activity and has 10 or
more employees, and 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.
21. Each Party to this Agreement warrants that neither it nor any contractor or vendor
under contract with the Party to provide goods or services toward the
accomplishment of the objectives of this Agreement is suspended or debarred by
any federal agency which has provided funding that will be used in the Project
described in this Agreement.
22. Each of the following shall constitute a material breach of this Agreement and an
event of default (“Default”) hereunder: A Party’s failure to observe or perform any
of the material covenants, conditions or provisions of this Agreement to be
observed or performed by that Party (“Defaulting Party”), where such failure shall
continue for a period of thirty (30 days after the Defaulting Party receives written
notice of such failure from the non-defaulting Party 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, but the total aggregate cure period shall not exceed ninety (90)
days unless the Parties agree in writing that additional time is reasonably
necessary under such circumstances to cure such default. In the event a
Defaulting Party fails to perform any of its material obligations under this
Agreement and is in Default pursuant to this Section, the non-defaulting Party, at
its option, may terminate this Agreement. Further, upon the occurrence of any
Default and at any time thereafter, the non-defaulting Party may, but shall not be
required to, exercise any remedies now or hereafter available to it at law or in
equity.
23. All notices required under this agreement to be given in writing shall be sent to:
Flood Control District Maricopa County
of Maricopa County Department of Transportation
Attn: Director Attn: Director
2801 West Durango Street 2901 West Durango Street
Phoenix, AZ 85009-6399 Phoenix, AZ 85009-6399
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 mail or U.S. Postal Service Express Mail, with postage prepaid,
and shall be deemed sufficiently given if served in a manner specified in this
April 9, 2021 Page 6
FCD2020A021

paragraph. Either Party may by written notice to the other specify a different
address for notice. Any notice sent by 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 overnight courier that guarantee next day delivery shall be deemed given 24
hours after delivery of the notice to the Postal Service or courier.
24. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
25. Any funding provided for 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 the Flood Control District of Maricopa County Board of
Directors in such fiscal year. This Agreement may be terminated by any Party at
the end of any fiscal year due to non-appropriation of funds.
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 of the
covenants, promises, agreements, conditions and understandings related to the
Project between the Parties to this Agreement, 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. This Agreement cannot be modified or changed
except by a written instrument executed by all of the Parties hereto.
28. The waiver by any Party of any right granted to it 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
April 9, 2021 Page 7
FCD2020A021

instrument executed or delivered pursuant to this Agreement shall survive the
expiration or earlier termination of this Agreement for a period of one year.
31. Nothing contained in this Agreement shall create any partnership, joint venture or
other agreement between the Parties hereto. 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, and no such 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. If
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, then 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 in any way 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 of which together shall constitute the same
instrument. Faxed, copied and scanned signatures are acceptable as original
signatures.
35. The Parties agree to 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.
36. The Parties hereby agree that the venue for any claim arising out of or in any way
related to this Agreement shall be Maricopa County, Arizona.
37. This Agreement shall be governed by the laws of the State of Arizona.
38. The District and County have chosen attorneys employed by the Civil Services
Division of the Maricopa County Attorney’s Office (“Civil Services Division”) to act
as their attorney for the purpose of reviewing this Agreement. In so doing, by their
signature below, each party acknowledges that it is aware that the Civil Services
Division will represent these two parties to this Agreement, and each party
expressly waives any conflict created thereby.
End of Agreement - Signature Pages Follow
April 9, 2021 Page 8
FCD2020A021

IN WITNESS WHEREOF, the Parties have executed this Agreement.
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
Recommended by:
Michael A. Fulton Date
Director
Approved and Accepted by:
_________________________________
Jack Sellers, Chairman Date
Board of Directors
Attest by:
_________________________________
Clerk of the Board Date
APPROVAL OF GENERAL COUNSEL
The foregoing Agreement FCD2020A021 has been reviewed pursuant to A.R.S. § 48-
3603, 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
April 9, 2021 Page 9
FCD2020A021

IN WITNESS WHEREOF, the Parties have executed this Agreement.
MARICOPA COUNTY
Recommended by:
Jennifer Toth, P.E. Date
Transportation Director
Approved and Accepted by:
_________________________________
Jack Sellers, 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
April 9, 2021 Page 10
FCD2020A021

EXHIBIT “A”
Project Site Map
April 9, 2021 Page 11
FCD2020A021