IGA FCD-MCDOT SCW AREA CHANNEL CROSSINGS.DOCX

INTERGOVERNMENTAL AGREEMENT
BETWEEN MARICOPA COUNTY
AND THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
FOR
SUN CITY WEST AREA CHANNEL CROSSINGS PROJECT
(District C-69-21-_____-X-00, IGA FCD 2021A005
County C-64-21-_____-X -00)
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 A.R.S. Section 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. Section 11-251 and Sections 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. Section 11-951 et. seq., to
enter into Intergovernmental Agreements for the provision of services or for joint
or cooperative action.
BACKGROUND
4. The Maricopa County Board of Supervisors and the Flood Control District of
Maricopa County hereby rescind the Intergovernmental Agreement (C-64-20-167-
M-00 and C-69-20-026-3-00/FCD 2019A011) approved on May 6, 2020.
5. The County’s Transportation Department evaluated roadway crossings of
drainage channels within the Sun City West community and will develop
improvements to address traffic clear zone protection at various locations.
Proposed work includes replacing vehicular guardrails with extended safety rails,
and extending existing drainage culverts where improvements may be needed.
Highway User Revenue Funds (HURF) for the County's project, and the joint effort
with the District under this Agreement, are coming from the County Transportation
Department’s TIP Project TT0615, Sun City West Canal Crossings.
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6. The District has various drainage channel sites in the Sun City West community
with distressed channel linings. Some of these locations need new access ramps
to the channel bottoms, to better facilitate maintenance and inspection activities by
the District and the County. The new ramps are expected to include new access
gates, which will also provide increased access control.
7. Scoping activities by the Parties has resulted in mutually beneficial opportunities
for channel-area improvements. Given this mutual benefit, the County and the
District desire to enter into this Agreement to jointly work on improvements at 18
locations in Sun City West, as listed in the attached Exhibit A, which constitute
the Project. The estimated target date for completion of the Project is FY 2023.
8. The Board of Directors of the District approved Resolution FCD2019R005 for
Repairs and Improvements to the Channels of Sun City and Sun City West on
December 11, 2019. This Resolution includes the authorization to negotiate and
prepare intergovernmental agreements with potential project partner agencies.
9. Project construction costs for all project activities presented in Exhibit “A” are
currently estimated at $2,000,000:
9.1. Project Construction Costs currently estimated at $2,000,00 will be shared
equally between parties.
9.2. Related Project Costs including design, environmental and construction
management will be paid by the County.
9.3 The District and the County will share construction cost equally with
construction planned for fiscal year 2023. To advance construction to fiscal
year 2023, the District will pay all construction costs currently estimated at
$2,000,000 and the County will reimburse the District the County cost share
currently estimated at $1,000,000 no later than the end of Fiscal Year 2026.
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,
permitting and construction.
TERMS OF AGREEMENT
11. The County shall:
11.1 Develop the primary design plans and specs, conduct the environmental
review and manage the construction.
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11.2 Design the safety rail extensions and access gates for all locations on
Exhibit A and incorporate the District's plans for the access ramps and
related fencing into the County’s clear zone safety / culvert extension design
plans.
11.3 The District will have a review and comment role in the Design of the
County's improvements for all locations under this Agreement.
11.4 Upon completion of the sealed plans, the County shall invoice the District
for the estimated Project construction cost currently estimated at
$2,000,000.
11.5 Construct the access ramps, access gates and the related safety rail
extensions.
11.6 Upon completion of construction, the County will provide the District the final
construction cost share for each partner.
11.7 Issue no-cost permits to the District for any additional construction and
maintenance activities in the Sun City West community, as needed, for
location responsibilities under this Agreement.
11.8 Participate in the final inspection of the Project with the District and provide
final acceptance of the Project upon its completion.
11.9 Not later than the end of Fiscal Year 2026, the County shall reimburse the
District for its share of the Project construction costs.
11.10 Keep the District informed of the County’s planned construction start date
and any change in the Fiscal Year.
12. The District shall:
12.1 Design access ramps and related fencing and forward the design plans to
be incorporated into the County’s clear zone safety / culvert extension
design plans.
12.2 Review and comment in the Design of the County’s improvements for all
locations under this Agreement.
12.3 Upon receipt of an invoice for the estimated Project construction
cost currently estimated at $2,000,000, pay the invoice within 30 days of
receipt.
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12.4 Issue no-cost permits to the County for construction and maintenance
activities in the Sun City West community, as needed, for location
responsibilities under this Agreement.
12.5 Participate in the final inspection of the Project with the County and provide
final acceptance of the Project upon its completion.
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. The Parties agree to equally share the cost of a Project compliance and cost audit
to be initiated within sixty (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 forty-five (45) days of acceptance by
the Parties.
15. To the extent permitted by law, each Party will indemnify, defend and save the
other Parties harmless, including any of the Parties’ 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.
16. This Agreement shall become effective as of the date it is executed by the
Maricopa County Board of Supervisors and the Flood Control District of Maricopa
County Board of Directors, 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.
17. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
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18. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and
further acknowledge that:
18.1 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. Section 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.
18.2 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.
18.3 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.
18.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
19. 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.
20. 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.
21. 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)
February 17, 2021 Page 5

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.
22. 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 or registered 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 paragraph. Either Party may by written notice to the other specify
a different address for notice. Any notice sent by registered or 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.
23. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
24. 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.
25. 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.
26. This Agreement, and all Exhibits attached to this Agreement, set forth all of the
covenants, promises, agreements, conditions and understandings related to the
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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.
27. 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.
28. 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.
29. Except as otherwise provided in this Agreement, all covenants, agreements,
representations and warranties set forth in this Agreement or in any certificate or
instrument executed or delivered pursuant to this Agreement shall survive the
expiration or earlier termination of this Agreement for a period of one (1) year.
30. 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.
31. 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.
32. 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.
33. 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
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signatures.
34. 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.
35. 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.
36. This Agreement shall be governed by the laws of the State of Arizona.
37. 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
February 17, 2021 Page 8

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:
Chairman Date
Board of Directors
Attest by:
Clerk of the Board Date
APPROVAL OF GENERAL COUNSEL
The foregoing Agreement FCD 2021A005 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
February 17, 2021 Page 9

IN WITNESS WHEREOF, the Parties have executed this Agreement.
MARICOPA COUNTY
Recommended by:
Jennifer Toth, P.E. Date
Transportation Director
Approved and Accepted by:
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 County by the Board of Supervisors
under the laws of the State of Arizona.
Deputy County Attorney Date
February 17, 2021 Page 10

EXHIBIT A
Road/Channel Crossing
FCDMC APN Partnering Scope
Location
232-05-817A Old El Mirage Road Shorten proposed concrete barrier to allow
FCDMC access. Install fencing and gate for
operations and maintenance access.
232-09-282 (north side) Beardsley Road Construct 8-feet wide access ramps to the
232-05-817A (south side) bottom of the channel as part of the new
transition aprons.
Extend MCDOT safety railing to include a
FCDMC access gate.
232-06-481A (north side) Spanish Garden Drive Construct 8-feet wide access ramps to the
232-07-454B (south side) bottom of the channel as part of the new
transition aprons.
Extend MCDOT safety railing to include a
FCDMC access gate.
232-08-681A Wildwood Drive Construct 8-feet wide access ramps to the
bottom of the channel as part of the new
transition aprons.
Extend MCDOT safety railing to include a
FCDMC access gate.
232-08-681A Conquistador Drive Extend MCDOT safety railing to include
FCDMC access gate(s).
232-08-681A Buntline Drive Extend MCDOT safety railing to include
FCDMC access gate(s).
232-15-928 (north side) Gemstone Drive Extend MCDOT safety railing to include
232-15-927 (south side) FCDMC access gate(s).
232-15-225 (north side) Aleppo Drive Extend MCDOT safety railing to include
232-15-928 (south side) FCDMC access gate(s).
232-15-056B 138th Avenue Extend MCDOT safety railing to include
FCDMC access gate(s).
232-12-426 (north side) Meeker Blvd Extend MCDOT safety railing to include
232-15-056B (south side) FCDMC access gate(s).
232-12-427 (north side) Cavalcade Drive Extend MCDOT safety railing to include
232-12-426 (south side) FCDMC access gate(s).
232-12-428 (west side) 141st Avenue Extend MCDOT safety railing to include
232-12-427 (east side) FCDMC access gate(s).
232-12-298 (west side) Trail Ridge Drive Extend MCDOT safety railing to include
232-12-428 (east side) FCDMC access gate(s).
232-12-297 (west side) 145th Avenue Extend MCDOT safety railing to include
232-12-298 (east side) FCDMC access gate(s).
232-17-909 (west side) Stardust Blvd Extend MCDOT safety railing to include
232-12-297 (east side) FCDMC access gate(s).
232-17-908 (west side) 147th Drive Extend MCDOT safety railing to include
232-17-909 (east side) FCDMC access gate(s).
232-17-907 (west side) Granite Valley Drive Extend MCDOT safety railing to include
232-17-908 (east side) FCDMC access gate(s).
232-20-817 (north side) RH Johnson Blvd Extend MCDOT safety railing to include
232-17-907 (east side) FCDMC access gate(s).
February 17, 2021 Page 11