PINNACLE PEAK & 67TH AVE DRAINAGE AGREEMENT.PDF

INTERGOVERNMENTAL AGREEMENT
between
THE CITY OF PEORIA
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
DESIGN, RIGHTS-OF-WAY ACQUISITION, AND UTILITY RELOCATIONS
of the
PINNACLE PEAK & 67TH AVENUE DRAINAGE IMPROVMENTS
IGA FCD 2020A013
Agenda Item
This Intergovernmental Agreement IGA FCD 2020A013 (Agreement) is entered into by and between the
City of Peoria, a municipal corporation, acting by and through its City Council and City Manager, 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 parties.
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(A) to enter into this Agreement and has authorized
the undersigned to execute this Agreement on behalf of the CITY.
BACKGROUND
3. The Glendale/Peoria Area Drainage Master Plan (ADMP) updated in 2002 calls for drainage and flood
control improvements including constructing a channel to intercept flows and convey them to New River
within the subject watershed.
4. In 2007, Peoria in cooperation with FCDMC completed a Design Concept Report (DCR) for 67%
Avenue between Pinnacle Peak Rd and Happy Valley Rd.
5. In 2020, Peoria in cooperation with FCDMC completed and updated a Design Concept Report (DCR)
for the roadway, water system, and drainage system improvements.
6. The Project area is bounded by Pinnacle Peak Road on the south, Happy Valley Road on the north, 67th
Avenue on the east, and New River on the west. This project will construct a regional storm drainage
system along Pinnacle Peak Road between New River and 67 Avenue and along 67 Avenue between
IGA FCD 2020A013 PCN 450.01.30 PAGE 1 OF 9
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Pinnacle Peak Road and Hatfield Road (“PROJECT”). The regional storm drain improvements are
anticipated to include storm drains, box culverts, drainage inlets/outlets, structures, channels, and
detention/retention basin improvements. The primary goal of the PROJECT is to provide 100-year flood
protection to properties in the area bounded on the north by Hatfield Road, New River to the west,
Pinnacle Peak Road to the south and 67 Avenue to the east.
7. On December 5, 2001, the Board of Directors of the DISTRICT adopted Resolution FCD 2001R012 (C-
69-02-058-6-00) authorizing the DISTRICT to cost-share in the PROJECT, and to negotiate
Intergovernmental Agreements for the design, rights-of-way acquisition, construction, construction
management, and operation and maintenance of the PROJECT.
PURPOSE OF THE AGREEMENT
8. 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
9. The PROJECT, as referenced herein, is defined by paragraph 6 of this Agreement. The PROJECT
includes the design, rights-of-way acquisition, and utility relocations of the PROJECT.
10. The PROJECT COST, as referenced herein, solely encompasses the following costs directly associated
with the PROJECT and incurred after the effective date of this Agreement, unless noted otherwise
below:
10.1 Development of pre-design and final design.
10.2 Though completed before the effective date of this Agreement, the costs for the DCR performed
in 2020 as noted in paragraph 5 will be cost shared in accordance with the cost share percentages
presented in this Agreement.
10.3 Acquisition of fee simple estate rights-of-way and/or drainage easements required for the
PROJECT. All costs associated with any additional fee simple estate rights-of-way and/or drainage
easements acquired at the CITY’s request for non-flood control purposes will be borne solely by
the CITY and are not components of the PROJECT COST.
10.4 Relocation of conflicting utilities with prior rights, together with associated costs. Utilities in place
without prior rights will be relocated at their owners’ expense.
10.5 Obtaining United States Army Corps of Engineers Section 404 Permits for the PROJECT, and
costs associated with the mitigation efforts required by this permit process.
10.6 Each PROJECT PARTNER shall 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. The CITY shall be solely responsible for any costs that are not needed for the flood control features of
the PROJECT.
12. The PROJECT COST is estimated to be $5,300,000. This amount is an estimate based on the best
information available at the time of this Agreement, and is subject to change without amendment to this
IGA FCD 2020A013 PCN 450.01.30 PAGE 2 OF 9

Agreement. Upon recognition of anticipated costs above this estimated PROJECT COST, the PROJECT
PARTNERS shall communicate these anticipated increases.
13. DISTRICT funding for the PROJECT shall be from secondary flood control tax levy revenue and is
contingent upon funding availability within the DISTRICT’s Capital Improvement Program.
14. CITY funding for the PROJECT shall be from the CITY’s Capital Improvement Program (CIP) budget.
15, ‘The CITY shall:
15.1 Complete the update of the Design Concept Report (DCR for the roadway, water system, and
storm drain system improvements.
15.2 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.
15.3 Fund fifty percent (50%) of the PROJECT COST, making the CITY’s estimated share $2,650,000.
15.4 Serve as the lead agency for PROJECT design.
15.5 Upon award of a design contract for the PROJECT, and availability of DISTRICT funding,
invoice the DISTRICT for fifty percent (50%) of its share of the PROJECT COST associated with
the DCR and design.
15.6 Upon completion of the DCR and the design for the PROJECT, and availability of DISTRICT
funding, invoice the DISTRICT for its remaining share of all PROJECT COST associated with
DCR and design incurred to date.
15.7 Provide the DISTRICT with interim project submittals and allow three (3) weeks for review and
comment. Incorporate the DISTRICT comments into the PROJECT as appropriate.
15.8 Serve as the lead agency for obtaining USACE Section 404 Permit, and for completing mitigation
efforts required by this permit process.
15.9 Serve as the lead agency for obtaining City of Phoenix permits.
15.9.1 Invoice the DISTRICT for its share of the PROJECT COST associated with the Section
404 Permit and City of Phoenix permits as it is incurred and upon availability of
DISTRICT funding, no more frequently than quarterly, and no less frequently than
annually.
15.10 Serve as the lead agency for rights-of-way acquisition.
15.10.1 Obtain fee simple estate rights-of-way and/or easements required for the PROJECT. If it
is mutually agreed between the PROJECT PARTNERS that, project property 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.
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15.10.2 Invoice the DISTRICT for its share of the PROJECT COST for fee simple estate right-
of-way and/or easement acquisition as it is incurred and upon availability of DISTRICT
funding, no more frequently than quarterly, and no less frequently than annually.
15.10.3 Provide 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.
15.11 Serve as the lead agency for PROJECT public involvement activities.
15.12 Be responsible for assuring the safety and appropriateness of any non-flood control uses of the
PROJECT prior to offering to make or making the PROJECT available for such uses.
15.13 Obtain DISTRICT review and comments on the design and/or construction of any future changes
ot 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.
15.14 Prior to DISTRICT’s final cost share payment for the design conttact(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.
16. The DISTRICT shall:
16.1 Fund fifty percent (50%) of the PROJECT COST, making the DISTRICT’s estimated share
$2,650,000.
16.2 Subject to the availability of funding, within thirty (30) calendar days of receipt, pay all invoices
issued by the CITY in accordance with the terms of this Agreement. Currently the DISTRICT’s 5-
year Capital Improvement Program budget has funding for this PROJECT starting in FY21.
16.3 Participate in PROJECT public involvement activities.
16.4 Provide review comments to the CITY within three (3) weeks of receipt of the periodic PROJECT
submittals during the design process.
17. Each PROJECT PARNTER, and the PROJECT PARTNERS collectively:
17.1 Shall comply with A.R.S. Sections 41-4401 and 23-214, subsection A.
17.1.1 Each party to this Agreement retains the legal right to inspect the records of the other
party’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, subsection A.
17.1.2 Failure by either party to this Agreement to comply with A.R.S. Sections 41-4401 and 23-
214, subsection A shall be deemed a breach of this Agreement and is subject to penalties
up to and including termination of the Agreement.
17.2 Shall require that any contractor selected for the PROJECT:
17.2.1 Warrant compliance with all federal immigration laws and regulations that relate to its
employees and their compliance with A.R.S. section 23-214(A);
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17.2.2 Agree that a breach of the warranty shall be deemed a material breach of this Agreement
which entitles the other patty to obtain appropriate relief including termination of the this
Agreement;
17.2.3. Consent to inspection of all papers of the contractor or subcontractor employee(s) who
work(s) on the PROJECT to ensure that contractor or subcontractor is complying with
the warranty.
17.2.4 Who engages in for-profit activity and has 10 or more employees, 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.
17.3 Shall provide in-kind services and funds to acquire any permit(s) that a PROJECT PARTNER has
the authority to issue and that is required for the PROJECT.
17.4 Has the right, following 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.
17.5 Shall, in the event of any dispute arising pursuant to this Agreement, use their best efforts and
enter into good faith negotiations to resolve the disputed matters. However, this shall not limit the
tights of the PROJECT PARTNERS to seek any remedies provided by law.
17.6 Shall 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 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.
17.7 Shall 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 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 forty-five (45) days of acceptance by the PROJECT PARTNERS.
17.8 Shall comply with applicable federal, state and local privacy laws. A PROJECT PARTNER may
withhold CITY or DISTRICT information from the other PROJECT PARTNER if required by
such privacy laws or by CITY or DISTRICT policy or regulation. This Agreement is subject to the
restrictions of A.R.S. Sections 44-1373 and 44-7601.
18. If acceptable to all PROJECT PARTNERS, PROJECT invoicing may be conducted periodically based
on actual PROJECT COST incurred, no more frequently than quarterly, in lieu of invoicing timelines
otherwise established in this Agreement.
19. Each party to this Agreement shall, as “Indemnitor,” to the extent permissible by law, indemnify, defend
and hold harmless the other PROJECT PARTNER (“Indemnitee”) including agents, officers, directors,
governors and employees thereof, 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 Agreement, 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
IGA FCD 2020A013 PCN 450.01.30 PAGE 5 OF 9

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 any PROJECT PARTNER
offer to make the PROJECT available for any non-flood control uses, the offering PROJECT
PARTNER shall, to the extent permissible by law, indemnify, defend and save harmless the DISTRICT,
including agents, officers, directors, governors and employees thereof, from any and all loss or expense
incurred as a result of any claim or suit without limitation related solely to the non-flood control use of
the PROJECT or portions of the PROJECT. 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 related solely to the non-
flood control use of the PROJECT or portions of the PROJECT. This paragraph shall survive the
completion and/or termination of this Agreement.
20. All notices or demands upon any patty 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 City of Peoria
Director City Manager
2801 West Durango Street 8401 West Monroe Street
Phoenix, AZ 85009-6399 Peoria, AZ 85345
21. This Agreement shall expire ten (10) years from the effective date. This Agreement is subject to
cancellation by any party pursuant to the provisions of Arizona Revised Statutes Section 38-511.
22. Attached to this Agreement or contained herein ate 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.
23. 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, subject to any additional authorization required by the
DISTRICT?’s Board of Directors or the CITY’s City Council.
IGA FCD 2020A013 PCN 450.01.30 PAGE 6 OF 9

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 2020A013 has been reviewed pursuant to Arizona
Revised Statutes 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 2020A013 PCN 450.01.30 PAGE 7 OF 9

CITY OF PEORIA
A Municipal Corporation,
Cathy Carlat, Mayor
Date
“a
Attest:
By:
City Clerk
The foregoing Intergovernmental Agreement IGA FCD 2020A013 has been reviewed pursuant to Arizona
Revised Statutes 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 Peoria under the laws of the State of Arizona.
IGA FCD 2020A013 PCN 450.01.30 PAGE 8 OF 9
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IGA FCD 2020A013
EXHIBIT “A”
Project Site Map
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2
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(
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Parkside Ln
Pinnacle Peak Rd
ICP Near-Term
5-Acre Retention
Basin
Key Notes (Improvements Subject To This IGA)
1 Capacity Improvements Exist Happy Valley Est Basin
2 = Two New Regional Retention Basins and Diversion Weir Structure
3 New Regional Retention Basin (Currently Under Construction - Spring 2020)
4 New Regional Retention Basin (Allemate Location)
5 Existing Reiention Basin Capacity Upgrades
6 New Regional CBC (8 feet x § leet)
7 ~~ New Outfall Bleed off Pipe To New River
8 Now Local and Regional Storm Drain System in 67th Ave and Pinnacle Peak Rd
IGA FCD 2020A013 PCN 450.01.30 PAGE 9 OF 9