2020A030 IGA - PARADISERIDGE_FINAL 12-21-20.DOCX

INTERGOVERNMENTAL AGREEMENT
Between
THE CITY OF PHOENIX
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
DESIGN, RIGHTS-OF-WAY ACQUISITION, UTILITY RELOCATIONS, CONSTRUCTION,
CONSTRUCTION MANAGEMENT, OPERATION AND MAINTENANCE
of the
PARADISE RIDGE DRAINAGE IMPROVEMENTS
IGA FCD 2020A030
Agenda Item _____________________
This Intergovernmental Agreement (Agreement) is entered into by and between the City of
Phoenix, a municipal corporation, acting by and through its 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), and the Phoenix City Charter,
Chapter 2, Section 2, to enter into this Agreement, and by action of its City Council via
Ordinance S-46461 passed on March 18, 2018, has authorized the undersigned to execute
this Agreement on behalf of the CITY.
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BACKGROUND
3. The Paradise Ridge area is within the CITY’s jurisdiction and is bounded by State Route 101
on the south, Pinnacle Peak Road on the north, Scottsdale Road on the east, and the 64th
Street alignment on the west. The land within the area described above is currently State Trust
Land managed by the Arizona State Land Department (ASLD).
4. The Paradise Ridge Channel is the next downstream segment of the Rawhide Wash drainage
solution and was identified in the Pinnacle Peak West Area Drainage Master Study as being a
necessary component to control the alluvial fan flooding in the area. The improvements will
reduce the flood hazard in the area and complete the final step of a comprehensive solution to
mitigate flooding within the Rawhide Wash drainage corridor.
5. In August 2019, the DISTRICT prepared a Design Concept Report entitled Rawhide Wash
Channelization Design Concept Report, Conceptual Channel Design (DCR) which provided
the conceptual plan to mitigate flooding in the area.
6. In May 2020, the CITY submitted the PROJECT for consideration in the DISTRICT’s Fiscal
Year 2020/2021 Capital Improvements Program, and with District Director concurrence, the
PROJECT was recommended for inclusion into the DISTRICT’s Capital Improvement
Program.
7. On June 18, 2020, the CITY entered into Intergovernmental Agreement, Phoenix Contract
No. 152408-0 with the ASLD (PHOENIX-ASLD IGA) by which ASLD agreed to provide
funds to the CITY for the PROJECT, and title to real property at no cost to the CITY for
construction, operation, and maintenance of the PROJECT.
8. On October 7, 2020, the Board of Directors of the DISTRICT adopted Resolution FCD
2020R003 (C-69-21-028-X-00), authorizing the DISTRICT to cost-share in the PROJECT,
and to negotiate Intergovernmental Agreements for the design, right-of-way acquisitions,
utility relocations, construction, construction management, and operation and maintenance of
the PROJECT.
9. This PROJECT will mitigate the Rawhide Wash alluvial fan flooding hazard west of Scottsdale
Road by capturing and conveying the 100-year flow in a new drainage channel and appurtenant
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structures along the approximate Rawhide Wash alignment, west of Scottsdale Road to the
existing culvert system at State Route 101. (Refer to Exhibit “A”).
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, utility relocations,
construction, construction management, operation and maintenance.
TERMS OF AGREEMENT
11. The BACKGROUND provisions and PURPOSE OF THE AGREEMENT provisions are
hereby incorporated into the terms of this Agreement.
12. The PROJECT, as referenced herein, is defined by paragraph 9 of this Agreement.
13. The PROJECT COST, as referenced herein, solely encompasses the following costs directly
associated with the PROJECT that are incurred after the effective date of this Agreement:
13.1 All costs of obtaining all necessary Federal Emergency Management Agency (FEMA)
Conditional Letters of Map Revision (CLOMRs) and Letters of Map Revision (LOMRs)
intended to reduce the limits of the current delineated floodplain due to the construction
of the PROJECT.
13.2 All costs associated with the relocation of conflicting utilities in place with prior rights.
Utilities in place without prior rights will be relocated at their owners’ expense and are
not components of the PROJECT COST.
13.3 Costs of obtaining United States Army Corps of Engineers (USACE) Section 404
Permits for the PROJECT, and costs associated with the mitigation efforts required by
the USACE permit process.
13.4 Costs of design, construction, construction management and post-design contracts.
13.4.1 Shared costs of landscaping and aesthetic features in accordance with and not to
exceed the DISTRICT’s “Policy for the Aesthetic Treatment and Landscaping of
Flood Control Projects” (POLICY). Any other landscaping, aesthetic features or
amenities, in addition to those allowed by the DISTRICT’s POLICY, and if
compatible with the PROJECT function, may be included in PROJECT contracts
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at the request of the CITY; however, the additional construction and associated
construction management costs of said additional improvements shall be paid by
the CITY at its sole costs and expense, and are not components of the PROJECT
COST.
13.4.2 If construction management services are not accomplished under contract,
construction management costs shall be assigned a value of eight percent (8%) of
the actual construction cost of the PROJECT plus actual costs for materials testing
and survey work associated with construction management.
13.5 Each PROJECT PARTNER shall, at its sole cost and expense, pay for, and not seek
reimbursement for, its own personnel and internal administrative costs associated with
this PROJECT, including costs associated with the issuance of PROJECT permits, unless
specifically identified otherwise in this Agreement.
14. The PROJECT COST associated with this Agreement is estimated to be $32,000,000.
14.1 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 PROJECT COSTS exceed the estimated amount, each party shall be notified of
such increase and, unless objection is provided within 30 days, 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.
15. DISTRICT funding for this Agreement shall be from secondary flood control tax levy revenue
and is contingent upon funding availability within the DISTRICT’s Capital Improvement
Program.
16. CITY funding for this Agreement shall be from, and is contingent upon, funds provided by
ASLD in accordance with the PHOENIX-ASLD IGA, except for the CITY’s obligation to fund
the CITY’s portion of the PROJECT design costs pursuant to paragraph 19.4 of this
Agreement.
17. The CITY, in accordance with the PHOENIX-ASLD IGA, will acquire all rights-of-way on
State Land at no cost to the PROJECT. The CITY’s performance under this Agreement is
contingent upon acquiring all rights-of-way at no cost through the PHOENIX-ASLD IGA.
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18. The DISTRICT shall:
18.1 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 DISTRICT.
18.2 Fund 50% of the PROJECT COST making the DISTRICT’s estimated share
$16,000,000.
18.3 Serve as the lead agency for PROJECT design.
18.4 Upon completion of 100% construction documents and;
18.4.1 Upon award of the construction contract, shall invoice the CITY for the CITY’s
share of the PROJECT design cost, OR;
18.4.2 Upon opening and rejection of the construction bids due to unacceptable
construction costs, as agreed upon between the PROJECT PARTNERS, shall
invoice the CITY for the CITY’s share of the PROJECT design cost, OR;
18.4.3 If the project fails to move into construction for any reason, shall invoice the CITY
for the CITY’s share of all PROJECT COSTS, including the PROJECT design costs
incurred to date.
18.5 Provide to the CITY interim progress submittals and allow 3 weeks from submittal for
review and comment. If the CITY has not responded within the 3 week review period,
the DISTRICT will conclude that the CITY has no comments. The DISTRICT shall
incorporate CITY comments into the PROJECT as appropriate.
18.6 Serve as the lead agency for obtaining USACE Section 404 Permit, if necessary, and for
completing mitigation efforts required by the USACE permit process.
18.6.1 Upon completion of 100% construction documents, and award of a construction
contract for the PROJECT, invoice the CITY for 100% of the CITY’s share of the
PROJECT COST associated with the USACE Section 404 Permit, if applicable.
18.7 Serve as the lead agency for obtaining the CLOMR/LOMR from FEMA for the
PROJECT.
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18.7.1 Upon completion of 100% construction documents and award of a construction
contract for the PROJECT, invoice the CITY for 100% of the CITY’s share of the
PROJECT COST associated with the CLOMR/LOMR.
18.8 Serve as the lead agency for utility relocations required for the PROJECT.
18.8.1 Coordinate with the CITY for the relocation of conflicting utilities within the
CITY’s rights-of-way.
18.8.2 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.
18.8.3 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.
18.8.4 Upon completion of 100% construction documents and award of a construction
contract for the PROJECT, invoice the CITY for 100% of the City’s share of the
PROJECT COST associated with utility relocation.
18.9 Serve as the lead agency for PROJECT construction and construction management.
18.10Upon award of a construction contract for the PROJECT, invoice the CITY for 50% of
the CITY’s share of the PROJECT COST associated with construction and construction
management.
18.11Upon completion of a construction contract for the PROJECT, prepare a final accounting
including change orders and construction management costs not previously paid, and
invoice the CITY for the remainder of the CITY’s share of all PROJECT COST incurred
to date.
18.12For any non-flood control costs that are not a component of the PROJECT COST that
have been incurred at the request of the CITY, such as provided by paragraph 13.4.1 of
this Agreement, invoice the CITY as these costs are incurred.
18.13Serve as the lead agency for PROJECT public involvement activities.
18.14Participate in a final inspection of the PROJECT with the CITY.
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18.15Participate, as desired by the DISTRICT, with the CITY in an annual inspection of the
PROJECT.
18.16The DISTRICT reserves the right to review and comment on the design and/or
construction of any future modifications to the PROJECT that may affect the hydraulic
function of the PROJECT.
19. Subject to the contingencies set out in paragraph 16 and 17, the CITY shall:
19.1 Fund 50% of the PROJECT COST making the CITY’s estimated share $16,000,000.
19.2 Serve as the lead agency for PROJECT rights-of-way (fee simple or easement)
acquisition.
19.3 Provide all CITY owned and controlled rights-of-way (fee simple or easements)
necessary for the PROJECT, and not specifically purchased for this PROJECT, at no cost
to the PROJECT.
19.4 Pay all invoices issued by the DISTRICT for the CITY’s share of the PROJECT COST
associated with the PROJECT design in accordance with the terms of this Agreement:
19.4.1 within 30-days following bid opening and award of contract, OR;
19.4.2 within 60-days following bid opening and rejection of the construction bids, OR
failure of the project to move into construction for any reason, including as
presented in paragraph 18.4.
19.5 Within 30 calendar days of receipt, pay all invoices issued by the DISTRICT in
accordance with the terms of this Agreement for 100% of the CITY’s share of the
PROJECT COST associated with utility relocations, CLOMR/LOMR, Section 404
Permit construction and construction management of the PROJECT.
19.6 Participate in PROJECT public involvement activities.
19.7 Within 3 weeks of receipt of interim PROJECT submittals, provide review comments to
the DISTRICT.
19.8 Within 1 week of receipt of the PROJECT construction plans, return the signed
construction plans cover sheet to the DISTRICT.
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19.9 Cause to be relocated at no cost to the PROJECT all utilities within its jurisdiction that
are in place by permit and/or without prior rights.
19.10Participate in the final inspection of the PROJECT with the DISTRICT.
19.11Be responsible for all operations and maintenance of the PROJECT.
19.11.1The maintenance activities to be performed include, but are not limited to,
maintaining the flood control function of the PROJECT, including sediment and
vegetation removal and any and all aesthetic, park, and public use features,
maintenance of landscaping, irrigation, multi-use trails and berms, removal of
trash and debris, electricity and other operation costs for the facilities, vandalism
repair and replacement, and structural repair and replacement of the flood control
structures.
19.11.2Schedule, and invite the DISTRICT to participate in, an annual inspection of the
PROJECT. Any deficiencies relating to flood control for which the CITY is
responsible shall be corrected by the CITY within 30 calendar days. If the CITY
has not taken corrective action within this time, the DISTRICT reserves the right
to perform the corrective action and the CITY shall reimburse the DISTRICT for
the total costs incurred by the DISTRICT within 30 calendar days of receipt of
an invoice from the DISTRICT.
19.11.3On an annual basis, commencing on the first anniversary date of the completion
and acceptance of the PROJECT, the CITY will provide written notification to
the DISTRICT that the PROJECT has been properly maintained by the CITY
over the past year in accordance with the PROJECT design intent and to ensure
proper hydraulic function.
19.12Be responsible for assuring the safety and appropriateness of any non-flood control uses
of the PROJECT rights-of-way and/or improvements prior to offering to make or making
the PROJECT rights-of-way and/or improvements available for such uses.
19.13Obtain DISTRICT review and comments on the design and/or construction of any future
modifications to the PROJECT, and resolve and/or incorporate the DISTRICT’s
comments into these future PROJECT modifications.
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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 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(A).
20.1.2 Failure by either party 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 other party to this Agreement retains the legal right to inspect the
papers of the contractor or subcontractor employee(s) who work(s) on this
PROJECT to ensure that contractor or subcontractor is complying with the
warranty under paragraph 20.2.1.
20.2.4 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. Section 4842 or a regulation issued pursuant to
50 U.S.C. Section 4842.
20.3 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.
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20.4 Support the LOMR processes for the PROJECT by assisting in the development of the
operation plan and the maintenance plan to be submitted to FEMA and by reviewing the
LOMR documents in a timely manner.
20.5 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.
20.6 In the case of any dispute over any items in this Agreement, agree to use their best efforts
and enter into good faith negotiations to resolve the disputed matters. However, this
shall not limit the rights of the PROJECT PARTNERS to seek any remedies provided by
law.
20.7 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.
20.8 Agree to equally share the cost of a 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 of the
audit finding by the PROJECT PARTNERS.
20.9 The PROJECT PARTNERS understand that this Agreement is subject to the restrictions
of A.R.S. Sections 44-1373, 44-7501 and 44-7601 and agree to 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.
21. The PROJECT may be phased for design and/or construction due to funding or other
coordination issues. Responsibilities of the DISTRICT and the CITY shall be phased
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accordingly, including, but not limited to, invoicing, reimbursements, transfer of land rights
and acceptance of operation and maintenance of the PROJECT.
22. If mutually acceptable to the PROJECT PARTNERS, PROJECT invoicing may be conducted
periodically based on actual PROJECT COSTS incurred, but 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 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 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 or 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 resulting from that non-flood control use
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
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Director
2801 West Durango Street
Phoenix, AZ 85009-6399
City of Phoenix
Street Transportation Director
200 W. Washington Street
5th Floor
Phoenix, AZ 85003-1611
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 of all parties, this Agreement may be amended or terminated. The operation,
maintenance and 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.
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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 2020A030 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
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CITY OF PHOENIX
A Municipal Corporation,
Ed Zuercher
City Manager
By: _______________________________________________
Kini L. E. Knudson Date
Street Transportation Director
Attest:
By:
City Clerk Date
The foregoing Intergovernmental Agreement IGA FCD 2020A030 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
Phoenix under the laws of the State of Arizona.
By:
City Attorney Date
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IGA FCD 2020A030
EXHIBIT “A”
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