IGA RE WITH MCDOT FOR IMPROVEMENT TO MCMICKEN DAM OUTLET.PDF

INTERGOVERNMENTAL AGREEMENT
Between
MARICOPA COUNTY
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
IMPROVEMENTS TO PARCEL 503-53-018C
as part of the
MCMICKEN DAM OUTLET CHANNEL PHASE 1 PROJECT
District C-69-19-0XX-3-00, IGA FCD No. 2019A005
County C-64-19-300C-M-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, acting by and through its Board of
Directors, hereinafter called the DISTRICT, and Maricopa County, a political subdivision of the State of
Arizona, hereinafter called the COUNTY. The DISTRICT and the COUNTY may hereinafter individually
be referred to as a PROJECT PARTNER, or collectively as the PROJECT PARTNERS.
This Agreement shalt become effective as of the date it has been executed by both 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 COUNTY is empowered by A.R.S. Section 11-952 to enter into this Agreement and has authorized
the undersigned to execute this Agreement on behalf of the COUNTY.
BACKGROUND
3. The DISTRICT plans to construct the McMicken Dam Outlet Channel Phase 1 Project (CHANNEL
PROJECT), which is a component of the McMicken Dam Rehabilitation Project. The CHANNEL
PROJECT will construct an earthen below-grade channel north of the existing McMicken Dam Outlet
Channel levee and low-flow channel. The CHANNEL PROJECT is located approximately 1,700 feet
north of the COUNTY-owned land known as Assessor Parcel Number (APN) 503-53-018C.
4. The DISTRICT anticipates having more than one (1) million cubic yards of excess fill material from
construction of the CHANNEL PROJECT. The fill material has been environmentally approved for use
on State of Arizona Department of Transportation projects. Soils and environmental reports are
available for review upon request.
5. In an effort to reduce CHANNEL PROJECT costs, the DISTRICT is planning to deposit the excess fill
material on portions of DISTRICT property located nearby and also desires to deposit excess fill on
COUNTY owned APN 503-53-018C which was acquired by the COUNTY for the State Route 303
highway improvement project.
1GA FCD 2019A005 PCN 204.01.30 PAGE 1 OF 10

6. The COUNTY Board of Supervisors declared APNs 503-53-015C and 503-53-018C (also known as X-
0274-EX) as excess to the COUNTY'S needs on July 25, 2007 via Agenda Item No. C-64-07-280-0-00
and the parcels may be offered for sale in the future.
7. Currently, APN 503-53-018C (COUNTY PARCEL A) has a large depressed area that significantly affects
its market value. The area would need to be filled by any buyer in order for the land to be utilized to its
highest and best use and therefore the market value of the COUNTY PARCEL as it exists today would
be discounted by the cost of the fill to make the site level. In the ordinary course of construction of
flood control projects, excess fill dirt must be removed at considerable cost and expense to the
DISTRICT. As such, it would be beneficial to both the DISTRICT and the COUNTY to use
CHANNEL PROJECT fill material (estimated quantity approximately 250,000 CY) to bring the
depressed area up to the grade of and level with, COUNTY PARCEL A's surrounding topography.
8. On August 9, 2011, the Board of Directors of the DISTRICT adopted Resolution FCD 2010R009 (C-69-
12-005-6-00), authorizing the DISTRICT to prepare intergovernmental agreements with other agencies
for the cost-sharing, design, rights-of-way acquisitions, construction, construction management, and
operation and maintenance of the CHANNEL PROJECT.
9. Given the mutual benefit described above, the COUNTY and the DISTRICT desire to enter into this
Agreement to allow the DISTRICT to deposit sufficient CHANNEL PROJECT material to fill and bring
the depressed area on COUNTY PARCEL A generally level with the grade and slope of the property
surrounding the depression (FILL PROJECT) as approved by the COUNTY.
PURPOSE OF THE AGREEMENT
10. This Agreement identifies and defines the responsibilities of the DISTRICT and the COUNTY for FILL
PROJECT activities related to deposition and compaction of excess fill material.
TERMS OF AGREEMENT
11. The CHANNEL PROJECT, as referenced herein, is defined by paragraph three (3) of this Agreement;
the FILL PROJECT is defined in paragraph nine (9) above.
12. The DISTRICT, at its sole cost and expense, shall:
12.1. Construct a haul road through county parcel APN 503-53-015C (COUNTY PARCEL B) in the
approximate location shown on Exhibits "A" and "B", attached hereto and made a part hereof.
12.2. Excavate and haul CHANNEL PROJECT fill material to COUNTY PARCEL A via the haul
road and place the fill in the depressed area shown on Exhibit "A".
12.3. Haul sufficient material to fill and bring the depressed area within COUNTY PARCEL A level
with the grade and slope of the property surrounding the depression as approved by the
COUNTY.
12.4. Compact the fill material with heavy equipment. Compaction will be achieved solely by normal
construction equipment wheel loading, and no additional compaction effort will be required.
1GA FCD 2019A005 PCN 204.01.30 PAGE 2 OF 10

12.5. After fill and compaction activities are complete, use a standard Maricopa Association of
Governments (MAG) hydroseed mix approved by the COUNTY to stabilize the fitted area as
well as scarify and hydrosccd the haul road.
12.6. Serve as the lead agency for obtaining any permits required for the CHANNEL and FILL
PROJECTS.
12.7. Serve as the lead agency for CHANNEL and FILL PROJECT construction and construction
management.
12.8. Participate in a final inspection of the FILL PROJECT with the COUNTY.
13. The COUNTY shall:
13.1 Provide ingress and egress to COUNTY PARCELS A and B for the purposes set forth in this
Agreement, and allow the DISTRICT to place FIT J, PROJECT material on the COUNTY
property, at no cost to the DISTRICT.
13.2 Request and review available soils and environmental reports, as required and/or appropriate.
13.3 Participate in the final inspection of the FILL PROJECT with the DISTRICT and ultimately
provide final acceptance of the FILL PROJECT upon its completion.
14. Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:
14.1 Comply with A.R.S. Sections 41-4401 and 23-214, subsection A.
14.1.1 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.
14.1.2 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.
14.2 Require that any contractor selected for the CHANNEL or FILL PROJECT:
14.2.1 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); and
14.2.2 Agree that a breach of the warranty under paragraph 14.2.1 shall be deemed a material
breach of contract and is subject to penalties up to and including termination of the
contract; and
14.2.3 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) under this Agreement to ensure
that contractor or subcontractor is complying with the warranty under paragraph 17.2.1.
IGA FCD 2019A005 PCN 204.01.30 PAGE 3 OF 10

14.3 Pay for, and not seek reimbursement for, its own personnel and internal administrative costs
associated with the FILL PROJECT, including costs associated with the issue of FILL PROJECT
permits, unless specifically identified otherwise in this Agreement.
14.4 Provide in-kind services and/or costs to acquire any permit(s) required for the FILL PROJECT.
14.5 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.
14.6 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.
14.7 Agree to equally share the cost of a FILL PROJECT compliance and cost audit to be initiated
within sixty (60) days of FILL 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 FILL PROJECT into
compliance with the audit findings shall be made within forty five (45) days of acceptance by the
PROJECT PARTNERS.
14.8 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 will comply with applicable federal, state and local
privacy laws. A PROJECT PARTNER may withhold COUNTY or DISTRICT information from
the other PROJECT PARTNER if required by such privacy laws or by COUNTY or DISTRICT
policy or regulation.
14.9 Maintain and keep in full force the appropriate levels of insurance for each agency during the term
of this Agreement.
15. The target date for completion of CHANNEL and MIL PROJECT construction is January 31, 2020.
16. The DISTRICT funding for the CHANNEL and FILL PROJECT is from secondary flood control tax
levy revenue and is contingent upon funding availability within the DISTRICT'S Capital Improvement
Program.
17. 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 Indernnitee. 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 COUNTY offer to make
COUNTY PARCELS A and/or B available for any non-FILL PROJECT uses during the term of this
agreement, the COUNTY 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. Such indemnification
IGA FCD 2019A005 PCN 204.01.30 PAGE 4 OF 10

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.
18. 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 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
19. This Agreement shall expire either (a) ten (10) years from the effective date (or recording with the
Secretary of State), or (b) upon completion of the FILL 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.
20. This Agreement is subject to cancellation by any party pursuant to the provisions of A.R.S. Section
38-511.
21. The waiver by either party of any breach of any one or more of the covenants, conditions or provisions
of this Agreement shall not be construed to be a waiver of any subsequent or other breach of said
covenants, conditions or provisions of this Agreement. Any failure on the part of either party to require
or exact full and complete compliance with any of the covenants, conditions or provisions of the
Agreement shall not be construed to, in any manner, change the terms hereof or preclude such party
from enforcing the full provisions of this Agreement.
22. The Parties intend for this Agreement to comply with applicable laws. If any provision of this
Agreement is determined to be invalid, void, or illegal, then such determination shall not affect, impair, or
invalidate any other provision hereof, and the remaining provisions shall remain in full force and effect
and the parties shall use their commercially reasonable efforts to restate the invalid provision to the end
that it complies with applicable laws.
23. This Agreement shall be deemed to be made under, and shall be construed in accordance with and shall
be governed, interpreted and regulated by, the laws of the State of Arizona, and arbitration proceedings,
if applicable, or suit to enforce any provision of this Agreement, or to obtain any remedy with respect
hereto may be brought in the Superior Court of the State of Arizona, Maricopa County.
24. This Agreement, together with any exhibits attached hereto, constitutes the entire Agreement between
the Parties and sets forth all of the covenants, promises, agreements, conditions or understandings, either
oral or written, between COUNTY and the DISTRICT, and those agreements that are executed
contemporaneously herewith.
25. 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.
26. 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.
IGA FCD 2019A005 PCN 204.01.30 PAGE 5 OF 10

27. 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.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
IGA FCD 2019A005 PCN 204.01.30 PAGE 6 OF 10

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
Michael A. Fulton Date
Director
Approved and Accepted:
By:
Chairman, Board of Directors Date
Attest:
By:
Clerk of the Board Date
The foregoing Agreement FCD 2019A005 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
IGA FCD 2019A005 PCN 204.01.30 PAGE 7 OF 10

MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
0*-6zo
niferjr oth, P.E. Date
Maticopa County Department of Transportation
Approved and Accepted:
By:
Bill Gates, Chairman,
Board of Supervisors Date
Attest:
By:
Clerk of the Board Date
The foregoing Agreement FCD 2019A005 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 of Maricopa under the laws of the State of Arizona.
Deputy County Attorney Date
IGA FCD 2019A005 PCN 204.01.30 PAGE 8 OF 10

MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
67171170(1
, P.R. ---- Date
6ricopa County Department of Transportation
Approved and Accepted:
By:
Bill Gates, Chairman,
Board of Sup eivisors Date
Attest:
By:
Clerk of the Board Date
The foregoing Agreement FCD 2019A005 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 of Maricopa under the laws of the State of Arizona.
Deputy County Attorney Date
IGA FCD 2019A005 PCN 204.01.30 PAGE 8 OF 10

MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
D1
02- Th
Toth, P.E. te
D ector,3daricopa County Department of Transportation
Approved and Accepted:
By;
Bill Gates, Chairman,
Board of Supervisors Date
Attest:
By:
Clerk of the Board Date
The foregoing Agreement FCD 2019A005 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 of Maricopa under the laws of the State of Arizona.
Deputy County Attorney Date
1GA FCD 2019A0115 PCN 204.01.30 PAGE 8 OF 10

Exhibit A - IGA FCD 2019A005
McMicken Dam Outlet Channel Phase 1
• • Approximate Location of Haul Road
Depressed Area
1-1 County Parcels A & 13
— Channel Project Area
• Outlet Channel
2000 , 1,000 0 2,000 Feet
I
MMIN
t..a rap la • al re, m.o.:au 4:45.,a be: e.,!aa: gay Yr: aarAlla, Kat. .1 tr. r.tall oaf may :43a:s laa4ea.a anavs, drAlactu f.,01,71 a.: ay., Prid Ca.:1741 of laaaarpa Ot V1IiUI.
• ,-.7 ...a I VJ sia, ac1-.aa tar. • a.m.,. ISS.1.3 6V1 a. or v:a ea rap :a .40 mar.: a ‘41. me v.:Ana kr,
280L West Durango Street, Phoenix, Arizona 85009, (602) 506.1501 www,recionaricopa.cov
75F,dinark7.0.s.,,v1-0,`6,1,1”, (1,,,e,_2_14_1,A1,1,..n_J Imt_li,e_Itreurenl_E hbt_AjOq_20.4A0(Mi..J
IGA FCD 2019A005 PCN 204.01.30 PAGE 9 OF 10

Exhibit B
McMicken Dam Outlet Channel
IGA 2019A005
.1, TW,G2C
503-53-018C . .
60 3-5j:015. •
OL,
•I•I••2•_
rt.1.1.1.cD
• owl Outlet Channel
III Approximate Location of Haul Road
- Channel Project Area
I=1 MCDOT Parcel X-0274-EX
Assessor Parcels
I I FCDMC Parcel - Fee Land '
800 MCI 400 0 800 Feet
__sr*
721.77:46.18,- •• lazur LTA x' ,.FIF
AnA.A.A.A. tan IAJA.pa,AtA.11,7A1.A.A.Pra.A.,14.6,24.11.,rerrleAmololf-n AA-A AAAA ,A L'AAA, A, row," Ar.Y U... C., dAlaceatingt.A.A Ar.L. e--0, Are:AMA:, At At I
2801 West Durango Street, Phoenix, Arizona 85009, (602)506-1601
IGA FCD 2019A005 PCN 204.01.30 PAGE 10 OF 10