IGA RE DRAINAGE TT347 WITH FLOOD CONTROL DISTRICT.DOCX

INTERGOVERNMENTAL AGREEMENT
Between
MARICOPA COUNTY
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
DESIGN, RIGHTS-OF-WAY ACQUISITION, UTILITY RELOCATIONS, CONSTRUCTION,
CONSTRUCTION MANAGEMENT AND OPERATION AND MAINTENANCE
of the
NORTHERN PARKWAY DRAINAGE IMPROVEMENTS: DYSART ROAD TO 111TH AVENUE
IGA FCD 2015A012
MCDOT____________________
FCD_______________________
This Intergovernmental Agreement (Agreement) is entered into by and between Maricopa
County, a political subdivision of the State of Arizona, acting by and through its Board of
Supervisors, hereinafter called the COUNTY, 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 COUNTY and DISTRICT are hereinafter
collectively called the PROJECT PARTNERS.
This Agreement shall become effective as of the date it has been executed by the PROJECT
PARTNERS.
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STATUTORY AUTHORIZATION
1. The COUNTY is empowered by Arizona Revised Statutes (A.R.S.) Section 11-251 and
Section 28-6701 to enter into this Agreement and has authorized the undersigned to execute
this Agreement on behalf of the COUNTY.
2. The DISTRICT is empowered by 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.
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BACKGROUND
3. This project is located in the White Tanks / Agua Fria watershed. The limits of the area
tributary to or impacted by the project are State Route Loop 303 (SR303L) to the west,
Waddell Road to the north, 111th Avenue to the east, and the Dysart Drain on the south.
4. The project area was included in the White Tanks / SR303L Area Drainage Master Plan
(White Tanks ADMP) completed in 2005. The White Tanks ADMP and subsequent
updates and studies recommended a regional drainage system including collector channels
adjacent to the planned Northern Parkway, discharging to the Dysart Drain and Agua Fria
River. The first phase of these improvements was submitted to and recommended by the
DISTRICT’s CIPP process in FY2010. This phase was submitted to and recommended by
the DISTRICT’s FY2014 CIPP process.
5. At the Agua Fria River, the existing Northern Avenue is a paved at-grade crossing depressed
several feet below the natural streambed elevation. The Northern Parkway project is a
regional transportation corridor that includes open channels and culverts designed to collect
regional 100-year storm flows, and convey these flows, along with roadway drainage, from the
Northern Parkway to the Dysart Drain and Agua Fria River; a new bridge at the Agua Fria
River and Cement Stabilized Alluvium (CSA) guide banks to protect the roadway
embankment and bridge abutments. The new drainage facilities will include storm drain
pipes, culverts, earthen and concrete lined channels, and two basins west of the Agua Fria
River that will collect offsite flows to ultimately be discharged to the Agua Fria River. These
drainage features are included in the Northern Parkway interim roadway plans (MCDOT
Project No. TT347, federal Project No. STP-MMA-0(239)F. The COUNTY and
DISTRICT recognize that these drainage features serve both roadway drainage needs of the
Northern Parkway facility, as well as regional flood control purposes, and have therefore
agreed to split the cost of these features equitably.
6. For the purposes of this Agreement, the PROJECT includes two proposed basins, a box
culvert and channel segment, and that portion of the CSA abutment protection for the Agua
Fria Bridge which provides maintenance and trail access for future Agua Fria River
development. The north basin, between Dysart Road and 125th Avenue, will collect both the
on-site and off-site drainage and discharge to the new box culvert crossing the Parkway. The
second basin will be located southeast of El Mirage Road, and will collect the majority of the
on-site runoff and regional drainage from the 127th Avenue alignment east to the Agua Fria
IGA FCD 2015A012 PCN 470.15.32 PAGE 3 OF 17

River, and north to Olive Avenue, discharging into the Agua Fria River. The proposed
channel segment will run parallel to the south side of Northern Parkway from the new box
culvert to 125th Avenue, and will collect both on-site and off-site flows and discharge them to
the Dysart Drain. The limits of the proposed project are shown in Exhibit A.
The PROJECT will:
 Convey 100-year storm flows to their natural outlets in an accessible, maintainable, and
better defined conveyance system than exists today.
 Convey regional flood flows along with on-site drainage from the proposed Northern
Parkway to the Dysart Drain and Agua Fria River.
 Provide an all-weather Agua Fria River bridge crossing consistent with the Agua Fria
River Master Plan.
7. The Northern Parkway intergovernmental agreement between the COUNTY and the cities
of El Mirage, Glendale and Peoria, authorizing the COUNTY to be the lead agency for
design and construction of the Northern Parkway including related drainage facilities was
approved by the County Board of Supervisors and recorded on December 26, 2008 –
Recorder’s No. 2008-1088049.
8. Resolution FCD 2007R002A (C-69-07-069-6-01) authorizes the DISTRICT to develop and
negotiate agreements for the design, rights-of-way acquisition, utility relocations,
construction, construction management and operation and maintenance of the PROJECT,
subject to the ratification and approval of the Board of Directors.
9. The PROJECT PARTNERS acknowledge the COUNTY’s intent to delegate ownership,
operation, and maintenance of the PROJECT to the cities of El Mirage, Glendale and/or
Peoria under a separate agreement.
PURPOSE OF THE AGREEMENT
10. This Agreement identifies and defines the responsibilities of the DISTRICT and the
COUNTY for PROJECT activities related to design, rights-of-way acquisition, utility
relocations, construction, construction management and operation and maintenance.
11. The PROJECT, as referenced herein, is defined by paragraph 6 of this Agreement.
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12. 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:
12.1 Costs of construction and construction management of PROJECT features as
described in paragraph 6 above.
12.1.1 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).
12.1.2 Each PROJECT PARTNER will 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.
12.2 All costs associated with acquiring rights-of-way required for the PROJECT. All costs
associated with additional rights-of-way acquired at the DISTRICT’s request will be
borne solely by the DISTRICT and are not components of the PROJECT COST.
12.3 Costs of relocating conflicting utilities in place by prior rights. Utilities in place without
prior rights will be relocated at their owners’ expense and are not components of the
PROJECT COST.
13. The PROJECT COST associated with this Agreement is estimated to be $6,832,240.
13.1 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.
Upon recognition of anticipated cost increases above this estimated PROJECT COST,
PROJECT PARTNERS shall communicate these anticipated increases before they are
incurred and agreed upon.
14. 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.
15. COUNTY funding for this Agreement shall be from the Maricopa County Department of
Transportation’s (MCDOT) Transportation Improvement Program (TIP) budget and is
contingent upon funding availability within MCDOT’s TIP. Any MCDOT funding provided
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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 in such fiscal year.
16. The target date for completion of PROJECT construction is FY2017. The COUNTY shall
inform the DISTRICT of delays impacting this target completion date.
17. The DISTRICT shall:
17.1 Fund fifty percent (50%) of the PROJECT COST, making the DISTRICT’s estimated
share $3,416,120.
17.2 Within thirty (30) calendar days of receipt and subject to availability of funds as per
Paragraph 14, pay all invoices issued by the COUNTY in accordance with the terms of
this Agreement. At the time of the preparation of this Agreement, District funding for
this project will not be available until FY19 at the earliest.
17.3 Participate in PROJECT public involvement activities.
17.4 Participate in the final inspection of the PROJECT with the COUNTY.
17.5 Review and approve all change orders during the construction phase of the PROJECT.
Any additional costs approved by the PROJECT PARTNERS due to change orders
during the construction phase will be shared as a PROJECT COST.
17.6 Discuss future projects with COUNTY regarding implementation of structural
maintenance and major repair of the facilities, including PROJECT reconstruction and
replacement, if necessary, and associated costs, as a result of storm flows in excess of a
10-year storm event.
18. The COUNTY shall:
18.1 Fund fifty percent (50%) of the PROJECT COST, making the COUNTY’s estimated
share $3,416,120.
18.2 Serve as the lead agency for PROJECT design.
18.3 Provide to the DISTRICT interim project submittals and allow three (3) weeks
for review and comment. Incorporate the DISTRICT comments into the PROJECT as
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appropriate. If the DISTRICT has not responded within the three (3) week review
period, the COUNTY will assume that the DISTRICT has no comments.
18.4 Serve as the lead agency for obtaining United States Army Corps of Engineers Section
404 Permit, and for completing mitigation efforts required by this permit process.
18.5 Serve as the lead agency for obtaining Federal Emergency Management Agency
(FEMA) Conditional Letters of Map Revision (CLOMRs) and Letters of Map Revision
(LOMRs).
18.6 Serve as the lead agency for utility relocations required for the PROJECT.
18.7 Serve as the lead agency for PROJECT rights-of-way acquisition.
18.7.1 Invoice the DISTRICT for its share of the PROJECT COST associated with
rights-of-way acquisition as it is incurred, no more frequently than quarterly, and
no less frequently than annually, recognizing that District funding for the
PROJECT may not be available until FY19.
18.8 Serve as the lead agency for PROJECT construction and construction management.
18.8.1 Invoice the DISTRICT for its share of the PROJECT COST associated with
construction, construction management and post design services as it is
incurred, no more frequently than quarterly, and no less frequently than
annually, recognizing that District funding for the PROJECT may not be
available until FY19.
18.8.2 Upon completion of the construction contract for the PROJECT, prepare a final
accounting including change orders and construction management costs not
previously paid, and invoice the DISTRICT for the remainder of its share of all
PROJECT, recognizing that District funding for the PROJECT may not be
available until FY19.
18.9 If the COUNTY incurs additional flood control costs that are not a component of the
PROJECT at the request of the DISTRICT, invoice the DISTRICT as these costs are
incurred, no more frequently than quarterly, and no less frequently than annually.
18.10Serve as the lead agency for PROJECT public involvement activities.
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18.11Participate in a final inspection of the PROJECT with the DISTRICT.
18.12Be responsible for all operations and maintenance of the PROJECT.
18.12.1The 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. .
18.13Provide all COUNTY owned and controlled rights-of-way necessary for the PROJECT,
and not specifically purchased for this PROJECT, at no cost to the PROJECT.
18.14Obtain DISTRICT review and comments on the design and/or construction of any
future changes or 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.
19. Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:
19.1 Comply with A.R.S. Sections 41-4401 and 23-214, subsection A.
19.1.1 Each of the PROJECT PARTNERS retains the legal right to inspect the records
of the other PROJECT PARTNER 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.
19.1.2 Failure by either PROJECT PARTNER 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.
19.2 Require that any contractor selected for the PROJECT:
19.2.1 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);
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19.2.2 Agree that a breach of the warranty under paragraph 18.2.1 shall be deemed a
material breach of contract and is subject to penalties up to and including
termination of the contract;
19.2.3 Agree that the other PROJECT PARTNER retains the legal right to inspect the
papers of the contractor or subcontractor employee(s) who work(s) on this
Agreement to ensure that contractor or subcontractor is complying with the
warranty under paragraph 18.2.1.
19.3 Provide in-kind services and costs to acquire any permit(s) required for the PROJECT.
19.4 Have the right, following mutual written agreement of both 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.
19.5 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.
19.6 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.
19.7 Agree to equally share the cost of 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.
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20. If mutually acceptable to the 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.
21. Each PROJECT PARTNERS 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 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 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.
22. This Agreement does not imply authority to perform any tasks, or accept any responsibility,
not expressly stated in this Agreement.
23. This Agreement does not create a duty or responsibility unless the intention to do so is
clearly and unambiguously 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
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Supervisors in such fiscal year. This Agreement may be terminated by any PROJECT
PARTNER 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 PROJECT PARTNERS
and their respective successors and assignees. Neither PROJECT PARTNER shall assign its
interest in this Agreement without the prior written consent of the other PROJECT
PARTNER
.
26. This Agreement and all Exhibits attached to this Agreement set forth all of the covenants,
promises, agreements, conditions and understandings between the PROJECT PARTNERS
to this Agreement, and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between the PROJECT PARTNERS 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 PROJECT PARTNER drafting this Agreement. This Agreement cannot be modified or
changed except by a written instrument executed by both PROJECT PARTNERS hereto.
Each PROJECT PARTNER has reviewed this Agreement and has had the opportunity to
have it reviewed by legal counsel.
27. The waiver by any PROJECT PARTNER 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.
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30. Nothing contained in this Agreement shall create any partnership, joint venture or other
agreement between the PROJECT PARTNERS 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 signatures.
34. The PROJECT PARTNERS 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 PROJECT PARTNER pursuant to this Agreement.
35. The PROJECT PARTNERS 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. All notices or demands upon any PROJECT PARTNER 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
Chief Engineer and General Manager
2801 West Durango Street
Phoenix, AZ 85009-6399
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Maricopa County Department of Transportation
Intergovernmental Relations Branch Manager
2901 West Durango Street
Phoenix, AZ 85009-6399
38. This Agreement shall expire either (a) ten (10) years from the date of approval by the
PROJECT PARTNERS, 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 PROJECT
PARTNERS, this Agreement may be amended or terminated. The operation and
maintenance and indemnification provisions of this Agreement shall survive the expiration of
this Agreement.
39. This Agreement is subject to cancellation by any PROJECT PARTNER pursuant to the
provisions of Arizona Revised Statutes Section 38-511.
40. Attached to this Agreement or contained herein are the written determinations by the
appropriate attorneys for the PROJECT PARTNERS 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.
41. If legislation is enacted after the effective date of this Agreement that changes the
relationship or structure of one or more PROJECT PARTNERS, the PROJECT PARTNERS
agree that this Agreement shall be renegotiated at the written request of any PROJECT
PARTNER.
42. 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 PROJECT PARTNER acknowledges that it is aware that the Civil Services Division will
represent these two PROJECT PARTNERS, and each PROJECT PARTNER expressly
waives any conflict created thereby.
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FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Municipal Corporation
Recommended by:
William D. Wiley, P.E. Date
Chief Engineer and General Manager
Approved and Accepted:
By:_______________________________
Chairman, Board of Directors Date
Attest:
By:________________________________
Clerk of the Board Date
The foregoing Intergovernmental Agreement FCD 2015A012 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
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MARICOPA COUNTY
A Political subdivision of the State of Arizona
Recommended by:
Jennifer Toth, P.E. Date
Transportation Director
Approved and Accepted:
By:________________________________
Chairman, Board of Supervisors Date
Attest:
By_________________________________
Clerk of the Board Date
The foregoing Intergovernmental Agreement FCD 2015A012 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 Maricopa
County under the laws of the State of Arizona.
Deputy County Attorney Date
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IGA FCD 2015A012
EXHIBIT “A”
IGA FCD 2015A012 PCN 470.15.32 PAGE 16 OF 17

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