FINAL IGA FOR MOUNTAIN ROAD ERIE STREET DCR 3.6.14.PDF

INTERGOVERNMENTAL AGREEMENT BETWEEN MARICOPA COUNTY
AND THE FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
FOR THE MOUNTAIN ROAD/ERIE STREET
DRAINAGE IMPROVEMENTS DESIGN CONCEPT REPORT
(MCDOT Agenda Item C-64-14- ______ -M-00)
(FCD Agenda Item C-69-14-_____-3-00)
MCDOT Project# T480
FCD 2013A016
This Intergovernmental Agreement (“Agreement”) is between the County of Maricopa, a
political subdivision of the State of Arizona (the “County”), and the Flood Control District of
Maricopa County, a political subdivision of the State of Arizona (the “FCDMC”). The County
and the FCDMC are collectively referred to as the Parties or individually as a Party. All
references to “Party” or “Parties” in this Agreement shall include all of the Party or Parties’
departments, agencies, officers, employees, elected officials and/or agents, unless the
context shall clearly indicate otherwise.
STATUTORY AUTHORIZATION
1. A.R.S. Sections 11-251 and 28-6701 et. seq. authorizes the County to lay out,
maintain, control and manage public roads within the County.
2. A.R.S. Section 48-3603, as revised, authorizes the FCDMC to enter into this
agreement and has authorized the undersigned to execute this Agreement on behalf of
the FCDMC.
3. A.R.S. Sections 11-951 et. seq. authorizes public agencies to enter into
Intergovernmental Agreements for the provision of services or for joint or cooperative
action.
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BACKGROUND
4. The County, acting through the Maricopa County Department of Transportation
(MCDOT) Operations Division, completed the construction of a maintenance project to
address access issues along Erie and Mountain Roads. The County identified a
possible short-term solution and implemented as much of the solution as possible.
However, the location of the City of Mesa’s waterline beneath the existing roadside
channel flow prevented full implementation of the downstream channel improvements.
5. The FCDMC is currently conducting the East Mesa Area Drainage Master Plan
(ADMP) Update. The Erie and Mountain intersection is within the study boundary of the
ADMP Update.
6. The ADMP Update identified several preliminary alternative solutions to address
regional flooding issues impacting the area surrounding the Erie and Mountain
intersection.
7. The FCDMC and the County agreed to partner to facilitate a separate study to further
analyze and refine the preliminary solutions identified in the ADMP Update.
8. The intended outcome of the study includes identification of interim and ultimate
solutions to alleviate flooding problems affecting the portion of unincorporated
Maricopa County bounded by Williams Field Road to the south, Ray Road to the north,
Meridian Road to the east and the Signal Butte Road alignment to the west (see Figure
1).
9. The interim solution may include detention basins to attenuate the flows getting to
Williams Field Road. An ultimate solution could include a channel along Meridian
Road. The study will provide an analysis to determine the effectiveness of constructing
an interim solution compared to a phased construction of the ultimate solution.
10. Project Elements may include, but not be limited to:
i. Formulate and evaluate alternative solutions to mitigate the 100-year flood
event.
ii. Formulate and evaluate alternative solutions to mitigate the flooding caused
by more frequent events. This would serve as an interim solution until a
permanent solution to mitigate the 100-year flood is constructed.
iii. Refine recommended alternatives including performing hydrologic,
hydraulic and sediment analysis.
iv. Develop 15% level design drawings and an implementation plan.
v. Conduct public and stakeholder involvement.
11. Project benefits may include, but not be limited to, decreased road closures due to
flooding during more frequent events, the reduction of sediment and debris deposition
on roadways, and reduced flooding of homes and property.
12. The cost of the study is currently estimated at $100,000-$125,000. The study is
expected to begin in FY2014 and be completed in FY2015.
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PURPOSE OF THE AGREEMENT
13. The purpose of this Agreement is to identify and define the responsibilities of the County
and the FCDMC for the cost sharing, planning, analysis, and preparation of the
Mountain Road/Erie Street Drainage Improvements Design Concept Report (DCR).
TERMS OF THE AGREEMENT
14. Responsibilities of the County:
14.1 The County shall fully and actively participate in the DCR including sharing
data and attending scoping, progress, stakeholder and public meetings.
14.2 The County shall collaborate with the FCDMC and consent to the selection of a
consultant to prepare the DCR.
14.3 The County shall review and provide comments on interim and final project
submittals within three (3) weeks of receipt of the submittals.
14.4 The County shall jointly coordinate with FCDMC in public involvement and
stakeholder activities.
14.5 The County shall be responsible for 50% of the total cost of the DCR.
14.6 The County shall reimburse FCDMC for 50% of its share of the DCR costs,
within 30 calendar days of receipt of an approved invoice upon award of the
contract and/or issuance of the work assignment,.
14.7 The County shall reimburse FCDMC for its remaining share of the DCR costs,
within 30 calendar days of receipt of an approved invoice upon completion of
the DCR.
15. Responsibilities of the FCDMC:
15.1 The FCDMC shall act as the lead agency for all project management tasks to
include, but not be limited to, responding to data requests, public involvement
activities, scheduling meetings, interagency coordination, conducting work-
product reviews, obtaining necessary rights-of-entry and providing final review.
15.2 The FCDMC shall contract with a consultant to prepare the DCR, with the
collaboration and approval of the County.
15.3 The FCDMC shall develop, in coordination with the County, the scope of
services for a consultant to be hired to prepare the DCR.
15.4 The FCDMC shall be responsible for contract administration and payment to
the consultant for work performed in accordance with the contract documents.
15.5 The FCDMC shall provide interim and final project submittals to the County for
review and comment.
15.6 The FCDMC shall actively cooperate with the County to resolve and/or
incorporate the County’s comments as required.
15.7 The FCDMC shall, in collaboration with the County, conduct public involvement
and stakeholder activities.
15.8 The FCDMC shall invoice the County for 50% of the County’s cost share for
the DCR upon award of the contract and/or issuance of the work assignment.
15.9 The FCDMC shall invoice the County for the County’s remaining cost share for
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the DCR upon completion of the DCR.
GENERAL TERMS AND CONDITIONS
16. 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 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 OTHER PARTY use, offer to make or make the PROJECT available for any non-
flood control uses, the OTHER PARTY 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.
17. This Agreement shall become effective as of the date it is approved by the Maricopa
County Board of Supervisors and the Flood Control District Board of Directors,
whichever is later, 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. Any Party may terminate this Agreement upon furnishing the other Party with
a written notice at least thirty (30) days prior to the effective termination date.
18. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
19. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
that:
19.1 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
years, whichever is longer.
19.2 Any breach of the warranty, shall be deemed a material breach of the
contract contract that is subject to penalties up to and including termination
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of the contract.
19.3 They 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.
19.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
19.5 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.
20. 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) 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.
21. All notices required under this agreement to be given in writing shall be sent to:
Maricopa County Department of Transportation
Transportation Director and County Engineer
2901 West Durango Street
Phoenix, AZ 85009-6399
Flood Control District of Maricopa County
Chief Engineer and General Manager
2801 West Durango Street
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), by overnight service that
guarantees next day delivery and that provides written receipt, or by regular, certified or
registered mail or U.S. Postal Service Express Mail, with postage prepaid, and shall be
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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.
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 grant authority to control the subject roadway, except to the
extent necessary to perform the tasks expressly undertaken pursuant to 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 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 between the Parties o
this Agreement with respect to the identified Project, 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. Each party has reviewed this
Agreement and has had the opportunity to have it reviewed by legal counsel.
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.
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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 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. Unless otherwise lawfully terminated by the Parties, this Agreement expires upon
completion and acceptance of the Project and fulfillment of all terms of the Agreement.
38. 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.
39. 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 either party.
40. The Parties to this Agreement 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
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signature below, each party acknowledges that it is aware that the Civil Services
Division will represent both parties to this Agreement, and each party expressly waives
any conflict created thereby.
End of Agreement - Signature Pages Follow
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Figure 1
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
MARICOPA COUNTY
Recommended by:
__________________________________
John B. Hauskins, P.E. Date
Transportation Director & County Engineer
Approved and Accepted by:
__________________________________
Denny Barney, Chairman Date
Board of Supervisors
Attest by:
__________________________________
Clerk of the Board Date
APPROVAL OF DEPUTY COUNTY ATTORNEY
I hereby state that I have reviewed the proposed Intergovernmental Agreement and declare the
Agreement to be in proper form and within the powers and authority granted to the County by its
governing body under the laws of the State of Arizona.
__________________________________
Deputy County Attorney Date
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
FLOOD DISTRICT OF MARICOPA COUNTY
Recommended by:
__________________________________
Timothy S. Phillips, P.E. Date
Chief Engineer & General Manager
Approved and Accepted by:
__________________________________
Denny Barney, Chairman Date
Board of Directors
Attest by:
__________________________________
Clerk of the Board Date
APPROVAL OF FLOOD CONTROL DISTRICT GENERAL COUNSEL
The foregoing Intergovernmental Agreement FCD 2013A016 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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