CONTRACT 2026-035-COS_CORRECTED_SIGNED.PDF

INTERGOVERNMENTAL AGREEMENT
between the
THE CITY OF SCOTTSDALE
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
CONSTRUCTION, CONSTRUCTION MANAGEMENT, OPERATION & MAINTENANCE

of the
68% STREET STORM DRAIN

IGA FCD 2026A007
City of Scottsdale Contract Number 2026-035-COS

Agenda Item

This Intergovernmental Agreement IGA FCD 2026A007 (Agreement) is entered into by and between the City
of Scottsdale, an Arizona municipal corporation, acting by and through its City Council, 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 PROJECT PARTNERS.
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 and the Scottsdale City Charter Section 3-1 to enter into
this Agreement and has authorized the undersigned to execute this Agreement on behalf of the CITY.

BACKGROUND

3. The 68 Street Storm Drain project is a quarter mile of storm drain extension along 68* Street from
Monterosa Street to Roma Avenue (the PROJECT) and is located within the City of Scottsdale. The
PROJECT is intended to mitigate the flood hazards along 68" Street.

4. The area is part of the Lower Indian Bend Wash (LIBW) Area Drainage Master Study/Plan (ADMS/P),
a regional study sponsored by the Flood Control District of Maricopa County (FCDMC) which was
completed in December 2017. The ADMP report identified five regional drainage improvement areas and
eleven smaller localized drainage improvement areas. The subject storm drain extension is located in one
of the localized drainage improvement areas.

5. On May 23, 2018, the Board of Directors of the DISTRICT adopted Resolution FCD 2018R007 (C-69-
18-036-6-00), authorizing the DISTRICT to negotiate and prepare an Intergovernmental Agreement for
cost-sharing, design, rights-of-way acquisition, construction, construction management, and future

CITY OF SCOTTSDALE CONTRACT NUMBER 2026-035-COS

IGA FCD 2026A007 PCN 265.02.31 PAGE 1 OF 8

operation and maintenance of the PROJECT.

6. This Agreement is only for the construction, construction management, operation, and maintenance of the
PROJECT which will construct a quarter mile of storm drain along 68 Street from Monterosa Street to
Roma Avenue to reduce the flood hazard in the area by providing a 10-yr level of protection. The proposed
PROJECT elements are shown in Exhibit A, attached hereto and made a part hereof.

PURPOSE OF THE AGREEMENT

7. This Agreement identifies and defines the responsibilities of the DISTRICT and the CITY for PROJECT
activities related to construction, construction management, operation, and maintenance.

TERMS OF AGREEMENT
8. The PROJECT as referenced herein, is described in Paragraph 3 and 6 of this Agreement.

9. The PROJECT COST, as referenced herein, solely encompasses the following costs directly associated
with the PROJECT activities and incurred after the effective date of this Agreement and can include
appropriate retroactive tasks and related costs, which are: costs of construction, construction management,
material testing, post-design services and construction surveying support related to the PROJECT.

9.1 The PROJECT COST for this agreement is estimated to be $2,600,000. This amount is an estimate
based on the best information available at the time of this Agreement. Upon recognition of
anticipated costs above this estimated PROJECT COST, the PROJECT PARTNERS shall
communicate these anticipated increases and address them in the context of Paragraph 11.3.

10. The following are specifically excluded from the calculation of PROJECT COST:

10.1 Any costs associated with non-flood control features added to the construction at the CITY’s
request. Such costs shall be funded solely by the CITY.

10.2. The personnel and internal administrative costs associated with this PROJECT incurred by each
PROJECT PARTNER, including costs associated with the issuance of PROJECT permits, unless
specifically identified otherwise in this Agreement.

11. Not later than January Ist of each ‘year during the life of the Project, the CITY shall provide to the
DISTRICT a written estimate of the funds the CITY anticipates will be needed from the DISTRICT for
the next fiscal year and for each of the remaining fiscal years of the Project until said Project is completed.
The DISTRICT’S fiscal year commences on July 1 and ends on June 30 of the following calendar year. The
DISTRICT’S project funding is dependent on the availability of Capital Improvement Program (CIP)
funding. Depending on funding availability, the Parties may implement a payment plan by mutual
agreement.

11.1. The DISTRICT's fifty percent (50%) PROJECT COST share under this Agreement is estimated to
be $1,300,000, and is contingent on the availability of funding.

11.2 DISTRICT funding for its cost share of the project is contingent on funding availability for

construction and all related activities, with overall funding estimated at $1,300,000 distributed for
the DISTRICT fiscal year, as outlined in the table below:

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IGA FCD 2026A007 PON 265.02.31 PAGE 2 OF 8

Fiscal Year Not to Exceed

FY 2026 $300,000

FY 2027 $1,000,000

11.3 Funding increases may be negotiated and are subject to written approval from the DISTRICT,
contingent upon budget availability. DISTRICT funding for the PROJECT shall be from secondary
flood control tax levy revenue.

12. CITY funding for the PROJECT shall be from the CITY’s Capital Improvement Program (CIP) budget.
13. The CITY shall:
13.1. Fund 50% of the PROJECT COST, making the CITY’s estimated share $1,300,000.
13.2 Prior to the CITY beginning the contracting process for hiring a contractor for construction related
activities, coordinate with the DISTRICT to understand its funding capabilities and timing for

reimbursement of these PROJECT costs.

13.3 Beginning three months after the award of the construction contract, invoice the DISTRICT every
quarter for its share of the accrued contract costs to date as invoiced to the CITY by the contractor.

13.4 Serve as the lead agency for the PROJECT construction, construction management, material testing,
surveying, and post-design services.

13.4.1 If the construction management services are provided via CITY staff, then the construction
management cost shall be assigned a value not to exceed eight percent (8%) of the actual
construction cost.

13.5 Serve as the lead agency for any PROJECT public involvement activities.
13.6 Obtain DISTRICT review and concurrence on construction change orders.

13.7. Assure the safety and appropriateness of any non-flood control uses of the PROJECT prior to
offering to make or making the PROJECT available for such uses.

13.8 Obtain DISTRICT review and comments on the design and construction of any future modifications
to the PROJECT and resolve and incorporate the DISTRICT’s comments into these future
PROJECT modifications.

13.9 Invite the DISTRICT to all progress meetings and inspections.

13.10 Be responsible for all operations and maintenance of the PROJECT including the development of
an operation and maintenance plan to be shared with the DISTRICT.

13.10.1 The maintenance activities to be performed include, but are not limited to, maintaining the
flood control function of the PROJECT, including sediment and vegetation removal,
removal of trash and debris, electricity and other operation costs for the facilities, vandalism

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IGA FCD 2026A007 PCN 265.02.31 PAGE 3 OF 8

13.10.2

13.10.3

13.10.4

repair and replacement, and structural repair and replacement of the flood control
structures.

Schedule, 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 corrective action and the
CITY shall reimburse the DISTRICT for the total costs incurred by the DISTRICT within
thirty-30 calendar days of receipt of an invoice from the DISTRICT.

On an annual basis, commencing on the first anniversary date of the completion and
acceptance of the PROJECT, 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 and to ensure proper hydraulic function.

Have the right, when approved by the other PROJECT PARTNER in writing 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. The DISTRICT shall:

14.1. Fund fifty (60%) of the PROJECT COST, making the DISTRICT?s estimated share $1,300,000.

14.2 Subject to the availability of funding, within 30 calendar days of receipt, pay approved invoices issued
by the CITY in accordance with the terms of this Agreement.

14.3 Participate in PROJECT public involvement activities.

14.4 Participate in a final inspection of the PROJECT with the CITY.

14.5 Participate, as desired by the DISTRICT, with the CITY in an annual inspection of the PROJECT.

14.6 Provide review and comments on post-design or post-construction changes or modifications to the
PROJECT that may affect the hydraulic function of the PROJECT

15. Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:

15.1 Comply with A.R.S. Sections 41-4401 and 23-214(A).

15.1.1

15.1.2

Each party to this Agreement retains the legal right to inspect the records of the CITY’s and
any contractors’ or subcontractors’ employees performing work under this Agreement to
verify compliance with Title 34 of the Arizona Revised Statutes, as well as A.R.S. Sections
41-4401 (as applicable) and 23-214(A).

Failure by either party to this Agreement to comply with Title 34 of the Arizona Revised
statutes, A.R.S. Section 41-4401, or A.R.S. Section 23-214(A) shall be deemed a breach of
this Agreement and is subject to penalties up to and including termination of the Agreement.

15.2 Require that any contractor selected for the PROJECT:

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IGA FCD 2026A007

PON 265.02.31 PAGE 4 OF 8

15.2.1 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).

15.2.2 Agree that a breach of the warranty under paragraph 15.2.1 shall be deemed a material
breach of contract and is subject to penalties up to and including termination of the contract.

15.2.3 Agree that the PROJECT PARTNERS retain 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 15.2.1.

15.2.4 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.

15.2.5 Warrant and certify that it does not currently, and agrees for the duration of the contract
that it will not, use:

The forced labor of ethnic Uyghurs in the People’s Republic of China.

Any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China.

Any contractors, subcontractors, or suppliers that use the forced labor or any goods or
services produced by the forced labor of ethnic Uyghurs in the People’s Republic of China.

If the Contractor becomes aware during the term of the Agreement that the Contractor is
not in compliance with this paragraph, the Contractor shall notify the County within five (5)
business days after becoming aware of the noncompliance. Failure of the Contractor to
provide a written certification that the Contractor has remedied the noncompliance within
one hundred eighty (180) days after notifying the public entity of its noncompliance shall
result in the termination of this Agreement unless the Term of this Agreement shall end
prior to said one hundred eighty (180) day period.

15.3. Use their best efforts and entér into good faith negotiations to resolve any disputed items of this
Agreement. However, this shall not limit the rights of the PROJECT PARTNERS to seek any
remedies provided by law.

15.4 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.

15.5 Equally share the cost of PROJECT compliance and cost of 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 the audit findings by the PROJECT PARTNERS.

IGA FCD 2026A007 PCN 265.02.31 PAGE 5 OF 8

16.

17.

18.

19.

20.

21.

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 any PROJECT PARTNER offer to make the
PROJECT available for any non-flood control uses, the offering PROJECT PARTNER shall, to the extent
permissible by law, indemnify, defend and save harmless the DISTRICT, including agents, officers,
directors, governors and employees thereof, from any and all loss or expense incurred as a result of any
claim or suit without limitation related solely to the non-flood control use of the PROJECT or portions of
the PROJECT. Such indemnification obligation is intended to be a specific indemnity obligation rather
than the general indemnity obligations set forth in this paragraph regarding all other types of claims or suits
and shall include the obligation to provide reasonable attorneys’ fees, court costs, and other expenses
relating to the defense of such claims or litigation related solely to the non-flood control use of the
PROJECT or portions of the PROJECT. This paragraph shall survive the completion and/or termination
of this Agreement.

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
Chief Engineer and General Manager

2801 West Durango Street

Phoenix, AZ 85009-6399

City of Scottsdale

City Manager

7447 E. Indian School Rd., Suite # 300
Scottsdale, AZ 85251 j

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.

This Agreement is subject to cancellation by any party pursuant to the provisions of A.R.S. Section 38-511.
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.

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.

CITY OF SCOTTSDALE CONTRACT NUMBER 2026-035-COS

IGA FCD 2026A007 PCN 265.02.31 PAGE 6 OF 8

FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State of Arizona

Recommended by:

Paul Baughman, P.E., CFM Date
Chief Engineer & General Manager

Approved and Accepted:
By:
Chair, Board of Directors Date
Attest:
By:
Clerk of the Board Date

The foregoing Intergovernmental Agreement IGA FCD 2026A007 has been reviewed pursuant to A.RS.
Section 11952, 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

CITY OF SCOTTSDALE CONTRACT NUMBER 2026-035-COS

IGA FCD 2026A007 PCN 265.02.31 PAGE 7 OF 8

CITY OF SCOTTSDALE
A Municipal Corporation,

by 3{97 ody,

Lisa Borowsky, Mayor Date
Attest:
 Bondene, 3107/3004
. Ben Lane, City Clerk Date

The foregoing Intergovernmental Agreement IGA FCD 2026A007 has been reviewed pursuant to Arizona
Revised Statutes 11-952, as amended, by the undersigned attorney who has determined that it is in proper form
and within the power and authority granted to the City of Scottsdale under the laws of the State of Arizona.

OFFICE OF THE CITY ATTORNEY

wy: [due Paul B/to [26
Luis Santaella, Interim City Attorney “Date

By: Karen Tyler, Principal Assistant
City Attorney

CITY OF SCOTTSDALE CONTRACT NUMBER 2026-035-COS

IGA FCD 2026A007 PCN 265.02.31

PAGE 8 OF 8

IGA FCD 2026A007
EXHIBIT A

68" Street Storm Drain extension from Monterosa Street to Roma Avenue

CAMELBACK ROAD

ROMA AVENUE

—

r
a
MONTECITO AVENUE

NEW 68TH STREET
STORM DRAIN

EXETER BOULEVARD

NEW 30" STORM DRAIN

1 | tAFaverte BOULEVARD

”
Z

+
CONNECT TO EXIST.
_ STORM DRAIN

4
Zar
on

CITY OF SCOTTSDALE CONTRACT NUMBER 2026-035-COS

IGA FCD 20264007 PCN 265.02.31 PAGE 1 OF 1