2026A003- IGA-FOUNTAIN HILLS SPAP FY26 SPAP 699.26.30.DOC
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IGA FCD 2026A003
PCN 699.26.30
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Intergovernmental Agreement
for the
Design, Rights-of-Way Acquisition, Utility Relocations, Construction,
Construction Management and Operation and Maintenance
of the
Love Court Storm Water Pipe Improvement Project
between the
Town of Fountain Hills
and the
Flood Control District of Maricopa County
IGA FCD 2026A003
Agenda Item _____________________
This Intergovernmental Agreement (this “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 (the “DISTRICT”), and
the Town of Fountain Hills, a municipal corporation, acting by and through its Mayor
and TOWN Council, (the “TOWN”). The TOWN and the District are collectively
referred to as the PROJECT PARTNERS and as a PROJECT PARTNER.
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.) § 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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2.
The TOWN is empowered by A.R.S. § 9-240(B) and A.R.S. §11-952, as amended, to
enter into this Agreement and has authorized the undersigned to execute this
Agreement on behalf of the TOWN.
BACKGROUND
3.
On October 19, 2022 the Board of Directors of the DISTRICT (the Board) adopted
Resolution FCD 2022R003 (C-69-23-013-X-00) authorizing the DISTRICT to cost-
share in projects recommended under the DISTRICT’s Small Project Assistance
Program.
4.
Under the DISTRICT’s Small Project Assistance Program for Fiscal Year 2026,
the TOWN proposed the Love Court Storm Water Pipe Improvement Project (the
“PROJECT”) to provide the following benefits:
4.1
Reduce the flood hazard to properties that have experienced historic
flooding.
5.
The PROJECT has been recommended by DISTRICT staff for the Fiscal Year
2026 program.
PURPOSE OF THE AGREEMENT
6.
The purpose of this Agreement is to identify and define the responsibilities of the
DISTRICT and the TOWN for the design, rights-of-way acquisition, utility
relocations, construction, construction management, and operation and
maintenance of the PROJECT.
TERMS OF AGREEMENT
7.
The PROJECT shall mean the features required to accomplish the benefits
enumerated in paragraph 4 of this Agreement. Features of the PROJECT, as
envisioned at the time of this Agreement, are represented in Exhibit A but are
subject to change without amendment to this Agreement.
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8.
PROJECT DESIGN AND CONSTRUCTION COST shall mean the actual amount of
money required to complete the flood control features of the PROJECT that are
completed and invoiced by the TOWN to the DISTRICT between July 1, 2025 and
June 30, 2027.
8.1
The following costs are expressly excluded from the PROJECT DESIGN AND
CONSTRUCTION COST shared under this Agreement:
8.1.1
Costs
associated
with
rights-of-way
acquisition,
permitting,
construction management (including materials testing and survey
work), operations and maintenance.
8.1.2
Costs associated with multi-use, landscaping or aesthetic features.
8.1.3
Costs associated with utility conflicts and utility relocations.
8.2
The PROJECT DESIGN AND CONSTRUCTION COST is estimated to be
$145,000, but is subject to change without amendment to this Agreement.
9.
The DISTRICT shall:
9.1
Fund seventy-five percent (75%) of the PROJECT DESIGN AND
CONSTRUCTION COST incurred and invoiced between July 1, 2025 and
June 30, 2027, with the funding from the DISTRICT limited to a maximum of
$1,000,000 in accordance with the DISTRICT’s Small Project Assistance
Program. The DISTRICT’s current estimated funding share is $108,750.
DISTRICT funds will be from the DISTRICT’s secondary tax levy revenues
and DISTRICT funding shall be contingent upon the availability of DISTRICT
Capital Improvement Program Budget funding. This term shall not be
amended.
9.2
Reimburse the TOWN per the terms of this Agreement within thirty (30)
days of receipt of an approvable invoice from the TOWN for its share of the
PROJECT DESIGN AND CONSTRUCTION COST.
9.3
Participate in a final inspection of the completed PROJECT with the TOWN.
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10. The TOWN shall:
10.1 Fund the full PROJECT DESIGN AND CONSTRUCTION COSTS not
reimbursed by the DISTRICT, making the TOWN’s estimated PROJECT
DESIGN AND CONSTRUCTION COST share $36,250 and TOWN will fully
fund all PROJECT costs for any work completed and invoiced before July 1,
2025 or after June 30, 2027.
10.2 Fully and solely pay any payment required that does not fall within the
definition of PROJECT DESIGN OR CONSTRUCTION COST.
10.3 Serve as the lead agency for all aspects of PROJECT implementation.
10.4 Invoice the DISTRICT as follows:
10.4.1 Within thirty (30) days of award of a PROJECT construction contract
for one-half (1/2) of its share of the PROJECT DESIGN AND
CONSTRUCTION COSTS.
10.4.2 Within thirty (30) days of completion of construction of the PROJECT,
but no later than June 30, 2027, prepare a final accounting including
change order costs not previously paid, and invoice the DISTRICT for
the remainder of its share of the PROJECT DESIGN AND
CONSTRUCTION COST incurred, if any, to date.
10.5 Reimburse the DISTRICT for any previous over-payments.
10.6 Design the PROJECT, provide PROJECT plans and specifications to the
DISTRICT (including interim submittals as appropriate) for review and
comment. The DISTRICT shall provide, within three (3) weeks of receipt of
the plans and specifications from the TOWN, comments on the plans and
specifications, if any. The TOWN shall incorporate the comments provided
by the DISTRICT into the PROJECT as appropriate.
10.7 Coordinate and staff any necessary public involvement activities related to
the PROJECT.
10.8 Obtain all permits required for the PROJECT.
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10.9 Obtain rights-of-way required for the PROJECT.
10.10
Relocate conflicting utilities.
10.11
Construct the PROJECT, provide construction management (including
materials testing and survey work), and provide any proposed construction
change orders to the DISTRICT for concurrence.
10.12
Coordinate a final inspection of the completed PROJECT with the
DISTRICT.
10.13
Own the completed PROJECT and be responsible for operation and
maintenance of the completed PROJECT. 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 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. The TOWN may delegate this responsibility to a third
party but will remain ultimately accountable to the DISTRICT under this
Agreement.
10.14
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 Town of
Carefree over the past year in accordance with the project design intent and
to ensure proper hydraulic function.
10.15
Require that any contractor selected for the PROJECT:
10.15.1 Warrant its compliance with all federal immigration laws and
regulations that relate to its employees and their compliance with
A.R.S. § 23-214(A).
10.15.2 Warrant and certify that it does not currently, and agrees for the
duration of the contract that it will not, use:
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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 TOWN becomes aware during the term of the Agreement that
any Contractor is not in compliance with this paragraph, the TOWN
shall notify the DISTRICT within five business days after becoming
aware of the noncompliance. Failure of TOWN to provide a written
certification that the appropriate contractor has remedied the
noncompliance within one hundred eighty (180) days after notifying
the public entity of its noncompliance, this Agreement shall
terminate unless the Term of this Agreement shall end prior to said
one hundred eighty (180) day period. Warrant its compliance with all
federal immigration laws and regulations that relate to its employees
and their compliance with A.R.S. § 23-214(A);
10.15.3
Agree that a breach of the warranty under paragraph 10.15.1
shall be deemed a material breach of contract and is subject to
penalties up to and including termination of the contract;
10.15.4
Agree that the DISTRICT 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 10.15.1;
11. Any local permits required for the PROJECT that are issued by either PROJECT
PARTNER shall be issued at no cost to the PROJECT.
12. Either PROJECT PARTNER may, with mutual written agreement of all PROJECT
PARTNERS, delegate responsibilities to another party. Any delegation, however,
shall not relieve the delegating PROJECT PARTNER of its original responsibilities
as defined herein.
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13. Each PROJECT PARTNER certifies that it has disclosed to the other PROJECT
PARTNER any known ongoing or anticipated litigation (to which it is a party)
related to the PROJECT or PROJECT-affiliated flooding hazards, and shall
continue to make such disclosures through the duration of this Agreement.
14. In the case of any dispute over any items in this Agreement, the PROJECT
PARTNERS 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.
15. Each PROJECT PARTNER shall 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.
16. The PROJECT PARTNERS agree to equally share the cost of a 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 on contract to the DISTRICT and agreeable to 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 by all PROJECT PARTNERS of the audit report.
17. Each PROJECT PARTNER (indemnitor) shall, to the extent permissible by law,
indemnify, defend and save harmless the others (indemnitees) including agents,
officers, directors, governors and employees thereof, from and against any loss or
expense incurred as a result of any claim or suit of any nature whatsoever, which
arises out of indemnitor’s negligent or wrongful acts or omissions pursuant to
this Agreement. The TOWN shall further, to the extent permissible by law,
indemnify, defend and save harmless the DISTRICT including agents, officers,
directors, governors and employees thereof, from and against any loss or
expense incurred as a result of any claim or suit of any nature whatsoever, which
arises out of recreational use of the PROJECT in the event that it elects to invite
such use (with or without DISTRICT concurrence). Such indemnification
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obligations shall encompass any personal injury, death or property damages
resulting from the indemnitor’s negligent or wrongful acts or omissions, as well
as reasonable attorney fees, court costs, and other expenses relating to the
defense against claims or litigation, incurred by the indemnitee. Indemnitee shall
be liable for its own negligence or wrongful acts as provided by law.
18. Each PROJECT PARTNER
18.1 Shall comply with A.R.S. §§ 41-4401 and 23-214(A). Failure by either
PROJECT PARTNER to comply with A.R.S. §§ 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.
18.2 Retains the legal right to inspect the records of the other PROJECT
PARTNER’s and any contractors’ or subcontractors’ employees performing
work under this Agreement to verify compliance with A.R.S. §§ 41-4401 and
23-214(A).
19. All notices or demands upon any PROJECT PARTNER shall be in writing and shall
be delivered in person, by express delivery service for which a receipt is obtained
or sent by mail addressed as follows:
Flood Control District of Maricopa CountyTown of Fountain Hills
Chief Engineer and General Manager
Town Manager
2801 West Durango Street
16705 E. Ave. of the Fountains
Phoenix, Arizona 85009-6399
Fountain Hills, AZ 85268
20. This Agreement shall expire either (a) June 30, 2027, or (b) upon both completion
of the PROJECT and satisfaction of all funding obligations and reimbursements
associated with this Agreement, whichever is the first to occur. However, by
mutual written agreement of all PROJECT PARTNERS, this Agreement may be
amended or terminated except as expressly stated in this Agreement. The
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operation and maintenance and indemnification provisions of this Agreement
shall survive the expiration of this Agreement.
21. This Agreement is subject to the provisions of A.R.S. § 38-511.
22. Attached to this Agreement or contained herein are the written determinations by
the appropriate attorneys for the PROJECT PARTNERS, 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.
23. 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 either PROJECT PARTNER.
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FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
Chief Engineer and General Manager
Date
Approved and Accepted:
By:
Chair, Board of Directors
Date
Attest:
By:
Clerk of the Board
Date
The foregoing Intergovernmental Agreement FCD 2026A003 has been reviewed
pursuant to A.R.S. Section 11-952, as amended, by the undersigned General Counsel,
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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.
General Counsel
Date
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TOWN OF FOUNTAIN HILLS
A Municipal Corporation
Approved and Accepted By:
Town Manager
Date
Attest:
By:
Town Clerk
Date
The foregoing Intergovernmental Agreement FCD 2026A003 has been reviewed
pursuant to A.R.S. 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 Town of Fountain Hills under the laws of the State of Arizona.
Town Attorney
Date
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Exhibit A: Love Court Storm Water Pipe Improvement
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Not to Scale