ELLIOT RD CONSTRUCTION IGA WITH SIGNATURE.PDF

INTERGOVERNMENTAL AGREEMENT
between

THE CITY OF MESA
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
CONSTRUCTION, CONSTRUCTION MANAGEMENT, OPERATION & MAINTENANCE
of the
ELLIOT ROAD FROM EAST MARICOPA FLOODWAY TO ELLSWORTH ROAD DRAINAGE
IMPROVEMENTS
IGA FCD 2025A007

Agenda Item

This Intergovernmental Agreement IGA FCD 2025A007 (Agreement) is entered into by and between the
City of Mesa, a municipal corporation, acting by and through its City Council and City Manager, 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 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. § 48-572 and Section 103 of the Mesa City Charter to enter into this

Agreement and has by resolution authorized the undersigned to execute this Agreement on behalf of the
CITY.

BACKGROUND

3. Elliot Road Drainage Improvements are from the East Maricopa Floodway (EMF) to Hawes Road (the
PROJECT), a developed urban area within the City of Mesa (the CITY). The PROJECT is intended to
mitigate excess stormwater runoff that impacts existing and proposed residences and businesses by using
new storm drains and other drainage features to convey stormwater to the EMF.

4. The proposed improvements were studied as part of the East Mesa Area Drainage Master Plan Update
(the PLAN) prepared in November 2013. The PLAN provided solutions to mitigate the flood hazards in
the area including the drainage improvements along Elliot Road from East Maricopa Floodway to Hawes
Road.

5. On January 10, 2024, the Board of Directors of the DISTRICT adopted Resolution FCD 2023R004 (C
69-24-042-X-00), authorizing the DISTRICT to negotiate and prepare an Intergovernmental Agreement

IGA FCD 2025A007 PCN 442.04.30 PAGE | OF 10

for the cost sharing, rights-of-way acquisition, design, construction, construction management and future
operation and maintenance of the PROJECT.

6. On October 23, 2024, the PROJECT PARTNERS executed IGA FCD 2024A002 (C-69-25-009-X-00)
for the design, right-of-way acquisition, and utility relocations necessary for the construction of the
PROJECT.

7. This Agreement is for the construction, construction management, operation, and maintenance of the
PROJECT, which will consist of storm drains and other conveyance improvements in the vicinity of
EMF to Hawes Road in Mesa to mitigate flooding caused by the 10-year event. The proposed PROJECT
elements are shown on Exhibit A, attached hereto and made a part hereof.

PURPOSE OF THE AGREEMENT

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

TERMS OF AGREEMENT
9. The PROJECT, as referenced herein, is defined by paragraph 3 of this Agreement.

10, 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.

10.1. The PROJECT COST for this Agreement is estimated to be $8,000,000. 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 12.3.

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

11.1. 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.

11.2 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.

12. 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 County fiscal year commences on July 1 and ends on June 30 of the following calendar
year. The DISTRICT'S funding as shown in the table below is dependent on the availability of funding.
The CITY should use these DISTRICT funding figures to derive its cash flow for the PROJECT.
Depending on funding availability, the Parties may implement a payment plan by mutual agreement.

12.1. The DISTRICT's total PROJECT funding under this IGA shall not exceed $4,000,000.

IGA FCD 2025A007 PCN 442.04.30 PAGE 2 OF 10

12.2. DISTRICT funding under this IGA is contingent on availability and is currently distributed by
fiscal year, as outlined in the table below:

Fiscal Year Not to Exceed

FY 2026 $2,000,000

FY 2027 $2,000,000

12.3 Funding increases and yearly distribution changes 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 and is contingent upon funding
availability within the DISTRICT’s Capital Improvement Program.

13. CITY funding for the PROJECT shall be from the CITY’s Capital Improvement Program (CIP) budget
and 3+ party funds.

14. The CITY shall:
14.1. Fund 50% of the PROJECT COST, making the CITY’s estimated share $4,000,000.
14.2 Prior to the CITY beginning the contracting process for hiting a contractor for construction
related activities, coordinate with the DISTRICT to understand its funding capabilities and timing

for reimbursement of these PROJECT costs.

14.3. Beginning three months after the award of the construction contract invoice the DISTRICT every
quarter for its share of the earned contract costs to date as invoiced to the CITY by the Contractor.

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

14.4.1 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.

14.5 Serve as the lead agency for any PROJECT public involvement activities.

14.6 Obtain DISTRICT review and concurrence on construction change orders.

14.7 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.

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

14.9 Invite the DISTRICT to all progress meetings and inspections.

IGA FCD 2025A007 PCN 442.04.30 PAGE 3 OF 10

14.10 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.

14.10.1

14.10.2

14,10.3

14.10.4

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 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
cortective action within this time, the DISTRICT reserves the right to perform the
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.

15. The DISTRICT shall:

15.1 Fund 50% of the PROJECT COST, making the DISTRICT’s estimated share $4,000,000.

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

15.3 Participate in PROJECT public involvement activities.

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

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

15.6 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. The DISTRICT will retain
permitting authority for any modifications or changes that could impact the PROJECTS outfall
connection to the EMF.

16, Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:

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

16.1.1

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

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PCN 442.04.30 PAGE 4 OF 10

16.1.2

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.

16.2 Require that any contractor selected for the PROJECT:

16.2.1

16.2.2

16.2.3

16.2.4

16.2.5

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).

Agree that a breach of the warranty under paragraph 16.2.1 shall be deemed a material
breach of contract and is subject to penalties up to and including termination of the
contract.

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 16.2.1.

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.

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
ptior to said one hundred eighty (180) day period.

16.3 Use their best efforts and enter 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.

16.4 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

IGA FCD 20254007

PCN 442.04,30 PAGE 5 OF 10

17.

18.

19,

20.

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.

16.5 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.

The PROJECT may be phased due to funding or other coordination issues. Responsibilitics of the
DISTRICT and the CITY shall be phased accordingly, including, but not limited to, invoicing,
reimbursements, and transfer of land rights.

Each party to this Agreement shall, as “Indemnitor,” to the extent permissible by law, indemnify, defend
and hold harmless the other PROJECT PARTNER (“Indemnitec”) 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 hatmless 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:

City of Mesa Flood Control District of Maricopa County
City Manager Chief Engineer and General Manager

PO Box 1466 2801 West Durango Street

Mesa, Arizona 85211-1466 Phoenix, AZ 85009-6399

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.

IGA FCD 2025A007 PCN 442.04.30 PAGE 6 OF 10

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

22. 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.

23. 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 patties agree that this Agreement shall be
renegotiated at the written request of any party, subject to any additional authorization required by the
DISTRICT’s Board of Directors or the CITY’s City Council.

IGA FCD 20254007 PCN 442.04.30 PAGE 7 OF 10

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

Recommended by:

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

Approved and Accepted:

By:

Chairman, Board of Directors Date

Attest:

By:

Clerk of the Boatd Date

The foregoing Intergovernmental Agreement IGA FCD 2025A007 has been reviewed pursuant to Arizona
Revised Statutes 11-952, as amended, by the undersigned General Counsel, who has determined that it is 1n
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 2028A007 PCN 442.0430 PAGE 8 OF 10

CITY OF MESA
A Municipal Corporation,

By:
Scott Butler, City Manager

Attest:

fatty rele, po[repes

” Golly Moseleff City Clerk

The foregoing Intergovernmental Agreement IGA FCD 2025A007 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 Mesa under the laws of the State of Arizona

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY

wn LAL be asp

Jim Smith
City Attorney

Date

IGA FCD 2025A007

PCN 442.04.30 PAGE 9 OF 10

IGA FCD 2025A007

EXHIBIT “A”

Elliot Road from East Maricopa Floodway to Ellsworth Road*

tederal Aid No. MES-O290 | MAG ALCP Mo, ACLILE-16-02-4

j a.
mesaaz

Pretec Kick of Meeting oA

ae DiDeLt

aoe [|e [rename | fms

*Approximate Locations

IGA FCD 2025A007

PCN 442.04.30

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