C25-0071 - FLOOD CONTROL DISTRICT OF MARICOPA COUNTY - CONTRACT - SIGNED.PDF
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INTERGOVERNMENTAL AGREEMENT
between
THE CITY OF GLENDALE
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
CONSTRUCTION, CONSTRUCTION MANAGEMENT, OPERATION & MAINTENANCE
of the
Bethany Home Road Storm Drain 43rd to 51st Avenue
IGA FCD 2024A011
Agenda Item _____________________
This Intergovernmental Agreement IGA FCD 2024A011 (Agreement) is entered into by and between the City
of Glendale, 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 (the
EFFECTIVE DATE).
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(A) to enter into this Agreement and has authorized the
undersigned to execute this Agreement on behalf of the CITY.
BACKGROUND
3.
City of Glendale (COG) contracted with Gavan & Barker, Inc. for the 51st Avenue and Bethany Home
Road Drainage Study, October 2019. This study supports the two phased approach, demonstrating that
constructing improvements upstream of the intersection of Grand Avenue/Bethany Home Road/51st
Avenue (INTERSECTION) will mitigate not only serious flooding issues in the upstream area, but will
also significantly decrease the cost of the Phase II improvements (Bethany Home Road Storm Drain 58th
Avenue to 79th Avenue).
4.
The Bethany Home Road Storm Drain 43rd to 51st Avenue (the PROJECT) will construct several storm
drain systems between 51st Avenue and 43rd Avenue, and from Glendale Avenue to Grand Avenue in an
effort to intercept and detain runoff within the PROJECT area as well as at the INTERSECTION. The
storm drains will discharge into existing basins. See attached Exhibit A for details of the proposed system.
C25-0071
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5. Drainage along Bethany Home to the west of Grand Avenue will be managed through other
projects.
6. On October 7, 2020, the Board of Directors of the DISTRICT adopted Resolution FCD 98-12B (C-69-
99-036-6-002) authorizing the DISTRICT to cost-share in the PROJECT, and to negotiate
Intergovernmental Agreements for the design, rights-of-way acquisition, construction, construction
management, and operation and maintenance of the PROJECT.
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 & maintenance.
TERMS OF AGREEMENT
8. The PROJECT, as referenced herein, is defined by paragraph 4 of this Agreement.
9. The PROJECT COST, as defined in this Section, solely encompasses the following costs directly associated
with the PROJECT activities 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 $21,660,000. 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.
9.2
Project costs and budget limitations will require that the PROJECT be implemented in multiple
phases utilizing multiple contracts. It is anticipated that at least three phases will be required as
depicted in Exhibit A.
9.3 CITY invoices to the DISTRICT, and DISTRICT payment of those invoices for the multiple
contracts will be in accordance with Paragraphs 11.2 and 14.3.
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 1st 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 the 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.
11.1 The DISTRICT's total PROJECT funding under this IGA is estimated to be $14,079,000.
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11.2 DISTRICT funding for its cost share of the entire PROJECT is contingent on funding availability
for construction and all related activities, with an overall funding limit of $14,441,000 distributed for the
DISTRICT fiscal year, as outlined in the table below:
Fiscal Year
Not to Exceed
FY 2025
$6,127,000
FY 2026
$3,640,000
FY 2027
$2,560,000
FY 2028
$2,114,000
11.3 Funding increases may be negotiated and are subject to written approval from the DISTRICT,
contingent upon budget availability.
12. 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 is contingent upon funding availability within the City’s CIP.
14. The CITY shall:
14.1 Fund thirty-five percent (35%) of the PROJECT COST, making the CITY’s estimated share
$7,581,000.
14.2 Pursuant to the terms of the DESIGN IGA, the CITY hired a consultant for design related activities,
which said design is at 90% completion. The City will continue to coordinate with the DISTRICT
to understand its funding capabilities and timing for reimbursement of these PROJECT COSTS.
14.3 Beginning three (3) months after the award of a construction contract to a Contractor, the CITY will
invoice the DISTRICT every quarter for its share of the incurred PROJECT 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
PROJECT COSTS.
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.
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14.8 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.
14.9 Invite the DISTRICT to all progress meetings and inspections.
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 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, vandalism repair and replacement, structural repair
and replacement of the flood control structures, and other operation activities and costs
related to the PROJECT.
14.10.2 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 thirty (30) calendar days. If the CITY determines that
additional time is required to correct such deficiencies, the thirty (30) day period may be
mutually extended, upon DISTRICT’S consent, which may not be unreasonably withheld.
If the CITY has not taken corrective action, or requested an extension, 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.
14.10.3 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.
15. The DISTRICT shall:
15.1 Fund sixty-five percent (65%) of the PROJECT COST, making the DISTRICT’s estimated share
$14,079,000.
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.
16. Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:
16.1 Comply with A.R.S. Sections 41-4401 and 23-214(A).
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16.1.1 Each party to this Agreement retains the legal right to inspect the records of the PROJECT
PARTNERS’ 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).
16.1.2 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 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).
16.2.2 Agree that a breach of the warranty under paragraph 17.2.1 shall be deemed a material
breach of contract and is subject to penalties up to and including termination of the contract.
16.2.3 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 17.2.1.
16.2.4 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.
16.2.5 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.
16.2.6 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.
16.3 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.
16.4 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.
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16.5 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.
16.6 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 the audit findings by the PROJECT PARTNERS.
17. The PROJECT may be phased due to funding or other coordination issues. Responsibilities of the
DISTRICT and the CITY shall be phased accordingly, including, but not limited to, invoicing,
reimbursements, and transfer of land rights.
18. 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.
19. 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/General Manager
2801 West Durango Street
Phoenix, AZ 85009-6399
City of Glendale
Kevin R. Phelps, City Manager
5850 W Glendale Avenue
Glendale, AZ 8530
20. 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
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Agreement may be amended or terminated. The operation, maintenance, and indemnification provisions,
of this Agreement, shall survive the expiration of this Agreement.
21. This Agreement is subject to cancellation by any party pursuant to the provisions of Arizona Revised
Statutes 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 parties 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.
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FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
Paul Baughman, Chief Engineer/General Manager
Date
Approved and Accepted:
By:
Chairman, Board of Directors
Date
Attest:
By:
Clerk of the Board Date
The foregoing Intergovernmental Agreement IGA FCD 2024A011 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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2/12/2025
2/12/2025
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CITY OF GLENDALE
A Municipal Corporation,
By:
Kevin R. Phelps, City Manager
Date
Attest:
By:
Julie K. Bower, City Clerk
Date
The foregoing Intergovernmental Agreement IGA FCD 2024A011 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 Glendale under the laws of the State of Arizona.
By:
Michael D. Bailey, City Attorney
Date
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1/29/2025
1/29/2025
1/29/2025
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EXHIBIT “A”
Project Site Map
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