IGA - 75TH & GOLDEN-2024A009.PDF

INTERGOVERNMENTAL AGREEMENT
between the
City of Peoria
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY

DESIGN, RIGHTS-OF-WAY ACQUISITION, AND UTILITY RELOCATIONS

of
Grand Avenue, Olive Avenue, & 75% Avenue Regional Drainage Improvements
IGA FCD 20244009 -

Agenda Item

This Intergovernmental Agreement (Agreement) is entered into by and between the City of Peoria, 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 to enter into this
Agteement and has authorized the undetsigned 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. The Grand Avenue, Olive Avenue, and 75th Avenue Regional Drainage Improvements (the PROJECT) is
located within the City of Peoria. The PROJECT is intended to mitigate the flood hazards in the southwest
corner of the intersection of Grand Avenue, Olive Avenue, and 75th Avenue.

4. The area was the subject of the Glendale/Peoria Area Drainage Master Plan (GPADMP) prepared in
November 2011. The GPADMP was used as the basis for the Peoria Storm Drain Master Plan prepared
in 2014 which took a closet look at the existing storm drain system and made improvement
recommendations to mitigate the flood hazards in the southwest cornet of the intersection of Grand
Avenue, Olive Avenue, and 75th Avenue.

5. On May 22, 2024, the Board of Directors of the DISTRICT adopted Resolution FCD 2024R003 (C-69-
24-071-X-00), authorizing the DISTRICT to negotiate and prepare an Intergovernmental Agreement for
the cost-sharing, design, right-of-way acquisition, and utility relocations of the PROJECT.

6. This Agreement is for the Design, Rights-of Way Acquisition, and Utility Relocations of the PROJECT
which will consist of constructing a new detention basin on the southwest corner of Olive Avenue and 75%
Avenue, and associated storm drains to reduce the flood hazard in the atea by providing a 100-yr level of

IGA FCD 20244009 : PCN 620.03.36 PAGE 1 OF.10_

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10.

11.

12.

protection. The proposed PROJECT elements ate shown on Exhibit A, attached hereto and made a part
hereof.

An additional Intergovernmental Agreement will need to be entered into for the roles, responsibilities and
cost-share funding for construction, construction management, and operation & maintenance of the
PROJECT.

PURPOSE OF THE AGREEMENT

This Agreement identifies and defines the responsibilities of the DISTRICT and the CITY for PROJECT
activities related to Design, Rights-of-Way Acquisition, and Utility Relocations for the PROJECT.

TERMS OF AGREEMENT
The PROJECT as referenced herein, is described in Section 3 of this Agreement.

The PROJECT design cost, as referenced herein, solely encompasses the following costs directly associated
with the PROJECT, unless noted otherwise below:

10.1 The PROJECT COST for design, rights-of-way acquisition, and utility relocation costs is estimated
to be $4,500,000. This amount is an estimate based on the best information available at the time of
this Agreement. Upon recognition of anticipated cost above this estimated PROJECT design cost,
the PROJECT PARTNERS shall communicate these anticipated increases and address them in the
context of Paragraph 12.3.

10.2 Development of the final design and preparation of construction documents.
10.3 Acquisition of fee simple rights-of-way and/or drainage easements required for the PROJECT.

10.4 Relocation of conflicting utilities with prior rights, together with associated costs. Utilities in place
without prior rights will be relocated at their owners’ expense.

10.5 Obtaining United States Army Corps of Engineers Section 404 Permits for the PROJECT, and costs
associated with the mitigation efforts required by this permit process.

10.6 Each PROJECT PARTNER shall pay for, and not seek reimbursement for, its own personnel and
internal administrative costs associated with this PROJECT, including costs associated with the
issuance of any PROJECT permits related to this PROJECT, unless specifically identified otherwise
in this Agreement.

The CITY shall be solely responsible for any costs that are not needed for the flood control features of the
PROJECT, including but not limited to all costs associated with any fee simple estate rights-of-way and/or
easements acquired at the CITY’s request for non-flood control purposes.

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 temaining 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
yeat. 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.

IGA FCD 20244009 PCN 620.03.36 PAGE 2 OF 10

12.1 The DISTRICT's sixty-five percent (65%) PROJECT COST share under this Agreement is
estimated to be $2,925,000, and is contingent on the availability of funding.

12.2 DISTRICT total funding availability for all activities including design, rights-of-way, utility
relocations, construction, and construction management, etc. for the entire PROJECT is contingent
on funding availability, with an overall PROJECT funding limit of $5,005,000 distributed for each
DISTRICT fiscal year, as outlined in the table below:

Fiscal Year INot to Exceed
FY 2025 $0.0

' FY 2026 $455,000
IFY 2027 $4,550,000

12.3 Funding increases may be negotiated and are subject to written approval from the DISTRICT,
contingent upon budget availability.

13. DISTRICT funding for this PROJECT shall be from secondary flood control tax levy revenue and is
contingent upon funding availability within the DISTRICT’s Capital Improvement Program.

14. CITY funding for the PROJECT shall be from the CITY’s Capital Improvement Program (CIP) budget.
15. The CITY shall:

15.1 Plan and design the PROJECT to meet the recurrence interval of the 100-year flood as determined
by generally applied technical data and methodology in use at the time of PROJECT design, and this
level of protection is specifically approved by the Board of Directors of the Flood Control District
of Maricopa County.

15.2 Prior to the CITY beginning the contracting process for hiring a consultant for design related
activities, coordinate with the DISTRICT to understand its funding capabilities and timing for
reimbursement of these PROJECT costs.

15.3 Fund thirty-five (35%) of the PROJECT COST, making the CITY’s estimated share $1,575,000 (the
“CITY’s SHARE”).

15.4 Beginning three months after the award of the design contract, invoice the DISTRICT every quarter
for its share of the earned contract costs to date as invoiced to the CITY by the consultant. For costs
incurred by the CITY for utility relocations or for 404 Permit related costs, invoice the DISTRICT
for its cost shate of those costs as they are incurred.

15.5 Serve as the lead agency for PROJECT design and include the DISTRICT in the consultant selection

process.

15.6 Provide the DISTRICT with interim project submittals and allow three (3) weeks for review and
comment. Incorporate the DISTRICT’s comments into the PROJECT as appropriate.

IGA FCD 20244009 PCN 620.03.36 PAGE 3 OF 10

15.7 Serve as the lead agency for obtaining any necessary USACE Section 404 Permit, and for completing
mitigation efforts required by any such permit process.

15.8 Serve as the lead agency for rights-of-way acquisition and, in that capacity:

15.8.1 Obtain fee simple estate rights-of-way and/or easements required for the PROJECT. If it
is mutually agreed between the PROJECT PARTNERS that, the project property is no
longer needed for flood control purposes and therefore available for sale, the CITY may sell
the ptoperty under the stipulation that the DISTRICT shall be paid the DISTRICT’s cost
share percentage of the original acquisition cost, along with its pro-rata share of any
appreciation in land value from the original acquisition price of the property for the
PROJECT to the final disposition price at the time that the CITY disposes of the property.

15.8.2 Invoice the DISTRICT for the DISTRICT’s share of the PROJECT GOST for fee simple
estate right-of-way and/or easement acquisition as it is incurred and upon availability of
DISTRICT funding, no more frequently than quarterly, and no less frequently than annually.

15.8.3 Provide all CITY owned and controlled rights-of-way necessary for the PROJECT, and not
specifically purchased for this PROJECT, at no cost to the PROJECT.

15.9 Serve as the lead agency for PROJECT public involvement activities.

15.10 Prior to offering to make or making the PROJECT property available for any non-flood control
uses, assure the safety and appropriateness of such use and ensure such use will not interfere with
the operation and function of the PROJECT.

15.11 Obtain DISTRICT review and comments on the design and/or construction of any changes or
modifications to the PROJECT that may affect the hydraulic function of the PROJECT and resolve
and/or incorporate the DISTRICT’s comments into these PROJECT modifications.

15.12 Prior to DISTRICT’s final cost share payment for the design contract(s), provide written notification
to the DISTRICT that all contractual obligations have been met, all project contracts closed, and all
certificates of performance have been received by the CITY.

15.13 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 ot services
produced by the forced labor of ethnic Uyghurs in the People's Republic of China.

If the CITY becomes aware during the term of the Agreement that any Contractor is not in
compliance with this paragraph, the CITY shall notify the DISTRICT within five (5) business days
after becoming aware of the noncompliance. Failure of CITY to provide a written certification that
the appropriate contractor has remedied the noncompliance within one hundted 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.

IGA FCD 2024A009 PCN 620.03.36 PAGE 4 OF 10

16. The DISTRICT shall:

17.

16.1

16.2

16.3

16.4

Fund 65% of the PROJECT COST, making the DISTRICT’s estimated share $2,925,000.

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.

Participate in PROJECT public involvement activities.

Provide review comments to the CITY within three (3) weeks of receipt of the periodic PROJECT
submittals during the design process.

Each PROJECT PARNTER, and the PROJECT PARTNERS collectively:

17.1

17.2

Lhe

17.4

17.5

Shall comply with A.R.S. Sections 41-4401 and 23-214, subsection A.

17.1.1 Each party to this Agreement retains the legal right to inspect the records of the other party’s
and any contractors’ or subcontractors’ employees performing work under this Agreement
to verify compliance with A.R.S. Sections 41-4401 and 23-214, subsection A.

17.1.2 Failure by either party to this Agreement to comply with A.R.S. Sections 41-4401 and 23-
214, subsection A shall be deemed a breach of this Agreement and is subject to penalties up
to and including termination of the Agreement.

Shall require that any contractor selected for the PROJECT:

17.2.1 Wartant compliance with all federal immigration laws and tegulations that relate to its
employees and their compliance with A.R.S. section 23-214(A);

17.2.2 Agrees that a breach of the warranty shall be deemed a material breach of this Agreement
which entitles the other party to obtain appropriate relief including termination of this
Agreement;

17.2.3 Consent to inspection of all papers of the contractor or subcontractor employee(s) who
work(s) on the PROJECT to ensure that contractor ot subcontractor is complying with the
‘warranty.

17.2.4 Who engages in for-profit activity and has 10 or mote 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. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842.

Shall provide in-kind services and any permit(s), at no cost to the project, that a PROJECT
PARTNER has the authority to issue and that is required for the PROJECT.

Has the right, following written agreement of all PROJECT PARTNERS, to delegate its
responsibilities under this Agreement to another patty. Any delegation, however, shall not relieve
the delegating PROJECT PARTNER of its original responsibilities as defined herein.

Shall, in the event of any dispute arising pursuant to this Agreement, 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.. - ween

IGA FCD 2024A009 PCN 620.03.36 PAGE 5 OF 10

17.6 Shall take reasonable and necessary actions within its authority to ensure that only storm watet 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.

17.7 Shall 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 agreed to by the PROJECT PARTNERS will perform the audit. Any payments or
reimbursements necessaty to bring the PROJECT into compliance with the audit findings shall be
made within forty-five (45) days of acceptance by the PROJECT PARTNERS and at the agreed
upon cost share percentages set forth in Sections 15 and 16 herein.

17.8 Shall comply with applicable federal, state and local privacy laws. A PROJECT PARTNER may
withhold CITY or DISTRICT information from the other PROJECT PARTNER if required by
such privacy laws or by CITY or DISTRICT policy or regulation. This Agreement is subject to the
restrictions of A.R.S. Sections 44-1373 and 44-7601.

18. Each PROJECT PARTNER shall, as “Indemnitor,” to the extent permissible by law, indemnify, defend
and hold harmless the other PROJECT PARTNER (“Indemnitee”) 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 IGA, 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 tesults 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 or 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 arising in whole
or in part from the sanctioned non-flood control use. 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.

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 and General Manager

2801 West Durango Street

Phoenix, AZ 85009-6399

City of Peoria

City Manager

8401 West Monroe Street
Peoria, AZ 85345

IGA FCD 20244009 PCN 620.03.36 PAGE 6 OF 10

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
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 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 parties agree that this Agreement shall be renegotiated at the
written request of any party.

IGA FCD 20244009 PCN 620.03.36 PAGE 7 OF 10

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 2024A009 has been reviewed pursuant to A.R.S.
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

IGA FCD 2024A009 PCN 620.03.36 PAGE 8 OF 10

CITY OF PEORIA
A Municipal Corporation,

Jason Beck Mayor

Jason Beck, Mayor Date

Attest:

By:

AgneS Goodwine, City Clerk

The foregoing Intergovernmental Agreement IGA FCD 2024A009 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 Peoria under the laws of the State of Arizona.

OFFICE OF THE CITY ATTORNEY

wv Leal k bate ibs

Emily Jurmu
City Attorney Date
IGA FCD 2024A009 PCN 620.03.36 PAGE 9 OF 14

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IGA FCD 2024A009
EXHIBIT A

Grand Avenue, Olive Avenue, & 75» Avenue Regional Drainage
Improvements*

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a a me amen sou 0 —_ sewn mae -- “Approximate Locations

IGA FCD 2024A009 PCN 620.03.36 PAGE 10 OF 10