IGA2022A006 FY23 SPAP MCDOT-PATTON-195(699.23.33).DOC
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IGA FCD 2022A006
PCN 699.23.33
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Intergovernmental Agreement
for the
Design, Rights-of-Way Acquisition, Utility Relocations, Construction, Construction
Management and Operation and Maintenance
of the
Patton Road at 195th Avenue
between
Maricopa County
and the
Flood Control District of Maricopa County
IGA FCD 2022A006
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 Maricopa
County, a political subdivision of the State of Arizona (the “COUNTY”). The COUNTY
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 COUNTY is empowered by A.R.S. § 11-951 et. seq, authorizing public agencies to
enter into Intergovernmental Agreements for the provision of services or for joint or
cooperative action.
BACKGROUND
3.
On April 27, 2011 the Board of Directors of the DISTRICT (the Board) adopted
Resolution FCD 2009R003A (C-69-09-062-6-01) 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 2023, the
COUNTY proposed the Patton Road at 195th Avenue Project (the “PROJECT”) to
provide the following benefits:
4.1
Reduce the flood hazard to a property that has experienced historic flooding.
5.
The PROJECT has been recommended by DISTRICT staff for the Fiscal Year 2023
program.
PURPOSE OF THE AGREEMENT
6.
The purpose of this Agreement is to identify and define the responsibilities of the
DISTRICT and the COUNTY 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.
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
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completed and invoiced by the COUNTY to the DISTRICT between July 1, 2022 and
June 30, 2024.
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.
8.1.4
Personnel and administrative costs incurred by either PROJECT
PARTNER.
8.2
The PROJECT DESIGN AND CONSTRUCTION COST is estimated to be
$2,067,545, 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, 2022 and June
30, 2024, with the funding from the DISTRICT limited to a maximum of
$500,000 in accordance with the DISTRICT’s Small Project Assistance
Program. The DISTRICT’s current estimated funding share is $500,000.
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 COUNTY per the terms of this Agreement within thirty (30)
days of receipt of an invoice from the COUNTY for its share of the PROJECT
DESIGN AND CONSTRUCTION COST.
9.3
Participate in a final inspection of the completed PROJECT with the COUNTY.
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10. The COUNTY shall:
10.1 Fund the full PROJECT DESIGN AND CONSTRUCTION COSTS not
reimbursed by the DISTRICT, making the COUNTY’s estimated PROJECT
DESIGN AND CONSTRUCTION COST share $1,567,545 and COUNTY will
fully fund all PROJECT costs for any work completed and invoiced before July
1, 2022 or after June 30, 2024.
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, 2024, 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 COUNTY, comments on the plans and
specifications, if any. The COUNTY 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.
10.10Relocate conflicting utilities.
10.11Construct the PROJECT, provide construction management (including
materials testing and survey work), and provide any proposed construction
change orders to the DISTRICT for concurrence.
10.12Coordinate a final inspection of the completed PROJECT with the DISTRICT.
10.13Own 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
COUNTY may delegate this responsibility to a third party but will remain
ultimately accountable to the DISTRICT under this Agreement.
10.14On 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 COUNTY over the past
year in accordance with the project design intent and to ensure proper hydraulic
function.
10.15Require that any contractor selected for the PROJECT:
10.15.1Warrant its compliance with all federal immigration laws and regulations
that relate to its employees and their compliance with A.R.S. § 23-
214(A);
10.15.2Agree 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;
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10.15.3Agree 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.
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.
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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 COUNTY 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 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 County Maricopa County
Director
Department of Transportation
2801 West Durango Street
Attn: Director
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Phoenix, Arizona 85009-6399
2901 West Durango Street
Phoenix, Arizona 85009-6399
20. This Agreement shall expire either (a) two years from the date of execution by all
PROJECT PARTNERS, 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 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:
Michael A. Fulton
Date
Director
Approved and Accepted:
By:
Chairman, Board of DirectorsDate
Attest:
By:
Clerk of the Board
Date
The foregoing Intergovernmental Agreement FCD 2022A006 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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MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Approved and Accepted By:
Transportation Director
Date
Approved and Accepted:
By:
Chairman, Board of DirectorsDate
Attest:
By:
Clerk of the Board
Date
The foregoing Agreement has been reviewed pursuant to A.R.S. 11-952, as amended, by
the undersigned Deputy County Attorney, who has determined that it is in proper form
and within the powers and authority granted to the County by the Board of Supervisors
under the laws of the State of Arizona.
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Deputy County Attorney
Date
Exhibit A: Patton Road at 195th Avenue
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Not to Scale