2022A005 - SPAP-IGA - APOLLO GARDENS DRAINAGE IMP..PDF

C22-0319

Intergovernmental Agreement
for the

Design, Rights-of-Way Acquisition, Utility Relocations, Construction, Construction
Management and Operation and Maintenance
of the

Apollo Gatdens Drainage Imptovements
between the
City of Glendale
and the
Flood Control Disitict of Maricopa County

IGA FCD 2022A005

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 “DISTRICI”), and the City of Glendale, a municipal
corporation, acting by and through its Mayot and City Council, (the “CITY”). The CIT'Y 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 undetsigned to execute this Agreement on
behalf of the DISTRICT.

2, The CITY is empowered by A.RS. § 9-240(B) and A.R.S. §11-952, as amended, to enter into this
Agteement and has authorized the undetsigned to execute this Agreement on behalf of the
CITY,

BACKGROUND

3. On Apel 27, 2011 the Boatd 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. Undet the DISTRICT’s Small Project Assistance Progtam for Fiscal Year 2023, the CITY
ptoposed the Apollo Gardens Drainage Improvements (the “PROJECT”) to provide the
following benefits:

IGA FCD 20224005 PCN 699.23,32 PAGE 1 OF 9

4.1 Reduce the flood hazard to a property that has experienced historic flooding.

5. The PROJECT has been recommended by DISTRICT staff fot 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 CITY 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 ate subject to change without amendment to this
Agreement.

8. PROJECT DESIGN AND CONSTRUCTION COST shall mean the actual amount of money
tequited to complete the flood conttol features of the PROJECT that ate completed and
invoiced by the CITY to the DISTRICT between July 1, 2022 and June 30, 2024.

8.1 The following costs are expressly excluded ftom the PROJECT DESIGN AND
CONSTRUCTION COST shated under this Agreement:

81.1 Costs associated with tights-ofway acquisition, petmitting, construction
management (including materials testing and sutvey wotk), 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 incurted by either PROJECT PARTNER.

8.2 The PROJECT DESIGN AND CONSTRUCTION COST is estimated to be $613,000,
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 incutred and invoiced between July 1, 2022 and June 30, 2024, with the funding
from the DISTRICT limited to a maximum of $500,000 in accotdance with the
DISTRICT’s Small Project Assistance Program. The DISTRICT’s curtent estimated
funding share is $459,750. 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 Progtam Budget funding. This tetm shall not be
amended.

IGA FCD 2022A005 PCN 699,23,32

10.

9.2 Reimburse the CITY per the terms of this Agreement within thirty (30) days of receipt of
an invoice from the CITY for its shate of the PROJECT DESIGN AND

CONSTRUCTION COST.

9.3 Participate in a final inspection of the completed PROJECT with the CITY.

The CITY shall:

10.1 Fund the full PROJECT DESIGN AND CONSTRUCTION COSTS not reimbursed by
the DISTRICT, making the CITY’s estimated PROJECT’ DESIGN AND
CONSTRUCTION COST' share $153,250 and CITY 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 Setve 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 fot 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, ptepate a final accounting including change order costs not
pteviously paid, and invoice the DISTRICT for the remainder of its shate of the
PROJECT DESIGN AND CONSTRUCTION COST incurted, if any, to date.

10.5 Reimburse the DISTRICT for any previous ovet-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 ftom the
CITY, comments on the plans and specifications, if any. The CITY shall incorporate the
comments provided by the DISTRICT into the PROJECT as appropriate.

10.7 Coordinate and staff any necessaty public involvement activities related to the PROJECT.

10.8 Obtain all pertnits required for the PROJECT.

10.9 Obtain rights-of-way requited 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 ordets 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 petformed include, but ate not

IGA FCD 2022A005 PCN 699.23.32 PAGE 3 OF 9

di.

12.

13.

14.

15.

16.

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, electticity and other operation costs for the facilities, vandalism tepair and
replacement, and structural repair and replacement of the flood control structures. The
CITY 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 City of Glendale over the past year in accordance
with the project design intent and to ensure propet hydraulic function.

10.15 Requite that any contractor selected for the PROJECT:

10.15.1 Warrant its compliance with all federal immigration laws and regulations that
telate to its employees and their compliance with A.RS. § 23-214(A);

10.15.2 Agtee that a breach of the warranty undet 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;

10.15.3 Agree that the DISTRICT retains the legal right to inspect the papets 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;

Any local permits required for the PROJECT that are issued by either PROJECT PARTNER
shall be issued at no cost to the PROJECT.

Hither PROJECT PARTNER may, with mutual written agreement of all PROJECT
PARTNERS, delegate responsibilities to another party. Any delegation, however, shall rot
relieve the delegating PROJECT PARTNER of its original responsibilities as defined herein,

Each PROJECT PARTNER cettifies that it has disclosed to the other PROJECT PARTNER.
any known ongoing or anticipated litigation (to which it is a party) telated to the PROJECT or
PROJECT-affiliated flooding hazards, and shall continue to make such disclosures through the
duration of this Agreement.

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 temedies
provided by law.

Each PROJECT PARTNER shall take reasonable and necessaty 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.

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

IGA FCD 20224008 PCN 699.23.32 PAGE 4 OF 9

17,

18.

19.

20.

21.

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 necessaty 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.

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 incutted as a tesult of any claim or
suit of any nature whatsoever, which atises out of indemnitor’s negligent or wrongful acts or
omissions pursuant to this Agreement. The CITY shall futther, to the extent permissible by law,
indemnify, defend and save harmless the DISTRICT including agents, officers, directors,
governors and employees theteof, from and against any loss or expense incurted as a tesult of
any claim or suit of any nature whatsoever, which arises out of recreational use of the PROJECT
in the event that it elects ta invite such use (with or without DISTRICT concutrence). Such
indemnification obligations shall encompass any personal injury, death or ptopetty 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 otf litigation,
incutred by the indemnitee. Indemnitee shall be liable for its own negligence or wrongful acts as
provided by law.

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
Agteement.

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).

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 Disttict of Maricopa County City of Glendale

Director City Manager
2801 West Durango Street 5850 W. Glendale Avenue
Phoenix, Arizona 85009-6399 Glendale, AZ 85301

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 teimbursements associated with this Agreement, whichever is the first to occur.
However, by mutual written agreement of all PROJECT PARTNERS, this Agreement may be
amended ot tetminated except as expressly stated in this Agreement. The operation and
maintenance and indemnification provisions of this Agreement shall survive the expiration of
this Agreement.

This Agreement is subject to the provisions of AR.S, § 38-511.

IGA FCD 2022A005 PCN 699,.23.32 PAGE 5 OF 9

22. Attached to this Agreement or contained herein are the written determinations by the
apptopriate attorneys for the PROJECT’ PARTNERS, that these agencies ate 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 of more PROJECT PARTNERS, the PROJECT PARTNERS agree that this
Agreement shall be renegotiated at the written request of either PROJECT PARTNER.

IGA FCD 2022A005 PCN 699,23.52 PAGE6 OF 9

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

Recommended by:

Michael A. Fulton Date
Ditector

Apptoved and Accepted:

By:
Chairman, Board of Directors Date .
Attest:

By:
Clerk of the Board Date

The foregoing Intergovernmental Agreement FCD 2022A005 has been reviewed pursuant to ARS.
Section 11-952, as amended, by the undetsigned General Counsel, who has detetmined that it is in
proper form and within the powers and authority granted to the Flood Control District of Maricopa
County undet the laws of the State of Arizona.

General Counsel Date

IGA FCD 2022A005 PCN 699.23,32 PAGE7 OF 9

CITY OF GLENDALE

A Municipal Corporation
Approved and Accepted By,-
: 3-A% 99-
City/Admiinistrator Date
Attest:
» CP sboban
(SS Clerk fe

The foregoing Intergovetnmental Agreement FCD 2022A005 has been teviewed pursuant to ARS.
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 City of Glendale under the laws of the State
of Arizona.

(Gama

TGA FCD 2022A005 PCN 699.23,32 PAGES OF 9

Exhibit A: Apolfo Gardens Drainage Improvements

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PCN 699.23,32 PAGE 9 OF 9

IGA BCD 20224005