2021A006-IGA-PHOENIX-51TH AVE AND DOBBINS-FINAL.PDF

Maricopa County — Formal (2022-01-12)

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INTERGOVERNMENTAL AGREEMENT
Between

THE CITY OF PHOENIX
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
DESIGN, RIGHTS-OF-WAY ACQUISITION, AND UTILITY RELOCATION
of the

51st AVENUE AND DOBBINS ROAD STORM DRAIN PROJECT

IGA FCD 2021A006

Agenda Item

This Intergovernmental Agreement (IGA) is entered into by and between the City of Phoenix, a municipal
cotpotation, acting by and through its 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 be individually
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 parties.
STATUTORY AUTHORIZATION

1. The DISTRICT is empowered by Arizona Revised Statutes (A.R.S.) Section 48-3603, to enter into this
IGA and has authorized the undersigned to execute this IGA on behalf of the DISTRICT.

2. The CITY is empowered by A.R.S. Section 11-952(A), and the Phoenix City Charter, Chapter 2, Section 2,
to enter into this IGA, and by action of its City Council via Ordinance S-44315 passed on March 7, 2018,
has authorized the undersigned to execute this IGA on behalf of the CITY.

BACKGROUND

3. The Laveen Area Drainage Master Study/Plan Update (Laveen ADMS/P U or PLAN) study area is within
the City of Phoenix and unincorporated Maricopa County and is bounded by the Salt River to the north,
the western boundary of the Hohokam ADMS to the east, South Mountain to the south, and the limits of
the Gila River Indian Community to the west.

4. The PLAN was completed in December 2017 and its purpose was to quantify the extent of drainage and
flooding concerns, sources, and hazards in the area, In light of the new developments in the study area
since the completion of the original study in 2002, and using new 2 foot contour mapping and two
dimensional analysis that better depicts the level of flooding, the PLAN identified drainage and flooding
concerns not identified previously. The PLAN also re-examined the previous recommended mitigation,
compared alternative solutions to mitigate flooding hazards in the watershed, and recommended revised
drainage master plan features for this area.

IGA FCD 2021A006 PCN (17.04.31 PAGE 1 OF 8

5. The 51st Avenue and Dobbins Road Storm Drain Project (PROJECT) is one of the recommended PLAN
mitigations to reduce the impacts of flooding in the area. The anticipated PROJECT features, as shown in
Exhibit A, are subject to change in both size, type, and location as the final design progtesses, include
construction of new storm drain pipe with inlets, and construction of Sunrise Basin, The outlet for this
system is the existing Loop 202 freeway drainage basin. The PROJECT will provide 100-year flood
protection to properties bounded on the west by 59 Avenue, on the south by Sunrise Drive, on the east
by 47 Avenue and on the north by Dobbins Road.

6. On March 15, 2018, the Board of Directors of the DISTRICT adopted Resolution FCD 2018R006 (C-69-
18-024-6-00), 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 IGA identifies and defines the responsibilities of the DISTRICT and the CITY for PROJECT
activities telated to design, rights-of-way acquisition, and utility relocation.

TERMS OF AGREEMENT

8. The PROJECT COST for this phase of project development is estimated to be $3,500,000. This amount
is based on the best information available at the time of the execution of this IGA and is subject to change
without amendment to this IGA. Upon recognition of anticipated cost increases above this estimated
PROJECT COST, PROJECT PARTNERS shall communicate these anticipated increases and take
appropriate actions to address the situation.

8.1 The PROJECT COST includes all expenses related to the design, rights-of-way acquisition, and utility
relocation of the PROJECT, including but not limited to, obtaining United States Army Corps of
Engineers (USACE) Section 404 Permits including the mitigation efforts required by that permit
process, and landscaping and aesthetic features in accordance with and not to exceed the DISTRICT’s
Policy for the Aesthetic Treatment and Landscaping of Flood Control Projects.

8.2 All costs associated with additional rights-of-way acquired at the request of the CITY for non-flood
control purposes; landscaping, aesthetic features and amenities requested by the CITY that are above
and beyond those allowed by the DISTRICT’s Policy for the Aesthetic Treatment and Landscaping of
Flood Control Projects and are compatible with the PROJECT function, shall be funded by the CITY.

8.3 Personnel and internal administrative costs of either PROJECT PARTNER, including costs associated
with the issuance of PROJECT permits shall be funded by the respective PROJECT PARTNERS.

9. The target date for completion of PROJECT design is DISTRICT Fiscal year 2023. The PROJECT
PARTNER assigned lead agency responsibility for a task shall inform the other PROJECT PARTNER of
delays impacting this target completion date.

10. 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.

11. CITY funding for the PROJECT shall be from the CITY’s Capital Improvement Program (CIP) budget.

IGA FCD 20214006 PCN 117.04.31 PAGE 2 OF 8

12. The DISTRICT shall:

12.1 Serve as lead agency for: PROJECT design, obtaining all necessary USACE Section 404 permits,
approvals, public involvement activities, the relocation of all conflicting utilities in place via prior
rights, and acquisition of all required rights-of-way.

12.2 Fund fifty percent (50%) of the PROJECT COST making the DISTRICT’s estimated share
$1,750,000 for design, right of way, and utility relocation. Upon the awarding of the appropriate
contract(s), invoice the CITY for fifty percent (50%) of its shate of the PROJECT COST associated
with such contract(s) and, upon completion of the contract(s), invoice the CITY for its remaining
share of all PROJECT COST associated with said contract(s) incurred to date.

12.3 For all other services provided as lead agency, invoice the CITY for its share of the PROJECT COST
associated with the service as it is incurred, but in no event more frequently than quarterly, or less
frequently than annually.

12.4 Invoice the CITY for any and all expenses for items requested by the CITY that ate not included in
the PROJECT COST as incurred, but in no event more frequently than quarterly, ox less frequently
than annually.

12.5 Provide the CITY with interim design submittals, allow three (3) weeks for review and comment,
and incorporate any comments from the CITY into the PROJECT design as appropriate. If the
CITY has not responded within the three (3) week review period, the design submitted for review
shall be deemed to have been approved by the CITY.

13. All permanent rights-of-way acquired for the PROJECT pursuant to this IGA shall, upon completion and
acceptance of the PROJECT construction, be transferred or assigned by appropriate documents to the
CITY. ‘The conveyance and/or assignment documents shall provide that the land and/or land rights
acquired by the DISTRICT shall specifically be used for flood control purposes. If it is mutually agreed
between the PROJECT PARTNERS that land and/or land rights acquired for the PROJECT are no longer
needed for flood control purposes and therefore available for sale, the CITY may sell the land or zelease
land tights under the stipulation that the DISTRICT shall be paid its cost share percentage of the original
acquisition cost, along with its pro-rata share of any appreciation in land value from the original acquisition
ptice of said land or land rights for the PROJECT to the final disposition price at the time that the CITY
disposes of said land or telease said land rights.

14. The CITY shall:
14.1 Fund fifty percent (50%) of the PROJECT COST making the CITY’s estimated share $1,750,000.

14.2 Within thirty (30) calendar days of receipt, pay all invoices issued by the DISTRICT in accordance
with the terms of this IGA.

14.3 Participate in PROJECT public involvement activities.

14.4 Within three (3) weeks of receipt of interim project submittals, provide review comments to the
DISTRICT.

14.5 Within one (1) week of receipt of the PROJECT construction plans, return the signed construction
plans cover sheet to the DISTRICT.

IGA FCD 2021A006 PCN 117.04.31 PAGE 3 OF 8

15.

14.6

14.7

14.8

14.9

Cause to be relocated at no cost to the PROJECT all utilities within its jurisdiction that are in place
by permit and/or without prior tights.

Provide all CIT'Y owned oz controlled real property funded or acquired by CITY enterprise funds,
use and occupancy of 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.

Be responsible for assuring the safety and appropriateness of any non-flood control uses of the
PROJECT prior to making the PROJECT available for such uses.

Obtain DISTRICT review and comments on the design and/or construction of any future
modifications to the PROJECT improvements and resolve and/or incorporate the DISTRICT’s
comments into these future PROJECT improvement modifications.

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

15,1

15.2

15.3

15.4

15.5

15.6

Comply with all federal, state and local laws, regulations, ordinances, and resolutions applicable to
the PROJECT or the conduct of the PROJECT PARTNERS and ensure adherence to all
requirements imposed by law on any conttactor or subcontractor performing work on or in
connection with the PROJECT.

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

15.2.1 Hach party to this IGA retains the legal right to inspect the records of the conttactors’ or
subcontractors’ employees performing work on this PROJECT to verify compliance with
A.R.S. Sections 41-4401 and 23-214, subsection A.

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

Requite that any consultant selected for the PROJECT:

15.3.1 Consent to inspection of all papers of the consultant or sub-consultant employee(s) who
work(s) on the PROJECT to ensure that consultant or sub-consultant is complying with the
validity employment.

15.3.2 Agree that the other party to this Agreement retains the legal right to inspect the papers of the
consultant or sub-consultant employee(s) who work(s) on this Agreement to ensure that
consultant or sub-consultant is complying with the warranty under paragraph 15.3.1.

Provide services and costs to acquite any permit(s) required for the PROJECT.

Following mutual written agreement of all PROJECT PARTNERS, be allowed to delegate its
responsibilities under this IGA to another party. Any delegation, however, shall not relieve the
delegating PROJECT PARTNER of its otiginal responsibilities as defined in this IGA.

In the case of any dispute over any items in this IGA, 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.

IGA FCD 2021A006 PCN 117.04.31 PAGE 4 OF 8

16.

17.

18.

19.

20.

a1,

15.7 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.

15.8 A PROJECT PARTNER may withhold CITY or DISTRICT information from the other PROJECT
PARTNER if requited by such privacy laws or by CITY or DISTRICT policy or regulation. This
IGA is subject to the restrictions of A.R.S. Sections 44-1373, 44-7501 and 44-7601.

Each PROJECT PARTNER shall, as “Indemnitor,” to the extent permissible by law, indemnify, defend
and hold harmless the other PROJECT PARTNER (“Indetnnitee”), including agents, officers, directors,
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 ot 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, Indetmnitee
shall be liable for its own negligence ot wrongful acts as provided by law. In no event shall the Indemnitor
owe ot 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
Indemunitor’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 the CITY offer to make or make the
PROJECT available for any non-flood control uses, the CITY shall, to the extent permissible by law,
indemnify, defend and save harmless the DISTRICT, including agents, officers, directors, and employees
thereof, from any and all loss or expense incurred as a result of any claim or suit resulting from that non-
flood control use without limitation. 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.

All notices or demands upon any patty to this IGA shall be in writing and shall be delivered in person or
sent by mail addressed as follows:

Flood Control District of Maricopa County City of Phoenix

Director Street Transportation Director

2801 West Durango Street 200 W. Washington Street, 5 Floor
Phoenix, AZ 85009-6399 Phoenix, AZ 85003-1611

This IGA shall expize either (a) ten (10) years from the date of its full execution or (b) upon closing of the
PROJECT and after all funding obligations and reimbursements have been satisfied in accordance with
this IGA, whichever is the first to occur. However, by mutual written agreement of all parties, this IGA
may be amended or terminated.

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

Attached to this IGA or contained herein are the written determinations by the appropriate attorneys for
the patties to this IGA, that these agencies are authorized under the laws of the State of Arizona to enter
into this IGA and that it is in proper form.

Tf legislation is enacted after the effective date of this IGA that changes the relationship or structure of one
or mote parties to this IGA, the patties agree that this IGA shall be renegotiated at the written request of

any party.

IGA FCD 2021A006 PCN 117.04.31 PAGE 5 OF 8

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

Recommended by:

Michel A. Fulton, Director Date
Approved and Accepted:
By:
Chairman, Board of Directors Date
Attest:
By:
Clerk of the Board Date

The foregoing Intergovernmental IGA FCD 2021A006 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

IGA FCD 2021A006 PCN 117.04.31 PAGE 6 OF 8

Jeffrey Barton, City Manager

CITY OF PHOENIX
A Municipal Corporation,

z Ait LC Kauddaon Dec 1, 2021
y:
Kini Knudson, P.E. Date
Street Transportation Director
Attest:
fig ure NoazSdd Dec 8, 2021
City Clerk Date

The foregoing Intergovernmental IGA FCD 2021A006 has been reviewed putsuant to Arizona Revised
Statutes 11-952, as amended, by the undersigned attorney who has determined that it is in ptoper form and
within the power and authority granted to the City of Phoenix under the laws of the State of Arizona.

By: Patricia Boland (Dec 3, 2021 14:49 MST) Dec 3, 2021
City Attorney Date
RR
RRH
IGA FCD 2021A006 PCN 117.04.31 PAGE 7 OF 8

IGA FCD 2021A006
EXHIBIT “A”
Project Site Map

Project Site Map

eo Proposed Channel
ALL Proposed Stern Drain
==> Existing Storm Grain

O 375 750 4,500

IGA FCD 20214006

PCN 117.04.31

PAGE 8 OF 8