2024A015 IGA PHOENIX GO-BONDS SET 3 - LAVEEN FLOOD MITIGATION PROJECTS (DESIGN) SIGNED.PDF
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INTERGOVERNMENTAL AGREEMENT
between the
CITY OF PHOENIX
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for
DESIGN, RIGHTS-OF-WAY ACQUISITION, AND UTILITY RELOCATIONS
of the
LAVEEN FLOOD MITIGATION PROJECTS – GO- BONDS SET 3
IGA FCD 2024A015
Agenda Item _____________________
This Intergovernmental Agreement (Agreement) is entered into by and between the City of Phoenix, a
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
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), and the Phoenix City Charter, Chapter 2, Section 2,
to enter into this Agreement, and by action of its City Council via Ordinance S-44315 passed on June 26,
2024, has authorized the undersigned to execute this Agreement on behalf of the CITY.
BACKGROUND
3. Laveen Flood Mitigation Projects – GO-Bonds Set 3 (PROJECT) is located in the developed urban area
within the CITY The PROJECT is intended to mitigate excess stormwater runoff that impacts existing and
proposed residences and businesses by using new storm drains, and other drainage features in the area
between Broadway Road to Carver Road and 51st Avenue to 7th Avenue.
4. The PROJECT is within the Laveen Area Drainage Feasibility Study. The PROJECT will be designed and
constructed for a 10-year level of protection.
5. On May 22, 2024, the Board of Directors of the DISTRICT adopted Resolution FCD 2024R002 (C-69-
24-073-X-00) authorizing the DISTRICT to negotiate and prepare an Intergovernmental Agreement for
the cost-sharing, rights-of-way acquisition, utility relocations, design, construction, and construction
management of the PROJECT.
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6. This Agreement is for the Design, Rights-of-Way Acquisition, and Utility Relocations of the PROJECT,
which will consist of storm drains and other conveyance improvements in the area between Broadway
Road to Carver Road and 51st Avenue to 7th Avenue in Phoenix to mitigate flooding caused by the 10-
year event. The proposed PROJECT elements are shown on Exhibit A, attached hereto and made a part
hereof, and the PROJECT includes the following sub projects:
1. 43rd Ave Conveyance Improvements (640.01.38)
2. 15th Ave Conveyance Improvements (640.01.39)
3. Lindo Park Storm Drain Connection (640.01.40)
4. 35th Ave & Olney Conveyance Improvements (640.01.41)
PURPOSE OF THE AGREEMENT
7. This Agreement identifies and defines the responsibilities of the DISTRICT and the CITY for activities
related to Design, Rights-of-Way Acquisition, and Utility Relocations for the PROJECT. An additional
IGA will need to be entered into for the roles, responsibilities and cost-share funding for construction,
construction management, and operation & maintenance of the PROJECT.
TERMS OF AGREEMENT
8. The PROJECT, as referenced herein, is described in section 3 and in section 6 of this Agreement.
9. The PROJECT COST for this agreement, as referenced herein, solely encompasses the following costs
directly associated with the PROJECT, unless noted otherwise below:
9.1
The PROJECT COST for this agreement is estimated to be $6,057,930. 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.
9.1.1
The PROJECT COST breakdown for each sub project is as follows:
1. 43rd Ave Conveyance Improvements
$2,912,962
2. 15th Ave Conveyance Improvements
$2,010,717
3. Lindo Park Storm Drain Connection
$773,353
4. 35th Ave & Olney Conveyance Improvements
$360,898
9.2
Development of the final design and preparation of construction documents.
9.3
Acquisition of fee simple rights-of-way and/or drainage easements required for the PROJECT.
9.4
Relocation of conflicting utilities with prior rights, together with associated costs. Utilities in place
without prior rights will be relocated at their owners’ expense.
9.5
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.
9.6
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 PROJECT permits, unless specifically identified otherwise in this Agreement.
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10. 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.
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 DISTRICT’S 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 PROJECT PARTNERS may implement a payment plan by mutual
agreement.
11.1 The DISTRICT's total PROJECT funding under this IGA is estimated to be $3,937,655.
11.2 DISTRICT funding for its cost share of the entire project (including design, rights-of-way,
construction and construction management) is contingent on funding availability with an overall
funding limit of $15,143,834 distributed for each DISTRICT fiscal year, as outlined in the table
below:
Fiscal Year
Not to Exceed
FY 2025
$148,830
FY 2026
$1,894,412
FY 2027
$1,894,412
FY2028
$5,603,090
FY2029
$5,603,090
11.3 Funding increases may be negotiated and are subject to written approval from the DISTRICT,
contingent upon budget availability.
12. 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.
13. CITY funding for the PROJECT shall be from the CITY’s Capital Improvement Program (CIP) budget.
14. The CITY shall:
14.1 Plan and design the PROJECT to meet the recurrence interval of the 10-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.
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14.2 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.
14.3 Fund thirty-five (35%) of the PROJECT COST, making the CITY’s estimated share $2,120,275 (the
“CITY’s SHARE”). The CITY’s SHARE PROJECT COST breakdown for each sub project is as
follows:
1. 43rd Ave Conveyance Improvements
$1,019,537
2. 15th Ave Conveyance Improvements
$703,751
3. Lindo Park Storm Drain Connection
$270,673
4. 35th Ave & Olney Conveyance Improvements
$126,314
14.4 Beginning three months after the award of each of the PROJECT design contracts, 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 share of those costs as they are as they are incurred or
include with the quarterly consultant contract invoice.
14.5 Serve as the lead agency for PROJECT design and include the DISTRICT in the consultant selection
process.
14.6 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.
14.7 Serve as the lead agency for obtaining any necessary USACE Section 404 Permits and completing
mitigation efforts required by any such permit process.
14.8 Serve as the lead agency for rights-of-way acquisition and, in that capacity:
14.8.1 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 property 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.
14.8.2 Invoice the DISTRICT for the DISTRICT’s share of the PROJECT COST for fee simple
estate right-of-way and/or easement acquisition as it is incurred and upon the availability of
DISTRICT funding, no more frequently than quarterly and no less frequently than annually.
14.8.3 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.
14.9 Serve as the lead agency for PROJECT public involvement activities.
14.10 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.
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14.11 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.
14.12 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.
14.13 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 or 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 hundred 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.
15. The DISTRICT shall:
15.1 Fund 65% of the PROJECT COST, subject to the provisions of section 11.3 above of this
agreement, making the DISTRICT’s estimated share $3,937,654. The DISTRICT’s SHARE
PROJECT COST breakdown for each sub project is as follows:
1. 43rd Ave Conveyance Improvements
$1,893,425
2. 15th Ave Conveyance Improvements
$1,306,965
3. Lindo Park Storm Drain Connection
$502,679
4. 35th Ave & Olney Conveyance Improvements
$234,583
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 Provide review comments to the CITY within three (3) weeks of receipt of the periodic PROJECT
submittals during the design process.
16. Each PROJECT PARTNER and the PROJECT PARTNERS collectively:
16.1 Shall comply with A.R.S. Sections 41-4401 and 23-214, subsection A.
16.1.1 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.
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16.1.2 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.
16.2 Shall require that any contractor selected for the PROJECT:
16.2.1 Warrant 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 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.
16.2.3 Consent to inspection of all papers of the contractor or subcontractor employee(s) who
work(s) on the PROJECT to ensure that the contractor or subcontractor is complying with
the warranty.
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. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842.
16.3 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.
16.4 Has the right, following written agreement of all PROJECT PARTNERS, 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.
16.5 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.
16.6 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.
16.7 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 necessary 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.
16.8 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.
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17. 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 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 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.
18. 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 Phoenix
Street Transportation Director
200 W. Washington Street, 5th Floor
Phoenix, AZ 85003-1611
19. 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.
20. This Agreement is subject to cancellation by any party pursuant to the provisions of A.R.S. Section 38-511.
21. 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.
22. 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.
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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 2024A015 has been reviewed pursuant to A.R.S.
Section 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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In witness whereof, Phoenix and Agency, having carefully read and reviewed
the foregoing paragraphs, have executed this Agreement to be effective on the date first
written above.
CITY OF PHOENIX
A Municipal Corporation
Jeffrey Barton, City Manager
By:
Eric Froberg, City Engineer
Date
Attest:
By:
Denise Archibald, City Clerk
Date
The foregoing Intergovernmental Agreement IGA FCD 2024A015, has been reviewed pursuant to A.R.S.
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 Phoenix under the laws of the State of Arizona.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
____________________________________________________
Julie M. Kriegh, City Attorney
____________________________________________________
Maxwell W. Mahoney, Assistant City Attorney
Date
10/29/2024
Oct 31, 2024
Nov 6, 2024
Nov 13, 2024
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IGA FCD 2024A015
EXHIBIT A
Laveen Flood Mitigation Projects – GO-Bonds Set 3