2024A008 IGA PHOENIX GO BOND - HOHOKAM DRAINAGE 1 (DESIGN) - CITY 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
HOHOKAM DRAINAGE PROGRAM - GO- BONDS SET 1

IGA FCD 2024A008

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 Directots, 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

The DISTRICT is empoweted by Atizona 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.

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 undetsigned to execute this Agreement on behalf of the CITY.

BACKGROUND

Hohokam Drainage Program — Set 1 (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, basins, and other drainage features in the atea south
of Baseline Road to Dobbins Road and 12 Street to 18" Street.

The proposed Hohokam Drainage Program Project is within the Hohokam Area Drainage Master Study
(ADMS). The proposed project will be designed and constructed for a 10-year level of protection.

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 prepate an Intergovernmental Agreement for

the cost-sharing, rights-of-way acquisition, utility relocations, design, construction, and construction
management of the PROJECT.

IGA FCB 2024A608 PCN 640.01.30 - 33 PAGE 1 OF 10

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 south of Baseline Road
to Dobbins Road, and 12th Street to 18th Street 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:

Basin 5 ~ Circle IK Park (640.01.30)

Basin 1 and 16t Street/Ardmore Road Storm Drain (640.01.31)
South Mountain Avenue Storm Drain (West) (640.01.32)
14/15 Street Storm Drain (640.01.33)

FRYNE

PURPOSE OF THE AGREEMENT

7. 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. An
additional IGA will need to be entered into for the toles, responsibilities and cost-share funding for
construction, construction management, and operation & maintenatice of the PROJECT.

TERMS OF AGREEMENT
8 The PROJECT, as referenced herein, is described in section 3 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:

91 The PROJECT COST for this agreement is estimated to be $11,773,619. 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.

91.1 The PROJECT COST breakdown for each sub project is as follows:

1. Basin 5 ~ Circle K Park — Circle K Park $7,767,766
2. Basin 1 and 16 Street/Ardmore Road Storm Drain $882,700
3. South Mountain Avenue Storm Drain (West) $812,085
4, 14th/15th Street Storm Drain $2,311,068

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 tights 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 shail 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.

IGA FCD 20244008 PCN 640.01.30 - 33 PAGE 2 OF 10

10.

11.

12.

13.

14.

The CITY shall be solely responsible for any costs that ate not needed for the flood control features of the
PROJECT, including but not limited to ail 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 Januaty 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 said Project is completed,
The County 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 Patties may implement a payment plan by mutual agreement.

11.1 The DISTRICT's total Project funding under this IGA is estimated to be $7,652,852.
11.2 DISTRICT funding for its cost share of the entire project is contingent on funding availability for

design, rights-of-way acquisition, construction, and all related activities, with an overall funding limit
of $23,408,090 distributed for each DISTRICT fiscal year, as outlined in the table below:

Fiscal Year INot to Exceed
FY 2025 $479,226

FY 2026 $3,586,813

FY 2027 $3,586,813

FY 2028 7,877,619
FY2029 7,877,619

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

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.

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

14.1. Plan and design the PROJECT to meet the recuttence 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.

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.

IGA FCD 2024A008 PCN 646.01,36 - 33 PAGE 3 OF 10

14.3 Fund thirty-five (35%) of the PROJECT COST, making the CIT'Y’s estimated share $4,120,767 (the
“CITY’s SHARE”). The CITY’s SHARE PROJECT COST breakdown for each sub project is as

follows:

1. Basin 5 ~ Circle K Park — Circle IX Park $2,718,718
2. Basin 1 and 16 Street/Ardmore Road Stotm Drain $308,945
3. South Mountain Avenue Storm Drain (West) $284,230
4. 14th/15t Street Storm Drain $808,874

14.4 Beginning three months after the award of each of the PROJECT design contracts, invoice the
DISTRICT evety 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 ate 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 for 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 ali 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, assute the safety and appropriateness of such use and ensure such use will not interfere with
the opetation and function of the PROJECT.

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.

IGA FCD 2024A608 : PCN 6460.01.30 - 33 PAGE 4 OF 10

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 Uyghuts in the People's Republic of China.

Any goods or setvices produced by the forced labor of ethnic Uyghuts in the People's Republic of
China

Any contractors, subcontractors, ot 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 awate of the noncompliance. Failure of CITY to provide a written certification that
the apptopriate 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

15.2

15.3

15.4

Fund 65% of the PROJECT COST, making the DISTRICT’s estimated share $7,652,852. The
DISTRICT’s SHARE PROJECT COST breakdown for each sub project is as follows:

1. Basin 5 — Circle K Park — Circle K Park $5,049,048
2. Basin 1 and 16% Street/Ardmote Road Storm Drain $573,755
3. South Mountain Avenue Storm Drain (West) $527,855
4. 14/15 Street Storm Drain $1,502,194

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.

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.

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.

IGA FCD 20244008 PCN 640.01.30 - 33 PAGE 5 OF 10

17.

16.2

16.3

16.4

16.5

16.6

16.7

16.8

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 matetial breach of this Agreement
which entitles the other patty 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 agtees 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 ot 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 party. 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.

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.

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 shate percentages set forth in Sections 15 and 16 hetein.

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 tequited by
such privacy laws or by CITY ot DISTRICT policy or regulation. This Agreement is subject to the
restrictions of A.R.S. Sections 44-1373 and 44-7601.

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

IGA FCD 20244008 PCN 640.0£.30 - 33 PAGE 6 OF 10

18.

19.

20.

21.

22.

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, ot any agreement or settlement results in an actual obligation
lower than the full amount of liability, the Indemuitor’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 ot expense incurted as a result of any claim or suit atising in whole
ot in part from the sanctioned non-flood control use. Such indemnification obligation is intended to be a
specific indemnity obligation tather 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 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, 5% Floor
Phoenix, AZ 85003-1611

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 expitation of this Agreement.

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

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 undet the laws of the State of Arizona
to enter into this Agreement and that it is in proper form.

If legislation is enacted after the effective date of this Agreement that changes the telationship or structure
of one or mote patties to this Agreement, the parties agree that this Agreement shall be renegotiated at the
written request of any patty.

IGA FCD 202446008 PCN 640.01.30 - .33 PAGE 7 OF 10

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

Recommended by:

Paul Baughman, Chief Engineet/General Manager Date

Approved and Accepted:
By:
Chairman, Boatd of Directors Date
Attest:
By:
Clerk of the Board Date

The foregoing Intergovernmental Agreement IGA FCD 2024A008 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 undet the laws
of the State of Arizona.

Flood Control District General Counsel Date

IGA FCD 20244008 PCN 640.01,36 - 33 PAGE 8 OF 10

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

» ber—~ 7/4/27

Joss. Brown, Street Transportation Directot Pate

Attest:

By hes Lash) O%-[ 2024

Denise Age Achibald, ty Clerk Date

The foregoing Intergovernmental Agreement IGA FCD 2024A008, 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 Date

"F = (a

RoseMatie R. Horvath Assistant Chief Counsel Date

GS Zi kd O48 Wil peg
‘LdaG 4YSID ALID

IGA FCD 2024A008 PCN 640.01.30 - 33 PAGE 9 OF 10

IGA FCD 2024A0

EXHIBIT A

Hohokam Drainage Program —- Set 1

08

a

& a

BY G

= § | Gary Wy.
Sn,
ad ountain Ave 1

_. Basin 5

~ Ardmore Rd

Caldwell St

a
“s
AQ
. a Auelid Ave
\” Bedio Ra ] |
on

Basin 5-Circle K Park -Circle K Park

14th/15th Street Storm Drain

Basin 1 and 16th Street/Ardmore Road Storm Drain

Blwlr des

South Mountain Avenue Storm Drain (West)

*Approximate Locations

IGA FCD 20244008 PCN 640,01,30 - 33

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