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Intergovernmental Agreement
for the
Design, Rights-of-Way Acquisition, Utility Relocations, Construction, Construction
Management and Operation and Maintenance
of the
‘ Watson Drive and Bonarden Lane Project
between the
City of Tempe
andthe
Flood Control District of Maricopa County
IGA FCD 2020A003
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 the City of Tempe, a municipal corporation,
acting by and through its Mayor and City Council, (the “CITY”). The City 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
entet into this Agreement and has authorized the undersigned to execute this Agreement on
behalf of the DISTRICT.
2. The CITY is empoweted by A.R.S. § 9-240(B), as amended, to enter into this Agreement and has
authorized the undetsigned to execute this Agreement on behalf of the CITY.
BACKGROUND
3. On April 27, 2011 the Board of Directors of the DISTRICT (the Boatd) adopted Resolution
FCD 2009R003A (C-69-09-062-6-01) authorizing the DISTRICT to cost-shate in projects
recommended under the DISTRICT’s Small Project Assistance Program.
4, Under the DISTRICT’s Small Project Assistance Program for Fiscal Year 2021, the CITY
proposed the Watson Drive and Bonarden Lane Project (the “PROJECT”) to provide the
following benefits:
4.1 Reduce the flood hazard to several properties that have experienced historic flooding.
IGA FCD 20204003 PCN 699.21.38 PAGE | OF 8
5. The PROJECT’ scored 5 among 11 submittals for the Fiscal Year 2021 program, and has been
recommended by DISTRICT staff.
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
patagraph 4 of this Agreement. Features of the PROJECT, as envisioned at the time of this
Agreement, ate represented in Exhibit A but are subject to change without amendment to this
Agreement.
8 PROJECT CONSTRUCTION COST shall mean the actual amount of money requited to
complete the flood control features of the PROJECT that are completed and invoiced by the
CITY to the DISTRICT between July 1, 2020 and June 30, 2022.
8.1 The following costs ate expressly excluded from the PROJECT CONSTRUCTION
COST shared under this Agreement:
8.1.1 Costs associated with tights-ofway acquisition, petmitting, construction
management (including materials testing and survey work), opetations 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.
82 The PROJECT DESIGN AND CONSTRUCTION COST is estimated to be $951, 340
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, 2020 and June 30, 2022, 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 cutrent estimated
funding shate 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 CITY per the terms of this Agreement within thirty (30) days of receipt of
an invoice from the CITY fot its share of the PROJECT CONSTRUCTION COST.
IGA FCD 20204003 PCN 699.2138 PAGE 2 OF 8
9.3. Participate in a final inspection of the completed PROJECT with the CITY.
10. 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 $451,340 and CITY will fully fund all PROJECT costs
for any work completed and invoiced before July 1, 2020 or after June 30, 2022.
10.2 Fully and solely pay any payment required that does not fall within the definition of
PROJECT 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 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, 2022, prepare a final accounting including change order costs not
previously paid, and invoice the DISTRICT for the remainder of its share of the
PROJECT CONSTRUCTION COST incutred, if any, to date.
10.5 Reimbutse the DISTRICT for any previous over-payments.
10.6 Design the PROJECT, ptovide 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
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 permits required for the PROJECT.
10.9 Obtain rights-of-way required 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 otdets to the
DISTRICT for concutrence.
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 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, ittigation, multi-use trails and berms, removal of trash and
debris, electricity and other operation costs for the facilities, vandalism repair and
IGA FCD 2020A003 PCN 699,21.38 PAGE 3 OF 8
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. Require that any contractor selected for the PROJECT:
10.14.1 Warrant its compliance with all federal immigration laws and tegulations that
relate to its employees and theis compliance with A.R.S. § 23-214(A);
10.14.2 Agree that a breach of the wattanty under paragraph 10.14.1 shall be deemed a
material breach of contract and is subject to penalties up to and including
termination of the contract;
10.143 Agree 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 10.14.1;
11. Any local permits required for the PROJECT that ate 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 patty. Any delegation, however, shall not
relieve the delegating PROJECT PARTNER of its otiginal 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 necessaty actions within its authotity 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 Dischatge Elimination
System or any other applicable discharge requirements, including any permit requirements.
16, The PROJECT PARTNERS agtee 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.
17. Each PROJECT PARTNER (indemunitor) 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 result of any claim or
suit of any nature whatsoever, which arises out of indemnitor’s negligent or wrongful acts or
IGA FCD 2020A003 PCN 699.21.38 PAGE 4 OF 8
18.
19.
20.
21.
22.
23.
omissions pursuant to this Agreement. The CITY shall further, to the extent permissible by law,
indemnify, defend and save harmless the DISTRICT including agents, officers, ditectors,
governors and employees thereof, ftom and against any loss or expense incurred as a result of
any claim or suit of any natute whatsoever, which arises out of recreational use of the PROJECT
in the event that it elects to invite such use (with or without DISTRICT concuttence). 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 ot 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 District of Maricopa County City of Tempe
Director Public Works Department
2801 West Durango Street P.O. Box 5002
Phoenix, Arizona 85009-6399 Tempe, Arizona 85280
This Agreement shall expite 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 occut.
However, by mutual written agreement of all PROJECT PARTNERS, this Agreement may be
amended or terminated except as expressly stated im this Agreement. The operation and
maintenance and indemnification provisions of this Agreement shall sutvive the expiration of
this Agreement.
This Agreement is subject to the provisions of A.R.S. § 38-511.
Attached to this Agreement or contained hetein 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 entet into this Agreement and that it is in proper form.
If legislation is enacted after the effective date of this Agreement that changes the relationship ot
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.
IGA FCD 20204003 PCN 699.21.38 PAGE 5 OF 8
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State of Arizona
Recommended by:
Michael A. Fulton Date
Director
Approved and Accepted:
Chaitman, Board of Directors
Date
Attest:
Clerk of the Board
Date
The foregoing Intergovernmental Agreement FCD 2020A003 has been teviewed pursuant to A.R.S.
Section 11-952, as amended, by the undersigned 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 under the laws of the State of Arizona.
General Counsel Date
IGA FCD 2020A003 PCN 699.21.38 PAGE 6 OF 8
CITY OF TEMPE
A Municipal Corporation
Approved and Accepted By:
le 03/26/2020
Mark W. Mitchell, Mayor Date
Attest:
By: Cle RI oe 93/26/2020
Carla R. Reece, City Clerk Date
The foregoing Intergovernmental Agreement FCD2020A003 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 Tempe under the laws of the State of
Arizona.
Fe (cae eee 03/26/2020
Judith R. Baumann, City Attorney Date
€2020-90
IGA FCD 2020A003 PCN 699.21.38 PAGE 7 OF 8
Exhibit A: Watson Drive and Bonatden Lane Project
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IGA FCD 20204003 PCN 699.21.38 PAGE 8 OF 8