2020A008 - LITCHFIELDPARKSIGNED SPAP IGA2020A008 VISTAVERDE.PDF

Intergovernmental Agreement
for the

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

Vista Verde Drive Drainage Improvement Project
between the
City of Litchfield Park
and the

Flood Control District of Maricopa County
IGA FCD 2020A008

Agenda Item Business V. J. — May 20, 2020 Regular Meeting

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
Litchfield Park, 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 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. § 9-240(B), as amended, to enter into this
Agreement and has authorized the undersigned to execute this Agreement on behalf
of the CITY.

BACKGROUND

3. On April 27, 2011 the Board 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.

IGA FCD 2020A008 PCN 699.21.33 PAGE 10F9

4. Under the DISTRICT’s Small Project Assistance Program for Fiscal Year 2021, the CITY
proposed the Vista Verde Drive Drainage Improvement Project (the “PROJECT”) to
provide the following benefits:

4.1 Reduce the flood hazard to the several structures that have experienced
historic flooding.

5. The PROJECT scored 3 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 paragraph 4 of this Agreement. Features of the PROJECT, as
envisioned at the time of this Agreement, are 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 required 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 are expressly excluded from the PROJECT CONSTRUCTION
COST shared under this Agreement:

8.1.1 Costs associated with rights-of-way acquisition, permitting, construction
management (including materials testing and survey work), 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 incurred by either PROJECT PARTNER.

8.2. The PROJECT DESIGN AND CONSTRUCTION COST is estimated to be $250,000
but is subject to change without amendment to this Agreement.

9. The DISTRICT shall:

IGA FCD 2020A008 PCN 699.21.33 PAGE 2 OF9

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 current
estimated funding share is $187,500. 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 for its share of the PROJECT
CONSTRUCTION COST.

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 $62,500; 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 Serve 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 incurred, if
any, to date.

10.5 Reimburse the DISTRICT for any previous over-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 from the CITY, comments on the plans and specifications, if any.

IGA FCD 2020A008 PCN 699.21.33 PAGE 3 OF 9

The CITY shall incorporate the comments provided by the DISTRICT into the
PROJECT as appropriate.

10.7 Coordinate and staff any necessary 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 orders 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
performed 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,
irrigation, multi-use trails and berms, removal of trash and debris, electricity
and other operation costs for the facilities, vandalism repair 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 Require that any contractor selected for the PROJECT:

10.14.1 Warrant its compliance with all federal immigration laws and
regulations that relate to its employees and their compliance with
A.R.S. § 23-214(A);

10.14.2 Agree that a breach of the warranty 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;

10.14.3 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 are issued by either PROJECT
PARTNER shall be issued at no cost to the PROJECT.

IGA FCD 2020A008 PCN 699.21.33 PAGE 4 OF9

12.

13.

14.

15.

16.

17.

Either PROJECT PARTNER may, with mutual written agreement of all PROJECT
PARTNERS, delegate responsibilities to another party. Any delegation, however,
shall not relieve the delegating PROJECT PARTNER of its original responsibilities as
defined herein.

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.

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.

Each PROJECT PARTNER 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.

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 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.

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 incurred as a result of any claim or suit of any nature whatsoever, which
arises out of indemnitor’s negligent or wrongful acts or 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, directors,
governors and employees thereof, from and against any loss or expense incurred as
a result of any claim or suit of any nature whatsoever, which arises out of
recreational use of the PROJECT in the event that it elects to invite such use (with or
without DISTRICT concurrence). 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 or litigation,
incurred by the indemnitee. Indemnitee shall be liable for its own negligence or
wrongful acts as provided by law.

IGA FCD 2020A008 PCN 699.21.33 PAGE 5 OF9

18.

19.

20.

21.

22.

23.

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 Agreement.

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 Litchfield Park
Director City Engineer

2801 West Durango Street 214 W. Wigwam Boulevard
Phoenix, Arizona 85009-6399 Litchfield Park, Arizona 85340

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 reimbursements associated with this Agreement,
whichever is the first to occur. However, by mutual written agreement of all
PROJECT PARTNERS, this Agreement may be amended or terminated 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 A.R.S. § 38-511.

Attached to this Agreement or contained herein 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 enter into this Agreement and
that it is in proper form.

| f legislation is enacted after the effective date of this Agreement that changes the
relationship or 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 2020A008 PCN 699.21.33 PAGE 6 OF9

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

Recommended by:

Michael A. Fulton, Director Date

Approved and Accepted:

By:
Chairman, Board of Directors
Printed Name
Date
Attest:
By:

Clerk of the Board

Printed Name

Date

The foregoing Intergovernmental Agreement FCD 2020A008 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.

General Counsel Printed Name

Date

IGA FCD 2020A008 PCN 699.21.33 PAGE 7 OF 9

CITY OF LITCHFIELD PARK
A Municipal Corporation

Approved and Accepted By:

May 20, 2020
Date

Attest:

May 20, 20200
Terri Roth, ‘CMC, City Clerk Date

The foregoing Intergovernmental Agreement FCD 2020A008 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 Litchfield Park under the laws of the State of Arizona.

ee Kos hie AG
NS

Gust Rosenfeld, City Attorney
By: Susan D. Goodwin

May 21, 2020
Date

IGA FCD 2020A008 PCN 699.21.33 PAGE 8 OF9

Exhibit A: Vista Verde Drive Drainage Improvement Project

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IGA FCD 2020A008 PCN 699.21.33 PAGE 9 OF 9