GILA BEND FLOODED PROPERTIES ACQUISITION IGA FCD 2021A013 FINAL.DOCX
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IGA FCD 2021A013
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Intergovernmental Agreement
between the
Town of Gila Bend
and the
Flood Control District of Maricopa County
for the
Gila Bend Flooded Properties Acquisition Project
IGA FCD 2021A013
Agenda Item:____________________________
This Intergovernmental Agreement (Agreement) is entered into by and between the Town of
Gila Bend, a municipal corporation and political subdivision of the State of Arizona, hereinafter
called the TOWN, acting by and through its Common Council, hereinafter called the
COUNCIL, and the Flood Control District of Maricopa County, hereinafter called the
DISTRICT, a political subdivision of the State of Arizona, acting by and through its Board of
Directors, hereinafter called the BOARD. The TOWN and DISTRICT are hereinafter
collectively called the PROJECT PARTNERS.
This Agreement shall become effective as of the date it has become fully executed by the
PROJECT PARTNERS.
STATUTORY AUTHORIZATION
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1.
The TOWN is empowered by Arizona Revised Statutes (A.R.S) Sections 11-951 and
11-952, as amended, and A.R.S. Section 9-137, as amended, to enter into this
Agreement and has authorized the undersigned to execute this Agreement on behalf
of the TOWN.
2.
The DISTRICT is empowered by A.R.S. Section 48-3603, as revised, to enter into
this Agreement and has authorized the undersigned to execute the Agreement on
behalf of the DISTRICT.
3.
The DISTRICT was established in accordance with the provisions of A.R.S. Title 48,
Chapter 21, which requires the BOARD to identify flood problems and plan for the
construction of facilities to eliminate or minimize flooding problems in Maricopa
County.
4.
A.R.S. 48-3603 grants authority to the BOARD to acquire real and personal property
within the boundaries of the DISTRICT for the benefit of the DISTRICT.
5.
On September 18, 2002, the BOARD adopted the DISTRICT’s Comprehensive Plan
2002, Flood Control Program, the Floodprone Properties Acquisition Program, as a
component of the DISRTICT’s Action Plan which details activities to protect
properties from flooding.
6.
On July 30, 2003 the BOARD adopted Resolution FCD 95-01A (C-69-03-084-6-
00), which authorizes the DISTRICT to amend the Alternative Flood Control Works
Program as adopted by Resolution FCD 95-01 on September 6, 1995 (PW67B), and
authorizes the Chief Engineer and General Manager of the DISTRICT to utilize the
Floodprone Properties Acquisition Program (FPAP) in place of the Alternative
Flood Control Works Program.
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7.
On October 4, 2006 the BOARD adopted Resolution FCD 2006R003 (C69-07-016-
6-00), Floodprone Properties Assistance Program (FPAP), which amended
Resolution FCD 95-01A, and allows for flood proofing of residential structures
located in flood prone areas where standard structural or non-structural Capital
Improvement Program projects are determined to be unfeasible, and also authorized
the Chief Engineer and General Manager of the DISTRICT to negotiate and prepare
intergovernmental agreements with local jurisdictions for property acquisition under
the FPAP; to update and revise the FPAP as required and present any proposed
revisions to the BOARD for review and approval; and to include funds in the
DISTRICT’s current and future five-year Capital Improvement Program Budgets for
property acquisition under the FPAP, subject to prioritization by the DISTRICT and
subsequent approvals by the BOARD.
8.
On March 25, 2015 the BOARD adopted Resolution FCD 2006R003A (C-69-07-
016-6-01), amendment to Resolution FCD 2006R003, Floodprone Properties
Assistance Program Revision 1, which put a limit on the total cost to the DISTRICT
for acquisition including relocation of any single residence not to exceed twice the
latest median value for the previous tax year for residential properties as determined
by the Maricopa County Assessor’s Office (Assessor).
BACKGROUND
9.
On August 13 and 14, 2021, rains in and around the Town of Gila Bend caused
flooding of numerous homes and businesses. A cluster of homes in the floodways of
Scott and Sand Tank Washes were heavily impacted by the flooding.
10. The TOWN and the DISTRICT concur that acquiring the most severely flooded
properties, relocating the residents to safer dwellings, demolishing the structures
occupying several of the properties, and converting the properties to perpetual open
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space is a cost-effective and permanent solution to the flooding hazard posed by the
location of the structures in floodway.
11. The TOWN and the DISTRICT have identified certain properties within the floodway of
Scott, Sand Tank and Bender Washes (the “PROPERTIES”) for possible purchase. The
PROPERTIES were severely flooded and/or are likely to experience repetitive flooding in
the future.
PURPOSE OF AGREEMENT
12. The purpose of this Agreement is to identify the responsibilities of the TOWN and
the DISTRICT for the potential acquisition of the PROPERTIES, relocation of the
residents, and demolition of residential and accessory structures on the
PROPERTIES for the Gila Bend Flooded Properties Acquisition Project, hereinafter
called the PROJECT, and the eventual ownership and maintenance responsibilities
by the TOWN for the underlying parcels following completion of the PROJECT.
TERMS OF AGREEMENT
13. In consultation with the TOWN, the DISTRICT will act as lead agency for the
PROJECT in contacting the owners, soliciting applications from owners who want to
consider possible conveyance of the flooded residences to the DISTRICT, and acting
as the point-of-contact for property owners and tenants.
14. By Resolution, the Board of Directors of the DISTRICT will identify the specific
properties to be included in the PROJECT, and that Resolution shall be deemed to
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be an amendment to this Agreement for the sole purpose of identifying the
PROPERTIES ultimately purchased.
15. The DISTRICT will negotiate with owners of the PROPERTIES for possible
acquisition and consummate the acquisitions if agreements can be reached for
purchase or donation. The DISTRICT will record deed restrictions on property so
acquired to perpetually limit their use to open space and flood control purposes.
16. The DISTRICT will solicit and receive applications submitted by owners of the
PROPERTIES and generally follow the DISTRICT FPAP policy and procedures
leading to a purchase, with the following exceptions: (A) Flood Hazard Scoring &
Ranking will not be done since the identified dwellings have demonstrable flood risk
and are not subject to competitive prioritization among dwellings county-wide as is
normally the case in the regular FPAP; (B) the normal requirement for dwellings to
be currently occupied shall not apply since some of the homes have been rendered
uninhabitable by the flooding event of August 13 and 14, 2021 and (C) the
properties will be appraised in their assumed condition prior to the flooding event of
August 13 and 14, 2021.
17. Upon receipt and review of the applications, the DISTRICT will obtain title reports
and appraisals and determine the fair market value of the properties, at the
DISTRICT’s expense, prepare and submit offers-to-purchase to the owners for the
properties included in the applications that are identified for possible purchase by
the DISTRICT, subject to the owners’ acceptance or rejection within forty-five (45)
days of the owner’s receipt of the offer, and obtain BOARD approval to complete the
purchases of properties the owners of which have voluntarily accepted an offer-to-
purchase. Thereafter the DISTRICT shall:
17.1 Consummate the authorized purchases pursuant by Resolution with a
preliminary estimated cost of $3.6M;
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17.2 Coordinate with the TOWN and with owners and tenants on move-out
schedules;
17.3 Pay owners and tenants for their actual moving costs and any additional
payments allowed under FPAP policy.
18. The DISTRICT will conduct asbestos and lead paint surveys and asbestos and lead
paint remediation of acquired structures, as necessary, following the residents’
departure.
19. The DISTRICT will acquire and demolish the structures and restore the sites.
20. The DISTRICT and the TOWN will inspect the PROJECT following demolition and
site restoration.
21. Following completion of the PROJECT the DISTRICT will transfer ownership of
properties acquired by the DISTRICT as part of this PROJECT to the TOWN, and
the TOWN will assume responsibility for maintenance and operations of all
properties acquired as part of this PROJECT.
22. The DISTRICT will record a deed with restrictions, in the form provided in Exhibit
A, on property transferred to the TOWN to perpetually limit their use to open space
and flood control purposes and any recreational purposes the TOWN may elect to
authorize, at its sole cost and expense, so long as that use is compatible with the
properties’ open space and flood control designation.
23. The DISTRICT and the TOWN will each be responsible for its own administrative
costs associated with the PROJECT.
24. Any local permits required for the PROJECT that are issued by either PROJECT
PARTNER shall be issued at no cost to the PROJECT.
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25. The TOWN will assist the DISTRICT in obtaining any permits required by or issued
by the TOWN.
26. The PROJECT PARTNERS shall require any contractors selected for the PROJECT
to:
26.1 Warrant its compliance with all federal immigration laws and regulations that
relate to employees and their compliance with A.R.S. Section 23-214(A);
26.2 Agree that a breach of the warranty under paragraph 26.1 shall be deemed a
material breach of contract and is subject to penalties up to and including
termination of the contract;
26.3 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 26.1.
27. Either PROJECT PARTNER may, with mutual written agreement of the other
PROJECT PARTNER, delegate responsibilities to another party. Any delegation,
however, shall not relieve the delegating PROJECT PARTNER of its original
responsibilities as defined herein.
28. Each PROJECT PARTNER certifies that has disclosed to the other PROJECT
PARTNER any known or 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.
29. In case of any disputes over any items in this Agreement, the PROJECT PARTNERS
agree to use their best efforts and enter into good faith negotiations to resolve
disputed matters. However, this shall not limit the rights of the PROJECT
PARNTERS to seek any remedies provided by law.
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30. Each party to this Agreement shall, as “Indemnitor,” to the extent permissible by law,
indemnify, defend and hold harmless the other Project Partner (“Indemnitee”)
including agents, officers, directors, governors 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 or omission of Indemnitor pursuant to
this Agreement, 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 the TOWN offer to make
or make the PROJECT available for any non-flood control uses, the TOWN 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 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.
31. Each PROJECT PARTNER:
31.1 Shall comply with A.R.S. Sections 41-4401 and 23-214(A). Failure by either
PROJECT PARTNER to comply with A.R.S. Sections 41-4401 and 23-214(A)
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shall be deemed a breach of this Agreement and is subject to penalties up to and
including termination of this Agreement.
31.2 Retains the legal right to inspect the records of the other PROJECT PARTNER
and any contractors’ or subcontractors’ employees performing work under this
Agreement to verify compliance with A.R.S. Sections 41-4401 and 23-214(A).
32. All notices and 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
Town of Gila Bend
Director
Town Manager
2801 West Durango Street
P.O. Box A
Phoenix, Arizona 85009-6399
Gila Bend, Arizona 85337
33. This Agreement shall expire either (a) two years form the date of execution by all
PROJECT PARTNERS, or (b) upon completion of the PROJECT and transfer of
ownership of properties acquired as part of this PROJECT to the TOWN, whichever
is 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.
34. This Agreement is subject to the provisions of A.R.S. Section 38-511.
35. 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.
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36. If 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.
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FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
A Political Subdivision of the State
Recommended by:
___________________________________________
Michael A. Fulton
Date
Director
Approved and Accepted:
By:
________________________________
Chairman, Board of Directors
Date:
Attest:
By:
________________________________
Clerk of the Board
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Date:
The foregoing Intergovernmental Agreement FCD 2021A013 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
Date
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TOWN OF GILA BEND
A Municipal Corporation
Approved and Accepted By:
_______________________________
Chris Riggs
Date
Mayor
Attest:
By:
________________________________
Beverly Turner
Date
Town Clerk
The foregoing Intergovernmental Agreement FCD 2021A013 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 the Town of Gila Bend under the laws
of the State of Arizona.
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_________________________________
Steve McClure
Date
Town Attorney
EXHIBIT A
The DEED
[DATE]
When recorded, Interoffice Mail to:
Maricopa County
Real Estate Services
2801 W. Durango St.
Phoenix, AZ 85009 (LLA)
EXEMPT ARS § 11-1134, A3
C-XX-XX-XXX-X-XX
SPECIAL WARRANTY DEED
Project: Floodprone Properties Assistance Program
FCD Parcel #: [XXX]
Assessor's Parcel No.: XXX-XX-XXX
The Flood Control District of Maricopa County, a political subdivision of the State of Arizona,
GRANTOR, for the sum of Ten Dollars ($10.00) and other valuable consideration, receipt and
sufficiency of which are hereby acknowledged, paid by THE TOWN OF GILA BEND, a
municipal subdivision of the Stare of Arizona, GRANTEE, by this Deed does grant, sell, and
convey unto GRANTEE , all that certain real property situated in the County of Maricopa, State
of Arizona, described as follows:
See Attached Exhibit “A”
Attached hereto and incorporated herein
The GRANTOR hereby conveys unto GRANTEE all warranties of title for its acts and not the
acts of others, of any nature whatsoever.
This property is conveyed subject to assessments, reservations, easements, rights-of-way, and
deed restrictions as may appear on record.
As required by ARS § 48-3603.I, if all or a part of this property is subsequently sold by THE
TOWN OF GILA BEND as undeveloped property for a price exceeding the original sale price,
the District shall be paid the difference between the original price and the subsequent sale price.
Per IGA FCD [XXXX], this property shall be used by THE TOWN OF GILA BEND only for the
purpose of open space, flood control purposes and any recreational purposes the TOWN OF
GILA BEND may elect to authorize so long as the use is compatible with the properties' open
space and flood control designation. Should the property cease to be used for this purpose within
500 years from the date of the deed, in accordance with A.R.S. §14-2901, title to the property
shall automatically revert to the GRANTOR.
GRANTEE:
By: __________________________________________
Its: __________________________________________
STATE OF ARIZONA
COUNTY OF MARICOPA
The foregoing instrument was acknowledged before me the _____day of______________ 20__, by
____________________________, GRANTEE.
My Commission Expires:
________________________________________
Notary Public