IGA 2022A019 DETROITBASIN (SIGNED BY CHANDELR).PDF

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Flood Control District of Maricopa County
2801 West Durango Street

Phoenix, AZ 85009-6399

INTERGOVERNMENTAL AGREEMENT
between the
Crry OF CHANDLER
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
fot the
CONSTRUCTION, CONSTRUCTION MANAGEMENT, OPERATION & MAINTENANCE
of
DETROIT BASIN AREA DRAINAGE IMPROVEMENTS

IGA FCD 20224019
Agenda Item

This Intergovernmental Agreement (Agreement) is entered into by and between the City of Chandler, 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
Agteement 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, to enter into this Agreetnent and has authorized the
undersigned to execute this Agreement on behalf of the CITY.

BACKGROUND

3. The City of Chandler Storm Water Master Plan Update was completed in 2006 and recommended several
improvements that would provide a regional flood control benefit by reducing flooding at various locations
within downtown Chandler,

4. In July 2007, the CITY submitted the project to the District’s Capital Imptovement Progam (CIP)
Prioritization Procedure for fiscal year 2008-2009 which received a favorable rating and was recommended
for inclusion in the future CIP budgets.

IGA FCD 2022A019 PCN 022,01,32 PAGE 1 OF9

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On May 21, 2008, the Boatd of Directors of the DISTRICT adopted Resolution FCD 2008R004 (C-69-
08-058-6-00), authorizing the DISTRICT to negotiate and prepare Intergoveramental Agreements for the
cost-sharing, design, rights-of-way acquisitions, construction, construction management, and future
operation and maintenance of Central Chandler Storm Drain Improvements.

In 2009 the CITY completed the Downtown Chandler Drainage Improvements Candidate Assessment
Report (CAR) to further define the recommended improvements.

In May 2021 the CITY and the DISTRICT entered into IGA FCD 2021A001 for the design, rights-of-way
acquisition, and utility relocations for the Detroit Basin Area Drainage Improvements, and on October 19,
2022, the CITY submitted 60% design documents to the District for review.

This Agreement is for the construction, construction management, operation & maintenance of the Detroit
Basin area Drainage Improvements (herein known as the PROJECT) which will consist of storm drain and
other conveyance improvements in the vicinity of the Detroit Basin 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.

PURPOSE OF THE AGREEMENT

This Agreement identifies and defines the responsibilities of the DIST'RICT and the CITY, for PROJECT

activities related to construction, construction management, operation & maintenance.
TERMS OF AGREEMENT
The PROJECT, as referenced herein, is described in section 8 of this Agreement.

The PROJECT COST, as referenced herein, solely encompasses the following costs directly associated
with the PROJECT activities and incurred after the effective date of this Agreement: which are costs of
construction, construction management, material testing, post-design services and construction surveying
support related to the PROJECT.

The following are specifically excluded from the calculation of PROJECT COSTS:

12.1 Any costs associated with non-flood control features added to the construction at the CITY’s
request. Such costs shall be funded solely by the CITY.

12.2 The personnel and internal administrative costs associated with this PROJECT incurred by cach
PROJECT PARTNER, including costs associated with the issuance of PROJECT permits, unless
specifically identified otherwise in this Agreement.

The PROJECT COST is estimated to be $9,000,000.

13.1 The PROJECT COST is estimated based on the best information available at the time of this
Agreement and is subject to change without amendment to this Agreement. In the event PROJECT
COSTS exceed the estimated amount, each PROJECT PARTNER shall be notified of such increase
and, unless objection is provided, the PROJECT COST will be deemed amended with such
additional costs being shared according to the same formula as is applicable to the PROJECT
COSTS.

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.

IGA FCD 2022A019 PCN 022.01.32 PAGE 2 OF 9

15. CITY funding for this PROJECT is available as identified in the CITY’s Capital Improvement Plan,
16. The CITY shall:
16.1 Fund 35% of the PROJECT COST, making the CIT'Y’s estimated share $3,150,000.

16.2 Serve as the lead agency for the PROJECT construction, construction management, material testing,
sutveying, and post-design services.

16.2.1 Ifthe construction management services are provided via CITY staff, then the construction
management cost shall be assigned a value of eight percent (8%) of the actual construction
cost.

16.3 PROJECT COSTS for construction will be invoiced to the DISTRICT for 50% of its cost share at
the time of award of the construction contract, and the remaining 50% at the completion of the
contract including any change orders. If construction is phased, periodically invoice the DISTRICT
for its share, based on actual PROJECT COST incurred.

16.4 Serve as the lead agency for any PROJECT public involvement activities.
16.5 Obtain DISTRICT review and concurrence on construction change orders.

16.6 Be responsible for assuring the safety and appropriateness of any non-flood control uses of the
PROJECT prior to offering to make or making the PROJECT available for such uses.

16.7 Obtain DISTRICT review and comments on the design and/or construction of any future
modifications to the PROJECT and resolve and/or incorporate the DISTRICT’s comments into
these future PROJECT modifications.

16.8 Invite the DISTRICT to all progress meetings and inspections.
16.9 Be responsible for all operations and maintenance of the PROJECT.

16.9.1 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 repait and replacement of
the flood control structures.

16.9.2 Schedule, and invite the DISTRICT to participate in, an annual inspection of the PROJECT.
Any deficiencies relating to flood control for which the CITY is responsible shall be
corrected by the CITY within 30 calendar days. If the CITY has not taken corrective action
within this time, the DISTRICT reserves the right to petform the corrective action and the
CITY shall reitaburse the DISTRICT for the total costs incurred by the DISTRICT within
thirty 30 calendar days of receipt of an invoice from the DISTRICT.

16.9.3 On an annual basis, commencing on the first anniversary date of the completion and
acceptance of the PROJECT, the CITY will provide written notification to the DISTRICT
that the PROJECT has been properly maintained by the CITY over the past yeat in
accordance with the PROJECT design intent and to ensure proper hydraulic function.

IGA FCD 20224019 PCN 22.01.32 PAGE 3 OF 9

17. The DISTRICT shall:

17.1 Fund 65% of the PROJECT COST, making the DISTRICT’s estimated share $5,850,000.

17.2 Subject to the availability of funding, within 30 calendar days of receipt, pay all invoices issued by
the CITY in accordance with the ters of this Agreement.

17.3 Participate in PROJECT public involvement activities.
17.4 Participate in a final inspection of the PROJECT with the CITY.
17.5 Participate, as desired by the DISTRICT, with the CITY in an annual inspection of the PROJECT.

17.6 Provide review and comments on post-design or post-construction changes or modifications to the
PROJECT that may affect the hydraulic function of the PROJECT.

18. Hach PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:
18.1 Comply with A.R.S. Sections 41-4401 and 23-214(A).
18.1.1 Hach party to this Agreement retains the legal right to inspect the records of the CITY’s and

any contractors’ or subconttactors’ employees performing work under this Agreement to
verify compliance with A.R.S. Sections 41-4401 and 23-214(A).

18.1.2 Failure by either patty to this Agreement to comply with A.R.S. Sections 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 Require that any contractor selected for the PROJECT:

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

18.2.2 Agree that a breach of the warranty under paragraph 18.2.1 shall be deemed a material
breach of contract and is subject to penalties up to and including termination of the contract;

18.2.3 Agree that the PROJECT PARTNERS tetain 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 watranty under paragraph 18.2.1.

18.2.4 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 ot services from Israel. ‘This certification does not apply to a boycott prohibited by
50 U.S.C, Section 4842, or a regulation issued pursuant to 50 U.S.C. Section 4842.

18.2.5 Warrant and certify that it does not currently, and agrees for the duration of the contract
that it will not, use:

18.2.5.1.1 The forced labor of ethnic Uyghurs in the People’s Republic of China.

18.2.5.1.2 Any goods or services produced by the forced labor of ethnic Uyghurs in the
People’s Republic of China.

IGA FCD 2022A019 PCN 022.01.32 PAGE 4 OF 9

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18.2.5.1.3 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 Contractor becomes aware during the term of the Agreement that the Contractor is not
in compliance with this paragraph, the Contractor shall notify the County within five (5)
business days after becoming aware of the noncompliance. Failure of the Contractor to
provide a written certification that the Contractor has remedied the noncompliance within one
hundred eighty (180) days after notifying the public entity of its noncompliance shall result in
the termination of this Agreement unless the Term of this Agreement shall end prior to said
one hundred eighty (180) day period.

18.3 Have the right, following mutual 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.

18.4 Agree to use their best efforts and enter into good faith negotiations to resolve any disputed iterns
of this Agreement. However, this shall not limit the rights of the PROJECT PARTNERS to seek
any remedies provided by law.

18.5 Take reasonable and necessaty 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.

18.6 Agree to equally share the cost of PROJECT compliance and cost audit to be initiated within 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 45 days of the audit findings by the PROJECT PARTNERS.

The PROJECT may be phased due to funding or other coordination issues. Responsibilities of the
DISTRICT and the CITY shall be phased accordingly, including, but not limited to, invoicing,
reimbursements, and transfer of land rights.

If mutually acceptable to the PROJECT PARTNERS, PROJECT invoicing may be conducted periodically
based on actual PROJECT COSTS incurred, no more frequently than quarterly, and no less frequently
than annually, in liew of invoicing timelines otherwise established in this Agreement.

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 claitn 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 Indemnitos’s obligation to pay shall be limited to the
amount Indemnitee has paid or would be obligated to pay in the absence of any agteement to
indemnify. Should any PROJECT PARTNER offer to make or make the PROJECT available for any

IGA FCD 2022A019 PCN 022,01.32 PAGE 5 OF 9

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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 without
limitation, Such indemnification obligation is intended to be a specific indemnity obligation rather than
the general indemnity obligations set forth in this patagraph 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 ox litigation.

All notices or demands upon any party to this Agreement shall be in writing and shall be delivered in person
ot sent by mail addressed as follows:

Flood Control District of Maticopa County
Director

2801 West Durango Street

Phoenix, AZ 85009-6399

City of Chandler

City Manager

Mail Stop 605

P.O. Box 4008

Chandler, Arizona 85244-4008

This Agreement shall expire either (a) 10 years from the effective date, ot (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 patties, this
Agreement may be amended or terminated. The operation, maintenance, and indemnification provisions,
of this Agreement, shall survive the expiration of this Agreement.

This Agreement is subject to cancellation by any patty pursuant to the provisions of A.R.S. Section 38-511.
Attached to this Agreement or contained herein ate the written determinations by the appropriate attorneys
for the patties 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.

If legislation is enacted after the effective date of this Agreement that changes the relationship or structure

of one or mote parties to this Agreement, the patties agree that this Agreement shall be renegotiated at the
written request of any party.

SIGNATURE PAGES FOLLOW

IGA FCD 2022A019 PCN 022.01.32 PAGE 6 OF 9

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

Recommended by:

Scott Vogel, P.E. Date
Chief Engineer/General Manager

Approved and Accepted:

By:
Chairman, Board of Directors Date

Attest:

By:
Clerk of the Board Date

The foregoing Agreement FCD-2022A019 has been reviewed pursuant to Arizona Revised
Statutes § 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

IGA FCD 2022A019 PCN 022.01.32 Page 7 of 9

CITY OF CHANDLER
A Municipal Corporation

, Los hath:

MAYOR Date
Attest:
By: C\.2f — GLALS.
k - Dana PeLong, City Clerk Date

The foregoing Intergovernmental Agreernent IGA BCD 20228019, has been reviewed pursuant to ARS.
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 Chandler under the laws of the State of Arizona.

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY

Aww Aver

Kelly Schwab, City Attorney qe Date

IGA ECD 2022A019 PCN 022.01.32 PAGE 8 OF 9

IGA FCD 2022A019

EXHIBIT A
Drainage Improvements*

.
Detroit

|Proposed Storm Drain
eplacement

Existing 54" Storm Drain i

*Approximate Locations

IGA FCD 2022A019 PCN 022.01.32 PAGE 9 OF 9