2022A007 -IGA- BASELINE EAST OF SIGNAL BUTTE PDF.PDF

Intergovernmental Agreement
for the

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

Baseline East of Signal Butte
between the
City of Mesa
and the
Flood Control Disttict of Maricopa County

IGA FCD 2022A007

Agenda Item

This Intergovernmental Agreement (this “Agreement”) is entered into by and between the Flood
Control District of Maticopa County, a political subdivision of the State of Atizona, acting by and
through its Board of Directors (the “DISTRICT”), and the City of Mesa, 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 (AR.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) and A.R.S. §11-952, as amended, to enter into this
Agreement and has authorized the undersigned to execute this Agreement on behalf of the
CITY.

BACKGROUND

3. On October 19, 2022 the Board of Directots of the DISTRICT (the Board) adopted Resolution
FCD 2022R003 (C-69-23-013-X-00) authorizing the DISTRICT to cost-share in projects
recommended under the DIST'RICT’s Small Project Assistance Program.

4. Under the DISTRICT’s Small Project Assistance Program for Fiscal Year 2023, the CITY
proposed the Baseline East of Signal Butte Project (the “PROJECT”) to provide the following
benefits:

IGA FCD 20224007 PCN 699.23.34 PAGE 1 OF 9

4.1 Reduce the flood hazard to a property that has experienced historic flooding.

5. The PROJECT has been recommended by DISTRICT staff for the Fiscal Year 2023 program.

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, tights-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 requited to accomplish the benefits enumerated in
patagraph 4 of this Agreement. Features of the PROJECT, as envisioned at the time of this
Agreement, are represented in Exhibit A but ate subject to change without amendment to this
Agreement,

8. PROJECT DESIGN AND 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, 2022 and June 30, 2024.

8.1 The following costs are expressly excluded from the PROJECT DESIGN AND
CONSTRUCTION COST shated under this Agreement:

8.1.1 Costs associated with tights-of-way acquisition, petmitting, construction
management (including materials testing and survey work), operations and
maintenance.

8.1.2 Costs associated with multi-use, landscaping ot 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 $903,935,
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, 2022 and June 30, 2024, 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 $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.

IGA FCD 2022A007 PCN 699.23.34 PAGE 2 OF 9

10.

9.2 Reimburse the CITY pet the tetms of this Agreement within thirty (30) days of receipt of
an invoice from the CITY for its share of the PROJECT DESIGN AND
CONSTRUCTION COST.

9.3 Participate in a final inspection of the completed PROJECT with the CITY.

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 $403,935 and CITY will fully fund all PROJECT costs
for any work completed and invoiced before July 1, 2022 or after June 30, 2024,

10.2 Fully and solely pay any payment required that does not fall within the definition of
PROJECT DESIGN OR 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 thiety (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 0) days of completion of construction of the PROJECT, but no later
than June 30, 2024, prepate a final accounting including change order costs not
previously paid, and invoice the DISTRICT for the remainder of its share of the
PROJECT DESIGN AND CONSTRUCTION COST incutred, 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. 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 Consttuct 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 ate not

IGA FCD 2622A007 PCN 699,23,34 PAGE 3 OF 9

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

10.15 Require that any contractor selected for the PROJECT:

10.15.1 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);

10.15.2 Agree that a breach of the warranty under paragraph 10,15.1 shall be deemed a
material breach of contract and is subject to penalties up to and including
termination of the contract;

10.15.3 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
patagraph 10.15.1;

10.15.4 Who engages in for-profit activity and has 10 ot 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 or setvices ftom Israel. This certification does not apply to a
boycott prohibited by 50 U.S.C. Section 4842, or a regulation issued pursuant to 50
US.C. Section 4842,

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

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

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

10.15.5.3 Any contractots, subcontractors, or suppliers that use the forced labor or
any goods or setvices ptoduced 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 tesult in the termination of this Agreement unless the Term of
this Agreement shall end prior to said one hundred eighty (180) day period.

IGA FCD 2022A007 PCN 699.23.34 PAGE 4 OF 9

11.

12.

13.

14.

15.

16.

17.

18.

Any local permits required for the PROJECT that are issued by either PROJECT PARTNER
shall be issued at no cost to the PROJECT.

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 Dischatge Elimination
System ot any other applicable dischatge 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
tesulting from the indemnitot’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. Indemunitee 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
Agreement.

IGA FCD 20224007 PCN 699,.23.34 PAGE 5 OF 9

19.

20.

21,

22,

23.

18,2 Retains the legal right to inspect the records of the other PROJECT PARTNER’s and any
contractots’ 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 Mesa
Director City Manager
2801 West Durango Street P.O. Box 1466
Phoenix, Arizona 85009-6399 Mesa, AZ 85211

This Agreement shall expire cither (a) two yeats from the date of execution by all PROJECT
PARTNERS, of (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
approptiate 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.

if legislation is enacted after the effective date of this Agreement that changes the relationship or
structure of one of more PROJECT PARTNERS, the PROJECT PARTNERS agtce that this
Agreement shall be renegotiated at the written request of either PROJECT PARTNER.

IGA FCD 2022A007 PCN 699.23.34 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 and General Manager

Approved and Accepted:

By:
Chairman, Board of Ditectors Date
Attest:

By:
Clerk of the Board Date

The foregoing Intergovernmental Agreement FCD 2022A007 has been reviewed pursuant to ARS.
Section 11-952, as amended, by the undersigned General Counsel, who has determined that it is in
ptoper form and within the powers and authority granted to the Flood Conttol District of Maricopa
County under the laws of the State of Atizona.

Genetal Counsel Date

IGA FCD 20224007 PCN 699.23.34 PAGE 7 OF 9

CITY OF MESA
A Municipal Corporation

Approved and Accepted By:

[; Vy | Bre eho Cet.’3

City [bbl] "Date

Attest:

By: A, ole (Mors. gfh af 23

City Gietk 7

The foregoing Intergovernmental Agreement FCD 2022A007 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 Mesa under the laws of the State of
Arizona.

o* av ails

IGA FCD 2022A007 PCN 699.23.34 PAGE 8 OF 9

Exhibit A: Baseline East of Signal Butte

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IGA FCD 2022A007 PCN 699,23.34

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