BOD IGA -2023A002 IGA STAPLEY DR. BROADWAY RD. DRAINAGE IMPROVEMENTS.PDF

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Flood Control District of Maricopa County
2801 West Durango Street

Phoenix, AZ 85009-6399

INTERGOVERNMENTAL AGREEMENT
between the
City of Mesa
and the
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY
for the
CONSTRUCTION, CONSTRUCTION MANAGEMENT, OPERATION & MAINTENANCE
of
STAPLEY DRIVE AND BROADWAY ROAD DRAINAGE IMPROVEMENTS

IGA FCD 2023A002

Agenda Item

This Intergovernmental Agreement (Agreement) is entered into by and between the City of Mesa, 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
Agreement and has authorized the undersigned to execute this Agreement on behalf of the DISTRICT.

2. The CITY is empowered by A.RS. § 48-572 and Section 103 of the Mesa City Charter to enter into this
Agreement and has by resolution authorized the undersigned to execute this Agreement on behalf of the
CITY.

BACKGROUND

3. In 2008, the City of Mesa completed a Storm Drain Master Plan which identified several storm drain
systems within the City that warranted improvement.

4. In December 2022, the CITY submitted the Stapley Drive and Broadway Road project (as hereinafter
defined) to the District’s Capital Improvement Program (CIP) Prioritization Procedure for fiscal year 2022-
2023 and said project received a favorable rating and was recommended for inclusion in the future CIP

IGA FCD 2023A002 PCN 420.06.30 PAGE 1 OF9

10.

11.

12.

13.

14,

15.

budgets.

On May 10, 2023, the Board of Directors of the DISTRICT adopted Resolution FCD 2023R002 (C-69-
23-051-X-00), authorizing the DISTRICT to negotiate and prepare an Intergovernmental Agreement for
the cost-sharing, construction, construction management, and future operation and maintenance of the
Stapley Drive and Broadway Road Drainage Improvements (the PROJECT).

In January 2023, the CITY submitted 100% design documents to the DISTRICT for review.

This Agreement is for the construction, construction management, operation & maintenance of the
PROJECT which will consist of storm drains and other conveyance improvements in the vicinity of the
Stapley Drive and Broadway Road intersection in Mesa 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 DISTRICT 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 7 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 COST:

11.1 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.

11.2 The personnel and internal administrative costs associated with this PROJECT incurred by each
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 $3,500,000.

12.1. 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
COST exceed the estimated amount, each PROJECT PARTNER shall be notified of such increase
and, unless objection is provided, the PROJECT COST shall be deemed established with such
additional costs being shared according to the percentages set forth in this Agreement.

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.

CITY funding for this PROJECT is available as identified in the FY 2022 CITY’s Capital Improvement
Plan.

The CITY shall:

IGA FCD 2023A002 PCN 420.06.30 PAGE 2 OF 9

15.1 Fund 35% of the PROJECT COST, making the CITY’s estimated share $1,225,000.

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

15.2.1 If the construction management services are provided via CITY staff, then the construction
management cost shall be assigned a value not to exceed eight percent (8%) of the actual
construction cost.

15.3 Invoice the DISTRICT for 50% of the District’s share of the PROJECT COST at the time of award
of the construction contract, and the remaining 50%, including any change orders, at the completion
of the contract. If construction is phased, the City may periodically invoice the DISTRICT for its
share, based on actual PROJECT COST incurred.

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

15.6 Assure 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.

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

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

15.9.1 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,
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.

15.9.2 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 perform the corrective action and the
CITY shall reimburse the DISTRICT for the total costs incurred by the DISTRICT within
thirty 30 calendar days of receipt of an invoice from the DISTRICT.

15.9.3. 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 over the past year in accordance with
the PROJECT design and to ensure proper hydraulic function.
16. The DISTRICT shall:

16.1 Fund 65% of the PROJECT COST, making the DISTRICT’s estimated share $2,275,000.

IGA FCD 2023A002 PCN 420.06.30 PAGE 3 OF 9

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

16.3 Participate in PROJECT public involvement activities.

16.4 Participate in a final inspection of the PROJECT with the CITY.

16.5 Participate, as desired by the DISTRICT, with the CITY in an annual inspection of the PROJECT.

16.6 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.

17. Each PROJECT PARTNER, and the PROJECT PARTNERS collectively, shall:

17.1 Comply with A.R.S. Sections 41-4401 and 23-214(A).

17.1.1

17.1.2

17.2 Require

17.2.1

17.2.2

17.2.3

17.2.4

17.2.5

Each party to this Agreement retains the legal right to inspect the records of the CITY’s and
any contractors’ or subcontractors’ employees performing work under this Agreement to
verify compliance with Title 34 of the Arizona Revised Statutes, as well as A.R.S. Sections
41-4401 (as applicable) and 23-214(A).

Failure by either party to this Agreement to comply with Title 34 of the Arizona Revised
statutes, A.R.S. Section 41-4401, or A.R.S. Section 23-214(A) shall be deemed a breach of
this Agreement and is subject to penalties up to and including termination of the Agreement.

that any contractor selected for the PROJECT:

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);

Agree that a breach of the warranty under paragraph 17.2.1 shall be deemed a material
breach of contract and is subject to penalties up to and including termination of the contract;

Agree that the PROJECT PARTNERS retain 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 17.2.1.

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 or 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.

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

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

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

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.

IGA FCD 2023A002

PCN 420.06.30 PAGE 4 OF 9

18.

19.

20.

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.

17.3. Have the right, when approved by the other PROJECT PARTNER in writing 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.

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

17.5 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.

17.6 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 lieu 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 claim 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 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 any PROJECT PARTNER offer to make or make the PROJECT available for any
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 arising in whole
or in part from the sanctioned non-flood control use. Such indemnification obligation is intended to be a

IGA FCD 2023A002 PCN 420.06.30 PAGE 5 OF 9

21.

22.

23.

24.

25.

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.

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

Flood Control District of Maricopa County
Director

2801 West Durango Street

Phoenix, AZ 85009-6399

City of Mesa

City Manager

PO Box 1466

Mesa, AZ 85211-1466

This Agreement shall expire either (a) 10 years from the effective date, or (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 parties, 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 party pursuant to the provisions of A.R.S. Section 38-511.
Attached to this Agreement or contained herein are the written determinations by the appropriate attorneys
for the parties 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 more parties to this Agreement, the parties agree that this Agreement shall be renegotiated at the
written request of any party.

SIGNATURE PAGES FOLLOW

IGA FCD 2023A002 PCN 420.06.30 PAGE 6 OF 9

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

Recommended by:

Michel A. Fulton, Director Date

Approved and Accepted:

By:

Chairman, Board of Directors Date

Attest:

By:
Clerk of the Board Date

The foregoing Intergovernmental Agreement IGA FCD 2023A002 has been reviewed pursuant to ARS.
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.

Flood Control District General Counsel Date

IGA FCD 2023A002 PCN 420.06.30 PAGE 7 OF 9

er

CITY OF MESA
A Municipal Corporation

ta Brady, City Nang if

Attest:

etl, Morbo.

” Holy Moselff, City Clerk al Date

The foregoing Intergovernmental Agreement IGA FCD 2023A002, 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.

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY

Git Smith, City Attorney Date

IGA FCD 2023A002 PCN 420.06.30 PAGE 8 OF 9

IGA FCD 2023A002
EXHIBIT A

Stapley Drive and Broadway Road Drainage Improvements*

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Figure 1. Location Map

*Approximate Locations

IGA FCD 2023A002 PCN 420.06.30

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