HomeMy WebLinkAboutRES 23-38 RESOLUTION NO. 23-38
A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, AUTHORIZING THE CITY TO ENTER
INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE PINAL COUNTY
FLOOD CONTROL DISTRICT FOR THE SUPERSTITION BASIN FLOOD
CONTROL PROJECT.
WHEREAS, the City of Apache Junction ("City") and the Pinal
County Flood Control District ("District") desire to enter into
an intergovernmental agreement ("IGA") for the construction of a
detention basin intended to reduce flooding hazards impacting
residents and businesses known as the Superstition Basin (the
"Project") located roughly on the southeast corner or Idaho Road
and State Route 88; and
WHEREAS, pursuant to A.R.S. § 11-952 (A) , public entities
may enter into IGAs with other municipalities and governmental
entities for joint or cooperative activities; and
WHEREAS, the parties have crafted the attached written cost
sharing agreement (see Exhibit A) in the form of an IGA which
formalizes the arrangement; and
WHEREAS, the District will contribute 50% of estimated
basin construction cost with the City contributing the other
50%, with both entities paying $1, 633, 005. 45 .
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COUNCIL OF THE CITY OF APACHE JUNCTION ARIZONA, AS FOLLOWS:
1) The mayor and city council hereby approve the attached IGA
and the mayor is hereby authorized to sign the agreement on
behalf of the City.
2) The city manager and/or his designee is authorized and
directed to take all steps necessary to carry out the
purpose and intent of this resolution.
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
APACHE JUNCTION, ARIZONA, THIS DAY OF
2023.
SIGNED AND ATTESTED TO THIS DAY OF 2023 .
RESOLUTION NO. 23-38
PAGE 1 OF 2
P��/
vatffa,
Mayor
AT ` '
4JE� FE�R
RR A
City Clerk
APPROVED AS TO FORM:
R L ARD J. STERN
City Attorney
RESOLUTION NO. 23-38
'AGE 2 Off'
EXHIBIT
When Recorded Returnto:
Pinal County Flood Control District
Christopher Waaaker,PI ,CFCI
5 N Florence Street
PO Box 727
Florence,AZ 85132
IN,rrLRC,OVFRNMFNTAL AGREEMENT
For the
CONSTRUCTION,RUCTION, PE 'T O IN TENANCE
Of the
SUPERSTITION 13ASIN FLOOD CONTROL PROJ CT
Between the
CITY OF A PAC E JUNCTION
And the
PINAL COUNTv FLOOD CONTROL DISTRICT
Agenda Item
This INTERGOVERNMENTAL AGREEMENT "Agreement" is entered into by and arnon
FINAL COUNTY FLOOD CONTROL,FOOL, ISTI ICT, a political subdivision of the State, acting
by and through its Board of Directors(hereinafter referred to as"DISTRICT')and the CITE` OF
APACHE JUNCTION,an Arizona municipal corporation (hereinafter referred to as "AP CH
JUNCTION")., DISTRICT and APACHE JUNCTION are hereinafter collectively called the
"PROJECT PARTNERS"or the`Parties"collectively,or as a "Party" individually.
This Agreement shall becon e effective as of the Mate it has been executed by all parties and shall
be recorded with the Final County Recorder's Office.
RECITALS
I, The DISTRICT is empowered by Arizona Revised Statutes "A.R.S." 4 -3603, as
amended, to enter into this Agreement and has authorized the undersigned to execute this
Agreement on behalf of th DISTRICT.
2. A.PACHE JUNCTION is empowered by Arizona Revised Statutes "A.R..S."I §§ 9-240 and
11-951 el. secs¢ to enter into this Agreement and has authorized the undersigned to execute
this Agreement on behalf ofAPA.CHE JUNCTION:
I
1 The stormwater flows in Goldfield Wash originate in the C rohai and Superstition Mountains
in northeast APACHE JUNCTION and surrounding i incor orat Pinal County. The
contributing watershed flows front northeast to southwest and crosses through the rural
suburban, and urban areas of APAC14E JUNCTION. Flooding from the wash in low-lying
areas of APAC E JUNCTION is seasonal. The wash is hydraulically active and routinely
contributes to significant sediment transport which is commonly deposited within stormwater
infrastructure and on roadway crossings downstream of State Route 88:
4. The flooding areas create challenging problems for development and redevelopment:'
The DISTRICTand AP ACHE HE JUNCTION partnered on the design for proposed detention
basin intended to reduce flooding hazards impacting residents and businesses known as the
SUPERSTITION BASIN,hereinafter the "PROJECT".
The P OJEC*T site is approximately bound by State Route 88 to the north and west,Scenic
Strut to the south,and the Winchester Road alignment to the east and is primarily contained
within APN 101-I -026C ,owned byPinal County,within APA:C EJU C;TION,Township
I North, Range 8 East,Section 21 (See Exhibit A),
T The PROJECT seeks to mitigate flooding and other significant stormwater impacts and
sediment transport within existing stormwater infrastructure, in order to provide downstream
risk mitigation.The PROJECT will enhance roadway safety and reduce destruction of critical
infrastructure,while decreasing the burden of post storm cleanup services.
The purpose of this Agreement is to identify and define the responsibilities ofthe PROJECT
PARTNERS, for the construction,operation,and maintenance of the PROJECT,
AGREEMENT
A) Construction costs associated with the PROJECT are estimated to be 3,26 ,010.90.
B) APACI- E JUNC}TION's obligations:
I Reimburse fifty percent 50%) of the construction costs incurred for the
PROJECT based on reimbursement requests from the DISTRICT as set forth in
Section C below.
) Within thirty 30) calendar days of receipt of a reimbursement request from the
DISTRICT for APAC E JUNCTION's share of the PROJECT cast, reimburse
the DISTRICT per the terms of this Agreement. Upon final inspection of the
PROJECT, APAC HE JUNCTION will reirnburse the DISTRICT for APACHE
[.NCTIO 's share of the remaining costs which have not been previously paid.
3 Exclude from the PROJECT the following costs:
a) Personnel and administrative costs incurred by either° PROJECT
PARTNER,and
b) Casts associated with permitting and construction management.
44) grant the DISTRICT permits at no cost for PROJECT-related activities within
APACHE JUNCTION rights-of-way or easements.
) Participate in a final inspection of the completed PROJECT with the DISTRICT.
6) Be responsible for operation and maintenance ofthe completed PROJECT,as
follows;
a) Perform maintenance activities to include,but not limited to: maintaining
the flood control function of the PROJECT, with vegetation control and
removal, debris and sediment removal, earth ba kfill to address soil
removal,riprap replacement,etc;
b) Conduct inspections of the completed PROJECT annually and
immediately following storm events meeting or exceeding the PROJECT
design level:
7) Be responsible for obtaining any necessary land rights and permitting for storage
or deposition of spoils from the excavation of the basin.
C) The DISTRICT obligations:
I) Construct the PROJECT using DISTRICT funds and submit progress invoices to
APACHE JUNCTION for reimbursement according to the terms in this
Agreement. Reimbursement may be requested every thirty 0 calendar days
during construction. Construction will include, but not be limited to. costs for
survey and materials testing to adequately determine location, grade and
compaction requirements.
Serve as the lead agency for the PROJECT,
) Contract for construction services to satisfy the intent of the PROJECT using a
procurement process authorized by A.R.S.Title 41.
) Provide sufficient DISTRICT staff to manage and administer the PROJECT
construction and fulfill all tither requirements of this AGREEMENT,
) Submit reimbursement ent requests to APACHE JUNCTION for APACHE
JUNC`I`ION's share of the PROJECT costs. The reimbursement requests
submitted to APACHE JUNCTION shall include copies of the PROJECT--related
billings, invoices, payment vouchers, change orders, or any other backup
documentation establishing the amount .aid and that the costs being, invoiced to
APACHE JUNCTION meet the requirements of this Agreement for°
reimbursement.
D) Each PROJECT"PARTNER,and the PROJECT PARTNERS collectively, shall.
3
1) Comply with A,R.S.Sections 4 -44 1 and 23-214(A)as follows:
a) Each PROJECT PARTNER to this Agreement retains the legal right to
inspect the records of the other Rai-ties and any contractor or subcontractor
employees performing work tinder this Agreement to verify compliance
with A.R.S. Sections 41-4401 and 23-214(A).
b) Failure by any PROJECT CT PARTNER to this Agreement to comply with
A.R.S. Sections 41-4401 and 23-2 4(A) shall be deemed a breach of this
Agreement which could result in termination of the Agreement.
2) Require that any contractor selected for the PROJECT:
a) Warrant its compliance with all federal immigration ation Caws and regulations
that relate to its employees and their compliance with A.R.S. Section 2 «
214(A),
b) Agree that a breach of the warranty under paragraph 1 . .1 shall be
deemed a material breach of contract which could result in termination of
the contract
c) Agree that the other PROJECT PARTNERs to this Agreement retains the
legal right to inspect the papers of contractor or subcontractor employees
who wok on this Agreement to ensure that contractor or subcontractor is
complying with the warranty under paragraph(a)above;
) Certify that it does not have a scrutinized business operation, as defined
in AKS. Sections 35-3 1 and 35-3 3, in either Sudan or Iran.
) 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.
4) In the case of any dispute over any items in this Agreement, 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:
) Agree to equally share the cost of a PROJECT compliance and cost audit to be
initiated within sixty(60)calendar days ofPROJECT completion, if requested by
any PROJECT PARTNER. An independent auditing firm agreed o by the
PROJECT CT PARTNERS will perform the audit. Any payments or reimbursements
necessary to brim the PR yJ CT into compliance with the audit findings shall be
made within forty-five ( 5) calendar days of acceptance by the PROJECT
PARTNERS.
4
E The PROJECT may be phased for construction due to funding or other coordination
issues. Responsibilities of PROJECT PAI TN[-. S shall be phased accordingly,
including, but not limited to, invoicing, reimbursements, transfer of land rights and
accepting of operation and maintenance.
F If mutually acceptable to the PROJECT PARTNERS,NEf S, PROJECT invoicing may be
conducted periodically based on actual PROJECT COST incurred, no more frequently
than monthly, in lieu of invoicing timelines otherwise established in this Agreement.
i To the fullest extent allowed by law, each Party (each, the "Indemnifying Party") shall
indemnify, defend, and hold harmless each either Party (each,the"Indemnified ied Party"),
their officials, board or elected members, officers, agents and employees, from any and
all claims,demands,suits,actions,proceedings, loss,cost and damages of every kind and
description (collectively, "Claims"), including any reasonable attorney fees, litigation
expenses and/or arbitration expenses, which may be brought or made against or incurred
by Indemnified Panty on account of loss of or damage to any property or for injuries to
or death of any person,to the extent caused by,arising out of or contributed to,by reason
of any omission, professional effort, fault, mistake or negligent act, whether active or
passive, of Indemnifying Party, its officials, board or elected members, officers,
employees, agents or representatives or subcontractors, their employees, volunteers,
agents or representatives in connection with or incident to the performance of this
Agreement. Such indemnity shall not be limited by reason of remuneration of any
insurance coverage herein provided. Every provision of this indemnification paragraph
shall survive the termination of this Agreement. If any Claim by a third party becomes
subject to this indemnity provision, the'PROJECT PARTNERS to this Agreement shall
expeditiously meet to discuss a common and mutual defense, including possible
proportional liability and proportional payment of litigation expenses and damages.
H All notices or demands upon any PROJECT PARTNER shall be in writing and shall be
delivered in person or sent by mail addressed as follows:
City of Apache Junction
C/O: City Engineer, Emile Schmid
300 E Superstition Blvd
Apache Junction,AZ 85119
Pinal County Flood Control District
C . Christopher Wanamaker,PE CFr1
85 N Florence Street
PO Box 727
Florence,AZ 85132
Ij Each PROJECT PARTNER will pay for and not seek reimbursement for its own
personnel and administrative costs associated with this PROJECT, including but not
limited to the following, unless specifically identified otherwise in this Agreement:
design, contract preparation, construction, construction management, operation,
maintenance,permitting, management, and administrations
J) This Agreement shall expire 2 years from the date of recording with the County
Recorder or Capon 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 the PROJECT T PARTNERS,this
Agreement may be amended or terminated. The liability,operation and maintenance, and
indemnification provisions of this Agreement shall survive the expiration of this
Agreement.
K) This Agreement is subject to cancellation by either party pursuant to the provisions o
A.R.S. Section 3 - 11.
L) Attached to this Agreement or contained herein are the written determinations by the
appropriate attorneys for the PROJECT PARTNERS 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 PROJECT PARTNERS, the Parties agree that
this Agreement shall be renegotiated upon mutual written request.
l) The PROJECT is planned and designed to meet the recurrence interval of the I00-year
storm event within the roadways storm drain facilities, and channels and this level of
protection is specifically approved by the Board of Directors of the Pinal County Flood
Control District.
) The terms and conditions of this Agreement shall be governed by and interpreted in
accordance with the laws of the Mate of Arizona. Any action at law or in equity brought
by either PROJECT PARTNER for the purpose ofenforcing a right or rights provided
for in this Agreement,shall be tried in a court of competent jurisdiction in Pinal County,
State of Arizona. The PROJECT PARTNERS hereby waive all provisions of law
providing for a change of venue in such proceeding to any other county. In the event
either PROJECT PARTNER shall bring suit to enforce any terra of this Agreement or to
recover any damages for and on account of the breach of any term or condition in this
.Agreement, it is mutually agreed that the substantially prevailing Party in such action
shall recover all costs including all litigation and appeal expenses, collection expenses,
reasonable attorney fees, necessary witness fees and court costs to be determined by the
court in such action.
P) Neither PROJECT PARTNER shall be considered not to have performed its obligations
under this Agreement in the event of enforced delay Carl"Enforced Delay")ay" due to causes
beyond its control and without its fault or negligence or failure to comply with applicable
laws, including, but not restricted to, acts of God, fires, floods, epidemics, pa dernics,
quarantine, restrictions,embargoes, labor disputes, and unusually severe weather or the
delays of subconsultants or material yen due to such causes,acts of a public enemy,war,
terrorism or act of terror including but riot limited to bio=terrorism or ecor-terrorism),
nuclear radiation, blockade insurrection, riot, labor strike or interruption, extortion,
sabotage,or similar occurrence or any exercise of the power of eminent domain of any
6
governmental body on behalf of any public entity, or a declaration of moratorium or
similar hiatus (whether permanent or temporary) by any public entity directly affecting
the PROJECT. In no event will Enforced Delay include any delay resulting from
unavailability for any reason of labor shortages, or the unavailability fo ny reason of
particular consultants, subconultants, vendors or investors desired by DISTRICT in
connection with. the Project. DISTRICT agrees that DISTRICT alone will bear all risks
of delay which are not Enforced Delay. In the event of the occurrence of any such
Enforced Delay, the time or tithes for performance of the obligations of the Party
claiming delay shall be extended for a period of the Enforced Delay; provided,however,
that the Party seeking the benefit cif the provisions of this Section shall,within thirty 30)
calendar days after such Party knows or should know of any such Enforced Delay, first
notify the other Party of the specific delay in writing and claim the right to an extension
for the period of the Enforced Delay; and provided further that in net event shall a period
of Enforced Delay exceed ninety(90)calendar days.
PROJECT PARTNERS each believe that the execution,delivery and performance of this
Agreement are in compliance with all applicable laws: However, in the unlikely event
that any provision of this Agreement is declared void or unenforceable (or is construed
as requiring either Party to do any act in violation of any applicable laws,including any
constitutional provision, law, regulation, or city code), such provision shall be deemed
severed from this Agreement and this Agreement shall otherwise remain in full force and
effect;provided that this Agreement shall retroactively be deemed reformed to the extent
reasonably possible in such a manner so that the reformed agreement (and any related
agreements effective as of the saute date)provide essentially the same rights and benefits
(economic and otherwise)to the"Parties as if such severance and reformation were not
required. Unless prohibited by applicable laws,the PROJECT PARTNERS further shall
perform all acts and execute, acknowledge and/or deliver all amendments, instruments
and consents necessary to accomplish and to give effect to the purposes of this
Agreement, as reformed.
7
CITY OF APACHE JUNCTION
an Arizona municipal corporation
Executed this_day of 2023,by:
Approved and Accepted:
By:
falter" °hip" Wilson
Mayor
Attest:
By: ........... m.
Jennifer Pena
City Clerk
APPROVAL ASTO FORM
The foregoing I ntergovern mental Agreement 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 powers and authority granted to the City of Apache Junction under the la-,,vs of the State
of Arizona.
Richard Joel Stern
City Attorney
Apache Junction
I rL COUNTY FLOOD CONTROL DISTRICT
an Arizona municipal corporation
Approved and Accepted,
y
Jeff Serdy
Chairman, Pin al County Flood Control District
Board of Directors
`attest.
By:
Clerk of the Board
APPROVAL AS TO FOR
'Che foregoing Intergovernmental Agreement has been reviewed pursuant toA.R.S. Section 48-
,as amended, by undersigned attorney,who has determined that it is in proper form and
within the powers and authority grated to the Pinal County flood Control District under the
laws of the State of Arizona.
District Counsel
Exhibit
VN
Scenic Drive
When Recorded Return to:
Pnal County Floor[Control District
Christopher wanainaker,PE,CFI I
85 N Florence Street
PO Box 22
Florence,AZ 85132
INTERGOVERNMENTAL AGREEMENT
For the
CONSTRUCTION, PERATI DN AND MAINTENANCE
Of the
SUPERSTITION A IN FLOOD CONTROL PROJECT
Between the
CITY OF APACHE JUNCTION
And the
INA L COUNTY FLOOD CONTROL DISTRICT
I
Agenda Item
This INTERGOVERNMENTAL AGREEMENT "Agreement" is entered into by and among
FINAL COUNTY FLOOD CONTROL DISTRICT, a political subdivision of the State, acting
by and through its Board of Directors(hereinafter referred to as"DISTRICT")and the CITY OF
APAC; E JUNCTION, an Arizona municipal corporation (hereinafter referred to as"APAC H
JUNCTION"). DISTRICT and APAC E JUNCTION are hereinafter collectively called the
"PROJECT PARTNERS"or the"Parties"collectively,or as a"Party„ individually.
This Agreement shall become effective as of the date it has been executed by all parties and shall
be recorded with the Final County Recorder's Of°f`ice,
RECITALS
I. The DISTRICT is empowered by Arizona Revised Statutes "A.R,S.") § 4 -3u 3, a
amended, to enter into this Agreement and has authorized the undersigned to execute this
Agreement on behalf of the DISTRICT.
. APACHE JUNCTION is empowered by Arizona Revised Statutes ("A.R.S.") §§ 9-240 and
11-951 et. seq. to enter into this Agreement and has authorized the undersigned to execute
this Agreement on behalf of.APACHE JUNCTION.
I
1 The stormwater flows in Goldfield wash originate in the Orohai and Superstition Mountains
in northeast APAC; p JUNCTION and surrounding unincorporated Pinal County. The
contributing watershed flows from northeast to southwest and crosses through the rural;
suburban, and urban areas of A A HE JUNCTION. Flooding from the wash in low-lying
areas of APAC E JUNCTION is seasonal, The wash is hydraulically active and routinely
contributes to significant sediment transport which is commonly deposited within stormwater
infrastructure and on roadway crossings downstream of State Route 88.
The flooding areas create challenging problems for development and redevelopment,
. The DISTRICT and APAC HE JUNCTION partnered on the design for a proposed detention
basin intended to reduce flooding hazards impacting residents and businesses known as the
SUPERSTITION BASIN, hereinafter the"PROJECT",
6, The PROJECT site is approximately bound by State Route 88 to the north and west, Scenic
Street to the south,and the Winchester Road alignment to the east and is primarily contained
within AP 1101-1 -026C,owned by Pinal County,within APACHE JUNCTION,Township
1 north, Range g East, Section 21 (See Exhibit A).
7, The PROJECT seeks to mitigate flooding and other significant stormwater impacts and
sediment transport within existing stormwater infrastructure, in order to provide downstream
risk mitigation.The PROJECT JECT will enhance roadway safety and reduce,destruction of critical
infrastructure,while decreasing the burden ofpost storm cleanup services.
. The purpose of this Agreement is to identify and define the responsibilities of the PROJECT
PARTNERS, for the construction,operation,and maintenance aft e PROJECT.
AGREEMENT_
A) Construction costs associated with the PROJECT are estimated to be 3,266,010.90.
) APACHE JUNCTION's obligations.
I) Reimburse fifty percent 50%) of the construction costs incurred for the
PROJECT based on reimbursement requests from the DISTRICT as set forth in
Section C below.
) Within thirty 30) calendar days of receipt of reimbursement reddest from the
DISTRICT for AP ACHE JUNCTION's share of the PROJECT cat, reimburse
the DISTRICT per the terms of this Agreement. Upon final inspection of the
PROJECT,JECT, APAC E JUNCTION will reimburse the DISTRICT for AP ACHE
JUNCTION's share of the remaining costs which have not been previously paid.
) Exclude from the PROJECT the following casts:
a) Personnel and administrative casts incurred by either PROJECT
PARTNER,and
2
b Costs associated with permitting and construction management.
4 Grant the DISTRICT permits at no cost forPROJECT-relatcd activities within
APACHE JUNCTION rights-of-way or easernents.
5) Participate in a final inspection of the completed PROJECT with the DISTRICT.
e responsible for operation and maintenance ofthe completed PROJECT,as
follows:
a Perform maintenance activities to include,but not limited to: maintaining
the flood control function of the PROJECT, with vegetation control and
removal, debris and sediment removal, earth backfill to address soil
removal, ripe replacement,etc:
b Conduct inspections of the completed PROJECT annually and
immediately following storm events meeting or exceeding the PROJECT
JEC`I"
design level.
" Be responsible for obtaining any necessary land rights and permitting for storage
or deposition of spoils from the excavation of the basin.
C The DISTRICT obligations.
I Construct the PROJECT using DISTRICT funds and submit pro ress invoices to
APACHE JUNCTION for reimbursement according to the terms in this
Agreement. Reimbursement may be requested every thirty 3 calendar days
during construction: Construction will include, but not be limited to; casts for
survey :and materials testing to adequately determine location, grade and
compaction requirements.
Serve as the lead agency for the PROJECT.
3 Contract for construction services to satisfy the intent of the PROJECT using a
procurement process authorized by A.R.S. Title 41.
4Provide sufficient DISTRICT staff to manage and administer the PROJECT
construction and fulfill all other requirements oft is AGREEMENT,
5 Submit reimbursement requests to APACHE JUNCTION for APACHE
J CTI N's share of the PROJECT casts, The reimbursement requests
submitted to APACHE CT ) shall include copies ofthe PROJECT—related
billings, invoices, payment vouchers, change orders, or any other backup
documentation establishing the amount paid and that the casts being invoiced to
APACHE JUNCTION meet the requirements of this Agreement for
reimbursement.
D Each PROJECT PARTNER,and the PROJECT PARTNERS collectively, shall;
1) Comply with A.R.S.Sections 41.4401 and 23.214(A)as follows.
a) Each PROJECT PARTNER to this Agreement retains the legal right to
inspect the records of the other Parties and any contractor or subcontractor
employees performing work under this Agreement to verify compliance
with A.R.S. Sections 41-4401 and 23-214 A .
b) Failure by any PROJECT JECT AR ER to this Agreement to comply with
A.R.S. Sections 41-4401 and 2 -214( ) shall be deemed a breach of this
Agreement which could result in termination oft e Agreement.
2) Require that any contractor selected for the PROJECT:
a) 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 1 .2.1 shall be
deemed a material breach of contract which could result in termination of
the contract;
Agree that the other PROJECT PARTNERs to this Agreement retains the
legal right to inspect the papers of contractor or subcontractor employees
who work on this Agreement to ensure that contractor or subcontractor is
complying with the warranty under paragraph(a)above;
) Certify that it does not have a scrutinized business operation, as defined
in A.R.S. Sections 35-3 1 and 35-3 3 in either Sudan or Iran.
) 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:
4) In the case of any dispute over any items in this Agreement, agree to use their
best efforts and enter into good faith negotiations to resolve the disputed matters,
However,this shall not limit the rights ofthe PROJECT PARTNERS to seek any
remedies provided by lave.
5) Agree to equally share the cost of a PROJECT compliance and cost audit to be
initiated within sixty(60)calendar days of PROJECT completion, if requested by
any 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 forty-five (45) calendar days of acceptance by the PROJECT
PARTNERS.
4
E) The PROJECT may be phased for construction due to funding or other coordination
issues. Responsibilities of PROJECT PARTNERS shall be phased accordingly;
including, but not limited to, invoicing, reimbursements, transfer of land rights and
accepting of operation and maintenance.
F) If mutually acceptable to the PROJECT PARTNERS, PROJECT invoicing may be
conducted periodically based on actual PROJECT COST incurred, no more frequently
than monthly, in lieu of invoicing timelines otherwise established in this Agreement,
G) To the fullest extent allowed by law, each Party (each, the "Indemnifying Party") shall
indemnify, defend, and hold harmless each outer Party {each,the "Indemnified Party"),
their officials, board or elected members, officers, agents and employees, from any and
all claims,demands,suits,actions proceedings,loss,cost and damages of every kind and
description (collectively, "Claims"), including any reasonable attorney fees, litigation
expenses and/or arbitration expenses, which may be brought or made against or incurred
by Indemnified Party on account of loss of or damage to any property or for injuries to
or death of any person,to the extent caused by,arising out of,or contributed to,byreason
of any omission, professional effort, fault, mistake or negligent act, whether active or
passive, of Indemnifying Party, its officials, board or elected members, officers,
employees, agents or representatives or subcontractors, their employees, volunteers,
agents or representatives in connection with or incident to the performance of this
Agreement. Such indemnity shall not be limited by reason of remuneration of any
insurance coverage herein provided. Every provision of this indemnification paragraph
shall survive the termination of this Agreement. If any Claim by a third party becomes
subject to this indemnity provision, the PROJECT PARTNERS to this.Agreement shall
expeditiously meet to discuss a common and mutual defense, including possible
proportional liability and proportional payment of litigation expenses and damages.
H) All notices or demands upon any PROJECT T .A1 TNER shall be in writing and shall be
delivered in person or sent by mail addressed as follows:
City of Apache Junction
C/O:City Engineer,Emile Schmid
300 E Superstition Blvd
Apache Junction,AZ 85119
Pinal County Flood Control District
C/O:Christopher Wanamaker,PE,C lvl
5 ICI Florence Street
PO Box727
Florence,AZ 85132
l) Each PROJECT PARTNER will pay for and not seek reimbursement for its own
personnel and administrative casts associated with this PROJECT, including but not
limited to the following, unless specifically identified otherwise in this Agreement:
design,= contract 'reparation, construction, construction management, operation,
maintenance,permitting, management,and administration
5
J) This Agreement shall expire 2) years from the date of recording with the County
Recorder or 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 the PROJECT PARTNERS,this
Agreement may be amended or terminated. The liability,operation and maintenance, and
indemnification provisions of this Agreement shall survive the expiration of this
Agreement.
) This Agreement is subject to cancellation by either 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 PROJECT PARTNERS 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.
Its) if legislation is enacted after the effective date of this Agreement that changes the
relationship or structure of one or more PROJECT PARTNERS, the Parties agree that
this Agreement shall be renegotiated upon mutual written request.
) The PROJECT is planned and designed to meet the recurrence interval of the I 0-year
storm event within the roadways, storm drain facilities, and channels and this level of
protection is specifically approved by the Board of Directors of the Pinal County Flood
Control District.
( ) The terms and conditions of this Agreementshall be governed by and interpreted in
accordance with the laws of the State of Arizona. Any action at law or in equity brought
by either PROJECT PARTNER for the purpose of enforcing a right or rights provided
for in this Agreement,shall be tried in a court ofcompetent jurisdiction in Final County,
State of Arizona, The PROJECT PARTNERS hereby waive all provisions of law
providing for a change of venue in suchproceeding to any other county; In the event
either PROJECT PARTNER shall bring suit to enforce any term of this Agreement or to
recover any damages for and on account of the breach of any term or condition in this
Agreement, it is mutually agreed that the substantially prevailing Party in such action
shall recover all costs including all litigation and appeal expenses, collection expenses,
reasonable attorney fees, necessary witness fees and court casts to be determined by the
court in such action.
) Neither PROJECT T PARTNER shall be considered not to have performed its obligations
under this Agreement in the event of enforced delay an"Enforced Delay")due to causes
beyond its control and without its fault or negligence or failure to comply with applicable
laws, including, but not restricted to, acts of Cod, fires, floods, epidemics, pandemics,
quarantine, restrictions,embargoes, labor disputes, and unusually severe weather or the
delays ofsubconsultants or nmterialmen due to such causes,acts of a public enemy,war,
terrorism or act of terror (including but not limited to bio-terrorism or eco®terrorism)*
nuclear radiation, blockade, insurrection, riot, labor strife or interruption, extortion,
sabotage,or similar occurrence or any exercise of the power of eminent domain of any
governmental body on behalf of any public entity, or a declaration of moratorium or
similar hiatus (whether permanent or temporary) by any public entity directly affecting
the PROJECT. In no event will Enforced Delay include any delay resulting from
unavailability for any reason of labor shortages or the unavailability for any reason of
particular consultants, su consultants, vendors or investors desired by DISTRICT T in
connection with the Project. DISTRICT agrees that DISTRICT alone will bear all risks
of delay which are not Enforced Delay, In the event of the occurrence of any such
Enforced Delay, the time or times for performance of the obligations of the Party
claiming delay shall be extended for a period of the Enforced Delay; provided,however,
that the Party seeking the benefit of the previsions of this Section shall,within thirty 0
calendar days after such :Party knows or should know of any such Enforced Delay, first
notify the other Party oft e specific delay in writing and clam the right to an extension
for the period of the Enforced Delay; and provided further that in no event shall;a period
of Enforced Delay exceed ninety 0 calendar days,
( PROJECT PARTNERS each believe that the execution,delivery and performance of this
Agreement are in compliance with all applicable laws. However, in the unlikely event
that any provision of this Agreement is declared void or unenforceable or is construed
as requiring either Party to do any act in violation of any applicable laws, including any
constitutional provision, law, regulation, or city code), such provision shall be deemed
severed from this Agreement and this Agreement shall otherwise remain in full force and
effect;provided that this Agreement shall retroactively be deemed reformed to the extent
reasonably possible in such a manner so that the reformed agreement (and any related
agreements effective as of the same date)provide essentially the same rights and benefits
(economic and otherwise) to the Parties as if such severance and reformation were not
required. Unless prohibited by applicable laws,the PROJECT PARTNERS further shall
perform all acts and execute, acknowledge and/or deliver all amendments, instruments
and consents necessary to accomplish and to give effect to the purposes of this
Agreement, as reformed.
CITY OF APACHE JUNCTION
an Arizona municipal corporation
Executed this day of 2023, by:
Approved and Accepted:
r
y:
alter`:Chip" Wilson
Mayor
Attest;
By:
fer I-ena
City Clerk
APPROVAL AS�vT FOR
The foregoing Intergovernmental Agreement has been reviewed pursuant to A.R.S. Section
2,as amended,by the undersigned attorney, who has determined that it is in proper form and
within the powers and authority granted to the City of Apache Junction under the laws of the State
of Arizona,
* It
Richard Joel Stern
City Attorney
Apache Junction
FINAL COUNTY FLOODDISTRICT
an Arizona municipal corporation
Approved and Accepted:
y-0
Jeff Serdy
Chairman,Pinal County Flood Control District
Board of Directors
Attest;
By:
Clerk of the Board
APPROVAL AS TO FORM
The foregoing Intergovernmental Agreement has been reviewed pursuant to A.R.S. Section 4 -
3 0 ,as amended, by the undersigned attorney,who has determined that it is in proper form and
within the powers and authority granted to the Pinal County Flood Control District under the
laws oft e State of Arizona.
District Counsel
9
Exhibit
COO
Scenic give