Extracted text (via pymupdf_layout)
13665 characters
RIGHT OF ENTRY AND ACCESS AGREEMENT FOR AN AIR QUALITY MONITOR AT PHOENIX WELL SITE #70 NO. 100919( ) P-50214, C-85-18-XXX-L-00 CITY OF PHOENIX OFFICE OF ENVIRONMENTAL PROGRAMS This Right of Entry and Access Agreement for an Air Quality Monitor (“Agreement”) is entered into by and between the City of Phoenix, an Arizona municipal corporation (“City”), and Maricopa County, a political subdivision of the State of Arizona (“County”), together the “Parties” or individually a “Party”. RECITALS A. The City owns and operates the real property and facilities at City of Phoenix water Well Site #70, 3847 West Earll Drive, Phoenix, Arizona 85019 (the “Site”). B. The County operates air quality monitors that have been installed at the Site to determine ambient levels of air pollution consistent with the requirements of the Federal Clean Air Act. C. The City is willing to grant County continued use of and access to the Site for such purpose of maintaining and operating air quality monitors through an Air Monitoring System (“System”). D. The County desires continuing use of and access to the Site for the purpose of maintaining and operating air quality monitors through the System. E. The City is willing to grant the County use of and access to the Site for the purpose of maintaining and operating the System at the Site to determine ambient levels of air pollution in the vicinity of the Site, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in exchange for good and valuable consideration, the receipt and adequacy of which is mutually acknowledged, the Parties agree as follows: SECTION ONE: GRANT OF ACCESS; LIMITATIONS; NOTICE 1.1 The Recitals are a material part of this Agreement and are incorporated herein by this reference. 1.2 The City hereby grants the County temporary, non-exclusive revocable use of and access to the Site, attached and marked Exhibit A, for the purpose of maintaining 1 and operating the System, subject to the terms and conditions set forth herein. The System consists of the following Air Monitoring System Site Components: a. Monitor: Any combination of criteria pollutant monitors including: Carbon Monoxide, Ozone, Particulates (PM-10, PM-2.5) Nitrogen Dioxide, Sulfur Dioxide, and Lead. b. Shelter: Mobile Mini 8’ x 10’ x 8’ shelter and if needed an additional 8’x8’x2’ platform c. Wind Monitor: Thirty foot tower for meteorological monitors including: wind speed/wind direction, temperature, and relative humidity 1.3 The County shall notify the City Department Contact identified below and receive written authorization prior to changes to the System including, but not limited to, installation, expansion, or relocation of the System. The parties shall agree on a specific location for the System, procedures for access to the Site, and power supply for the System. 1.4 The County shall relocate the System at the County’s cost and expense if relocation is requested by the City for the purpose of accommodating City’s operations or use of the Site. The City will provide a minimum of thirty (30) days’ notice for relocating the System. In recognition of the County’s need to maintain a consistent monitoring network, the City will provide 180 days’ notice whenever possible. 1.5 Upon completion of the installation or relocation of the System, the County shall remove all equipment, material and debris and otherwise restore the construction area to the condition that existed immediately prior to the installation or relocation of the System, normal wear and tear excepted. 1.6 The County may access the Site and Monitors to remove samples, change filters and otherwise maintain the System. The County anticipates the following access requirements: a. Access for 1-2 County staff during normal business operation hours b. Daily on-Site data collection c. Additional periodic Site access as needed 1.7 At all times, the City’s operations and use of the Site by the City shall take precedence over the System. The City will notify the County prior to construction, significant changes in operations or other activities at the Site that could significantly impact the particulate concentrations or the System. SECTION TWO: TERM The Term of this Agreement shall be for a period of five (5) years, and commence upon execution of both parties, subject to earlier termination by the City or County. The term of this Agreement may be extended upon mutual agreement of both parties for two (2) five-year option periods. 2 SECTION THREE: TERMINATION 3.1 In the event the use of the System constitutes an emergency situation or presents an immediate threat to public health or welfare or the safety of the Site, County will suspend the use of the System until steps may be taken to eliminate or minimize the threat. 3.2 Either the City or the County may terminate this Agreement upon thirty (30) days written notice to the other Party. Upon termination of this Agreement, the County shall promptly remove the System at the County’s cost and expense and restore the area to the condition that existed prior to the installation of the System, reasonable wear and tear excepted. 3.3 Upon one Party’s default of the material terms of this Agreement and failure to cure the default within thirty (30) calendar days, written notice of default shall be sent certified mail to the defaulting Party as provided in the Notice provisions set forth below. SECTION FOUR: UTILITIES The City will not provide access to utilities. County will be responsible for initiating service, if applicable. Any access to or use of utilities on the Site will be at the sole expense of the County. The County shall pay, when due, all utility services used in connection with the System. The County agrees to reimburse the City for the separate utility metering system installed for the utility services required. SECTION FIVE: LAWS AND REGULATIONS The County, its employees, agents, consultants and subcontractors shall at all times comply with all applicable local, state and federal laws, ordinances, codes rules and regulations. SECTION SIX: RISK OF LOSS AND LIABILITY The City shall not be liable or responsible for the costs or for performing any work or services in connection with the System. Each Party shall be responsible and liable to the other for any damages to the Site, System and to property located on the Site arising from, or in connection with, the performance of the either Party’s rights pursuant to this Agreement, whether such damages are caused by the a Party, its employees, consultants, contractors, agents, invitees, or representatives. SECTION SEVEN: INDEMNIFICATION Each Party (as “Indemnitor”) agrees to indemnify, defend, and hold harmless the other Party (as “Indemnitee”) from and against any and all claims, losses, liability, costs or expenses (including reasonable attorneys’ fees) (hereinafter collectively referred to as “Claims”) arising out of bodily injury of any person (including death) or property damage, but only to the extent that such Claims which result in vicarious/derivative liability to the 3 Indemnitee are caused by the act, omission, negligence, misconduct, or other fault of the Indemnitor, its officers, officials, agents, employees, or volunteers. Nothing in this Agreement shall be construed as consent to any suit or waiver of any defense in a suit brought in any state or federal court against either Party. SECTION EIGHT: INSURANCE REQUIREMENTS The Parties agree to secure and maintain insurance coverage for any and all risks that may arise out of the terms, obligations, operations, and actions as set forth in this Agreement, including but not limited to public entity insurance. The acquisition of insurance or the maintenance and operation of self-insurance program may fulfill the requirement. SECTION NINE: INSURANCE REQUIREMENTS FOR ANY CONTRACTORS USED BY COUNTY If any part of this Agreement is contracted or subcontracted, County shall require its contractor(s) and subcontractor(s) to name the City of Phoenix as an additional insured to the same extent that County is named as an additional insured as required under contract. SECTION TEN: PURPOSE OF SYSTEM The System shall be used to measure criteria pollutants in the area per National Ambient Air Quality Standards (NAAQS), Final Rule, November 12, 2008, 40 Code of Federal Regulations Parts 50, 51, 53, and 58. SECTION ELEVEN: TIME OF THE ESSENCE Time is of the essence of this Agreement, all of the conditions set forth herein are material to the Agreement and a breach of any condition is a breach of the Agreement. SECTION TWELVE: GOVERNING LAW This Agreement shall be governed by, construed, and enforced in accordance with the laws of the state of Arizona. Any disputes arising out of this Agreement must be resolved in accordance with the laws of Arizona. SECTION THIRTEEN: SEVERABILITY In the event competent authority finds that the law prohibits any term or provision of this Agreement, such a finding shall not render the remaining portions of this Agreement invalid or inoperative. 4 SECTION FOURTEEN: NO WAIVER OF STRICT COMPLIANCE A Party’s failure to insist in any one or more instances upon the other Party’s full and complete performance of this Agreement or to take any action permitted as a result of such non-performance, shall not be construed as waiving or relinquishing the right to demand full and complete performance of the same or any other covenant or condition in the past or in the future. SECTION FIFTEEN: ACCORD AND SATISFACTION The acceptance by either Party of sums less than may be due and owing at any time shall not be construed as an accord and satisfaction. SECTION SIXTEEN: ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the Parties and supersedes all prior written and oral agreements, understandings, and representations of any kind not memorialized herein, and no prior representation shall be binding or enforceable. The Parties acknowledge that the City does not intend to, and does not hereby, grant or convey any right, title, interest, or estate in or to any portion of the Site to County by this Agreement, except those privileges specifically set forth and described in this Agreement. SECTION SEVENTEEN: AMENDMENT Any modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement shall be binding only if reduced to a writing signed by each Party. SECTION EIGHTEEN: NOTICES 18.1 Any notice, consent, or other communication (“Notice”) required or permitted under this Agreement shall be in writing and may not be established by oral testimony. Notice shall be (1) delivered in person, (2) deposited with any commercial air courier or express delivery service, or (3) deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested. 18.2 Notice shall be given to the Parties as follows: City Department: City of Phoenix Attn: Office of Environmental Programs Air Quality 200 W. Washington Phoenix, AZ 85003 Telephone: 602-256-5669 5 County: Maricopa County Air Quality Department Attn: Air Quality Director 1001 N. Central Ave, Suite 125 Phoenix, AZ 85004 Telephone: 602-506-6010 With a copy to: Maricopa County Real Estate Department Attn: Director 2801 W. Durango Street Phoenix, AZ 85009 18.3 Notice shall be deemed received (1) at the time it is personally served, (2) on the second day after it is deposited with any commercial air courier or express delivery service, or (3) five (5) business days after it is deposited in the United States mail as provided above. Any time period stated in a Notice will be computed from the time the Notice is deemed received. 18.4. Either Party may change its address for notices by sending Notice in the manner provided in this Section. SECTION NINETEEN: ASSIGNMENT OF RIGHTS The privileges granted to County by this Agreement are personal to County and may not be assigned or transferred to any other person, firm, corporation, or entity. Any attempt by County to assign or transfer in this Agreement or to convey a right in the Site to any third person is null and void and a breach of this Agreement. SECTION TWENTY: RIGHT OF CANCELLATION This Agreement may be cancelled by City or County pursuant to A.R.S. § 38-511. This Agreement may be terminated at the end of any fiscal year due to non-appropriation of funds without penalty or liability to County. County fiscal year ends June 30, Federal fiscal year ends September 30. City and/or any of its employees, agents, officers, directors, members, successors or assigns hereby waives any and all rights to bring any claim against County or its employees, agents, officers, directors, members, successors or assigns from or relating in any way to County’s termination of this Agreement pursuant to this Section. SECTION TWENTY-ONE: THE CITY’S RIGHT TO INSPECT The City may enter any part of the Site without prior notice at any time to make an inspection thereof. 6 P-50214 C-85-18-XXX-L-00 IN WITNESS WHEREOF, the Parties execute this Agreement. CITY OF PHOENIX: MARICOPA COUNTY: _________________________________ ______________________________ Kathryn Sorense, Water Services Director Steve Chucri, Chairman of the Board of Supervisors ATTEST: ATTEST: _________________________________ ________________________________ City Clerk Date Clerk of the Board Date APPROVED as to FORM: APPROVED as to FORM: _________________________________ ________________________________ City Attorney Date Deputy County Attorney Date 7 P-50214 C-85-18-XXX-L-00 EXHIBIT “A” The Site Phoenix Well Site #70 3847 W. Earll Drive Phoenix, AZ 85019 8