CAVE CREEK LANDFILL IGA (FINAL).PDF

INTERGOVERNMENTAL AGREEMENT BETWEEN
MARICOPA COUNTY AND THE CITY OF PHOENIX
FOR INSTALLATION AND OPERATION OF AN INJECTION
WELL PROXIMATE TO THE MARICOPA COUNTY
CAVE CREEK LANDFILL, LOCATED AT 3955 EAST
CAREFREE HIGHWAY (TT507)
(C-75-17-001-3-00)
This Intergovernmental Agreement (“Agreement”) is between the County of
Maricopa, a political subdivision of the State of Arizona (“County”), and the City of
Phoenix, a municipal corporation (“City”). The County and the City are collectively
referred to as “Parties” or individually as “Party.”
BACKGROUND
1. The County’s Cave Creek Landfill (“Landfill”)—a closed facility—is
approximately one-half mile south of Carefree Highway and two miles west of Cave
Creek Road. The County has been routinely monitoring the Landfill since closure to
evaluate the extent of its impact on the environment. In recent testing, the County detected
trichlororethene (“TCE”), a common solvent, in groundwater beneath the Landfill at
concentrations exceeding the Arizona Aquifer Water Quality Standards for this compound
(five micrograms per liter).
2. The County and City are mutually interested in having the County install and
operate an injection well on City property (the “Project”). The injection well will
create a hydraulic barrier to control and prevent further down gradient migration of
the TCE contamination plume toward and into the City’s water supply wellfield.
3. This Project requires City and County coordination and cooperation, with the
City to purchase a vacant parcel of land (Phase 1) and the County to install, and then
operate, an injection well drilled and constructed to the appropriate depth down gradient
from the Landfill to create a hydraulic barrier between the contamination plume and City
of Phoenix water supply wells.
4. The County is designing the Project in consultation with the City. The Project is
programmed for construction in fiscal year 2017.
PURPOSE OF THE AGREEMENT
5. ARIZ. REV. STAT. §§ 11-951, et seq., provides that public agencies may enter into
Intergovernmental Agreements for the provision of services or for joint or cooperative
action. The purpose of this Agreement is to identify the roles and responsibilities of each
Party with respect to the Project, including but not limited to design, right-of-way
acquisition, utility relocation, environmental clearance, construction, construction
management, and cost share.
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TERMS OF THE AGREEMENT
6. Responsibilities of the County:
6.1 The County will act as lead agency on all elements of work for the Project,
which shall include but is not limited to design, utility relocation, environmental
clearance, construction, construction management, and commissioning.
6.2 The County must construct the Project according to the City’s design
standards and in compliance with industry-standard plans and specifications. The County
must provide adequate time for the City to review design and construction details.
6.3 The County will be responsible for all operations and maintenance of the
Project until the remediation is completed.
6.4 The County will be responsible for obtaining and complying with all
applicable state, county, and city permits related to treating contaminated groundwater,
recharging treated groundwater into the aquifer, and discharging groundwater to the City’s
sanitary sewer.
7. Responsibilities of the City:
7.1 Before the County constructs the injection well, the City will acquire and
own land of adequate size for injection well operations. The City will purchase a vacant
parcel on land down gradient from the groundwater contamination plume. Purchasing the
vacant parcel of land will entail: (a) gaining City Council authorization to purchase the
land; (b) obtaining a land appraisal, (c) reviewing recent parcel acquisitions in the vicinity,
and (d) successfully purchasing the vacant parcel of land. The City needs approximately 18
months to identify the parcel, gain City Council authorization for purchase, negotiate a
final price, and obtain title for the land.
7.2 Before the City acquires the parcel of land, the Parties must agree that the
parcel proposed for acquisition is in a location that makes it suitable for installation and
operation of an injection well that will effectively create the desired hydraulic
containment barrier in order to protect the City’s downgradient water supply wells—
nos. 276, 280, and 288.
7.3 The City will provide partial funding as follows for the injection well that
the County must install on the City’s vacant parcel. The City may direct the County to
construct the well with materials more expensive than well materials typically purchased
by the County—including filter packs and well screen casing—but the City will be
responsible for paying the additional costs for these betterments (the difference between
typical costs and betterment costs), not to exceed $500,000. Also, the City hydrologist
will provide guidance and recommendations during design, construction, and testing of
the injection well. The City hydrologist will provide timely comments and edits within
15 calendar days of receiving documents from the County.
7.4 The County will connect the injection well to the City’s sanitary sewer to
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clean and unclog the well periodically. The City will be responsible for sewer fees,
including fees for industrial wastewater discharge permits sought by the County.
Weekly discharges to the sanitary sewer are estimated to be 100,000 gallons per week,
which may require the County’s construction of an equalization basin to control sewer
flows and restrict sediment from entering the sewer. The City will allow up to 300
gallons per minute of continuous flow discharge to the sewer for periodic injection well
cleaning. At the City’s discretion and direction, the County will construct an
equalization basin sized to adequately contain the balance of water generated over a
four-hour injection-well cleaning period in excess of the flow that may be continuously
discharged to the sewer.
7.5 During remedial operations, the County shall not discharge groundwater
into the sanitary sewer at concentrations exceeding the Arizona Aquifer Quality
Standards for volatiles and shall meet City of Phoenix Sanitary Sewer Discharge
Prohibitions and Limitations for all metal constituents. The County will manage the
industrial wastewater discharge permit and be responsible for civil penalties and
damages.
7.6 Title to the injection well, in addition to the responsibility for owning,
operating, and maintaining the well, will transfer from the County to the City once the
groundwater contamination plume is cleaned up and approved by ADEQ.
7.7 The City will facilitate the County’s installation and maintenance of
pipeline infrastructure for the Project on the City’s right-of-way and all land—whether
private or public—on which the City has easements. And the City will promptly review
design plans and submittals pertaining to the Project, providing comment to the County
within 15 calendar days of the City’s receipt.
GENERAL TERMS AND CONDITIONS
8. By entering into this Agreement, the Parties agree that to the extent permitted by
law, each Party will defend, indemnify and save the other Parties harmless, including any
of the Parties’ departments, agencies, officers, employees, elected officials, or agents,
from and against all loss, expense, damage, or claim of any nature whatsoever which is
caused by any activity, condition or event arising out of the performance or
nonperformance by the indemnifying Party of any of the provisions of this Agreement. By
entering into this Agreement, each Party indemnifies the other against all liability
(including but not limited to vicarious liability), losses, and damages of any nature for or
on account of any injuries or death of persons or damages to or destruction of property
arising out of or in any way connected with the performance or nonperformance of this
Agreement, except such injury or damage that is occasioned by the negligence of that
other Party. The damages which are the subject of this indemnity shall include but not be
limited to the damages incurred by any Party, its departments, agencies, officers,
employees, elected officials, or agents. In the event of an action, the damages which are
the subject of this indemnity shall include costs, expenses of litigation, and reasonable
attorney’s fees.
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9. This Agreement shall be effective as of the date it is approved by the Maricopa
County Board of Supervisors and City Council. The Agreement will remain in full force
and effect until all stipulations previously indicated have been satisfied except that it may
be amended upon written Agreement by all Parties. Any Party may terminate this
Agreement upon furnishing the other Party with a written notice at least 30 days prior to
the effective termination date, with each party to bear its own costs and expenses to date
of termination.
10. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511.
11. The Parties warrant that they are in compliance with ARIZ. REV. STAT. § 41-4401
and further acknowledge that:
11.1 Any contractor or subcontractor who is contracted by a Party to perform
work on the Project shall warrant their compliance with all federal immigration laws and
regulations that relate to their employees and their compliance with the E-Verify program
under ARIZ. REV. STAT. § 23-214(A), and shall keep a record of the verification for the
duration of the employee’s employment or at least three years, whichever is longer.
11.2 Any breach of the warranty shall be deemed a material breach of the contract
that is subject to penalties up to and including termination of the contract.
11.3 The Parties retain the legal right to inspect the papers of any contractor or
subcontractor employee who works on the Project to ensure that the contractor or
subcontractor is complying with the warranty above and to require that the contractor
make all papers and employment records of said employee available during normal
working hours in order to facilitate such an inspection.
11.4 Nothing in this Agreement shall make any contractor or subcontractor an
agent or employee of the Parties to this Agreement.
12. Each of the following shall constitute a material breach of this Agreement and an
event of default (“Default”) hereunder. A Party’s failure to observe or perform any of the
material covenants, conditions or provisions of this Agreement to be observed or
performed by that Party (“Defaulting Party”), where such failure continues for a period of
30 days after the Defaulting Party receives written notice of such failure from the
nondefaulting party provided, however, that such failure shall not be a Default if the
Defaulting Party has commenced to cure the Default within such 30 day period and
thereafter is diligently pursuing such cure to completion, but the total aggregate cure period
shall not exceed 90 days unless the Parties agree in writing that additional time is
reasonably necessary under the circumstances to cure the default. In the event a Defaulting
Party fails to perform any of its material obligations under this Agreement and is in
Default, the nondefaulting party, at its option, may terminate this Agreement. Further,
upon the occurrence of any Default and at any time thereafter, the nondefaulting party may,
but shall not be required to, exercise any remedies now or hereafter available to it at law or
in equity.
12.1 All notices required under this Agreement to be given in writing shall be
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sent to:
County of Maricopa
Risk Management Department
222 North Central Ave., #1110
Phoenix, AZ 85004
City of Phoenix
Water Services Department (or Designee)
200 West Washington Street, 9th Floor
Phoenix, AZ 85003
12.2 All notices required or permitted by this Agreement or applicable law shall
be in writing and may be delivered in person (by hand or courier) or may be sent by
regular, certified or registered mail or U.S. Postal Service Express Mail, with postage
prepaid, and shall be deemed sufficiently given if served in a manner specified in this
paragraph. Either Party may by written notice to the other specify a different address for
notice. Any notice sent by registered or certified mail, return receipt requested, shall be
deemed given on the date of delivery shown on the receipt card, or if no delivery date is
shown, the postmark thereon. If sent by regular mail, the notice shall be deemed given 72
hours after the notice is addressed as required in this paragraph and mailed with postage
prepaid. Notices delivered by United States Express Mail or overnight courier that
guarantee next day delivery shall be deemed given 24 hours after delivery of the notice to
the Postal Service or courier.
13. Any funding provided for in this Agreement, other than in the current fiscal year,
is contingent upon being budgeted and appropriated by the Maricopa County Board of
Supervisors and the Phoenix City Council in such fiscal year, except that if construction
has begun for phase two of the Project, the City and County acknowledge they are
committed to the Project funding. This Agreement may be terminated by any Party at the
end of any fiscal year due to nonappropriation of funds, with prompt notice to the other
party.
14. This Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and assignees. Neither Party shall assign its interest in this
Agreement.
15. This Agreement and all Exhibits attached to this Agreement set forth all of the
covenants, promises, agreements, conditions and understandings between the Parties to
this Agreement, and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between the Parties other than as set forth in this
Agreement, and those agreements which are executed contemporaneously with this
Agreement. This Agreement shall be construed as a whole and in accordance with its fair
meaning and without regard to any presumption or other rule requiring construction
against the party drafting this Agreement. This Agreement cannot be modified or changed
except by a written instrument executed by all of the Parties hereto. Each Party has
reviewed this Agreement and has had the opportunity to have it reviewed by legal counsel.
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16. The waiver by any Party of any right granted to it under this Agreement is not a
waiver of any other right granted under this Agreement, nor may any waiver be deemed to
be a waiver of a subsequent right obtained by reason of the continuation of any matter
previously waived.
17. Wherever possible, each provision of this Agreement shall be interpreted in such
a manner as to be valid under applicable law, but if any provision shall be invalid or
prohibited under the law, such provision shall be ineffective to the extent of such
prohibition or invalidation but shall not invalidate the remainder of such provision or the
remaining provisions.
18. Except as otherwise provided in this Agreement, all covenants, agreements,
representations and warranties set forth in this Agreement or in any certificate or
instrument executed or delivered pursuant to this Agreement shall survive the expiration
or earlier termination of this Agreement for a period of one year.
19. Nothing contained in this Agreement shall create any partnership, joint venture,
or other agreement between the Parties hereto. Except as expressly provided in this
Agreement, no term or provision of this Agreement is intended or shall be for the benefit
of any person or entity not a party to this Agreement, and no such other person or entity
shall have any right or cause of action under this Agreement.
20. Time is of the essence concerning this Agreement. Unless otherwise specified in
this Agreement, the term “day” as used in this Agreement means calendar day. If the date
for performance of any obligation under this Agreement or the last day of any time period
provided in this Agreement falls on a Saturday, Sunday or legal holiday, then the date for
performance or time period shall expire at the close of business on the first day thereafter
which is not a Saturday, Sunday, or legal holiday.
21. Sections and other headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
22. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute the same instrument.
Faxed, copied, and scanned signatures are acceptable as original signatures.
23. The Parties agree to execute and/or deliver to each other such other instruments
and documents as may be reasonably necessary to fulfill the covenants and obligations to
be performed by such party pursuant to this Agreement.
24. The Parties hereby agree that the venue for any claim arising out of or in any way
related to this Agreement shall be Maricopa County, Arizona.
25. This Agreement shall be governed by the laws of the State of Arizona.
26. Unless otherwise lawfully terminated by the Parties, this Agreement expires upon
completion and acceptance of the Project and fulfillment of all terms of the Agreement.
End of Agreement - Signature Page Follows
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the date last
written below.
MARICOPA COUNTY CITY OF PHOENIX
Recommended by:
________________________________
Risk Manager Date
Approved and Accepted by: Approved and Accepted by:
________________________________________ ________________________________
Clint Hickman, Chairman Date Kathryn Sorenson, Date
Board of Supervisors Water Services Director
Attest by: Attest by:
________________________________ ________________________________
Fran McCarroll Date City Clerk Date
Clerk of the Board
APPROVAL OF DEPUTY COUNTY ATTORNEY
AND ATTORNEY FOR THE CITY OF PHOENIX
I hereby state that I have reviewed the proposed Intergovernmental Agreement and
declare the Agreement to be in proper form and within the powers and authority granted
to the Parties by their respective governing bodies under the laws of the State of Arizona.
________________________________ ________________________________
Deputy County Attorney Date Acting City Attorney Date
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