AGREEMENT WITH EPCOR WATER ARIZONA INC.PDF

AGREEMENT
BETWEEN MARICOPA COUNTY
AND
EPCOR WATER ARIZONA INC.
FOR
DESIGN, CONSTRUCTION, COST-SHARING, RECONNECTION TO
AND
OPERATION AND MAINTENANCE OF THE STORM DRAIN ON WEST UNION
HILLS DRIVE FROM 99TH AVENUE TO THE EAST APPROXIMATELY 500 FEET
AND TO THE WEST APPROXIMATELY 150 FEET
(11463)
(C-64-16- -M-00)
This Agreement ("Agreement") is between the County of Maricopa, a political subdivision of
the State of Arizona ("County"), and EPCOR Water Arizona Inc., an Arizona corporation
("Company"). The County and Company are collectively referred to as the Parties or
individually as a Party.
STATUTORY AUTHORIZATION
1. A.R.S. Section 11-251 and Sections 28-6701 et. seq. authorize the County to lay out,
maintain, control and manage public roads within the County.
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BACKGROUND
2. The County will construct improvements to the intersection of Union Hills Drive and 99'
Avenue. The improvements will include a box culvert extension to align the 99 th Avenue
left-turn lanes to allow for a concurrent left-turn movement. A northbound right-turn lane
will be added on 99 th Avenue to address intersection capacity and operations. The west
leg of Union Hills Drive will be widened to add an additional eastbound lane to improve
the intersection capacity and reduce delay.
3. As part of the Union Hills Drive and 99 th Avenue project, the County will modify the storm
drain on West Union Hills Drive from 99th Avenue to the east approximately 500 feet,
and to the west approximately 150 feet. Approximately 320 feet of the existing storm
drain will be abandoned, and five catch basins and two manholes will be constructed. An
18-inch rubber gasket reinforced concrete pipe (RGRCP) will be constructed between
two new manholes and the existing channel on 99 th Avenue. All of the elements
provided in this Paragraph comprise the "Project."
4. The Company owns, operates and maintains a potable water system within
unincorporated Maricopa County in the vicinity of Sun City, including a water storage
tank site and a well site that currently discharge by permit into an existing County
channel through pipes that will be modified by the Union Hills Drive and 99 tn Avenue
project. The Company is responsible for reconnecting to the storm drain system at
locations acceptable to the County in order to reestablish the connections into the
existing channel that will be modified by the Union Hills Drive and 99 th Avenue project.
5. The County will not complete any work outside of its right-of-way limits.
6. The Company is responsible for providing a connection from its facilities to the storm
drain system located within the County's right-of-way limits. The Company will also be
responsible for providing a final connection from its facilities to the County's right-of-
way limits, if deemed necessary by the County.
7. The Company does not have prior rights for the facilities that require upgrading for
reconnecting to the storm drain system. The Company is therefore responsible for the
costs associated with: designing and sealing any engineering plans required to
reconnect to the storm drain system, pipe collars, 18-feet RGRCP, other materials, all
environmental compliance and mitigation requirements, permits and any and all costs
associated with providing a connection from its facilities to the County right-of-way
limits. The Company is also responsible for the following costs associated with pipe
that is being used exclusively by the Company: any and all costs related to pipe
removal and disposal including but not limited to hazardous materials mitigation costs
and any other related environmental costs. The estimated cost for pipe removal and
disposal is $3,540 per day of work. The estimated cost is based on 120 linear feet of
removal and disposal per day of work. The Project may require up to six days of pipe
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removal and disposal work, with a cost that is currently estimated at $21,240. The
County will invoice the Company based on the percentage of cost that relates to the
removal and disposal of the Company owned pipe.
8. The anticipated Project schedule is as follows:
8.1 Construction in FY2016 into FY2017.
9, The anticipated Project costs to be reimbursed by the Company are as follows:
9.1 Materials:
i. Pipe collars (quantity of two) $1,200
18-feet RGRCP $1,120
iii. Other Materials $8,680
9.2 Construction:
i. Pipe removal and disposal associated with Company* $21,240
9.3 Total anticipated costs (excluding costs for pipe removal and disposal):$11,000
*estimated cost
PURPOSE OF THE AGREEMENT
10. The purpose of this Agreement is to identify and define the responsibilities of the County
and the Company for various elements of the Project, including but not limited to design,
construction, cost-sharing, reconnection to the storm drain system and operation and
maintenance of the storm drain.
TERMS OF THE AGREEMENT
11 Responsibilities of the County:
11.1 The County shall act as the lead agency for all aspects of the Project.
11.2 The County shall construct the Project to County standards.
11.3 The County shall provide the Company with copies of Project record drawings,
as related to the storm drain, upon completion.
11.4 Upon the start of construction, the County shall invoice the Company for one
hundred percent (100%) of the Company's estimated total cost share
contribution for the items provided in sections 12.6.2, 12.6.3 and 12.6.5.
11.5 Upon completion of the Project, the County shall either invoice the Company
for the balance of the Company's total cost share contribution or, if the actual
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costs are lower than the estimated cost at the start of construction, refund the
amount of savings attributable to the Company's cost share.
11.6 Upon completion of the Project, Company owned facilities within the County's
right-of-way limits will be operated and maintained by the Company. Access to
the County's right-of-way limits for the purposes of operation and maintenance
must be obtained by securing any and all applicable County and Arizona
Department of Environmental Quality permits.
12. Responsibilities of the Company:
12.1 The Company shall obtain all required permits associated with reconnecting to
the storm drain system, including but not limited to any Maricopa County
Environmental Services permits.
12.2 The Company shall provide all plans and specifications required to reconnect
to the storm drain system. The Company shall complete all plans and
specifications on a schedule prescribed by the County, in consultation with the
Company, to ensure the Project can be delivered on schedule.
12.3 The Company shall secure any and all environmental compliances associated
with reconnecting to the storm drain system.
12.4 For the duration that the Company is connected to the storm drain system,
the Company is prohibited from discharging into the channel during any rain
event or any extended rain event. For the purposes of this agreement, a rain
event is considered a precipitation event of one-inch or greater, and an
extended rain event constitutes consecutive 24 hour periods with 0.5 inches
or greater rain events, if the Company is found to have discharged during a
rain event and flooding occurs, the Company shall be liable for any costs
associated with flooding clean-up, including but not limited to costs
associated with emergency traffic control, repairs, and equipment required to
mitigate any improper rain event discharge performed by the Company. The
Company shall bear full and exclusive liability for any claims for property
damage or personal injury alleged to have been sustained as the result of
flooding from the Company's water discharges which violate the provisions of
this Paragraph 12.4. If the Company disconnects from the County's storm
drain system at a future date, the provisions of this paragraph are no longer
valid. However, the provisions of this paragraph are valid as long as the
Company is connected to the storm drain system.
12.5 The Company shall provide pollution discharge liability insurance for the
benefit of the County in a form acceptable to Maricopa County Risk
Management. The Company may fulfill this requirement by adding the County
as an additional insured to its existing pollution liability policy, provided that
the coverage provided under such policy meets the requirements of the
County, The County shall not unreasonably withhold approval of such
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coverage, and proof of coverage shall be provided to the County within forty-
five (45) days after this Agreement is approved by the County.
12.6 The Company shall be responsible for all costs associated with the following:
12.6,1 Designing and sealing any engineering plans required to reconnect to
the storm drain system;
12.6.2 Pipe collars, 18-feet RGRCP and other materials;
12.6.3 All environmental compliance and mitigation requirements associated
with the asbestos pipe removal;
12.6.4 Permits and any and all costs associated with providing a connection
from the Company's facilities to the County right-of-way limits.
12.6.5 The following costs associated with pipe that is exclusively used by
the Company: any and all costs related to pipe removal and disposal,
including but not limited to hazardous materials mitigation costs and
any other related environmental costs. The estimated cost for pipe
removal and disposal is $3,540 per day of work. The estimated cost
is based on 120 linear feet of removal and disposal per day of work.
The Project may require up to six days of pipe removal and disposal
work which is estimated at $21,240. The Company shall be invoiced
by the County based on the percentage of cost that relates to the
removal and disposal of the Company owned pipe.
12.7 The Company shall provide copies of all Arizona Department of
Environmental Quality and Maricopa County Environmental Services reports
within 15 calendar days upon request by the County.
12.8 Within thirty (30) calendar days of receipt, the Company shall pay all invoices
issued by the County in accordance with the terms of this Agreement.
GENERAL TERMS AND CONDITIONS
13. By entering into this Agreement, the Parties agree that to the extent permitted by law,
each Party will indemnify, defend 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 negligent 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,
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 as
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shall have been caused or contributed to 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.
14. This Agreement shall become effective as of the date it is approved by the Maricopa
County Board of Supervisors and 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 thirty (30) days prior to the effective termination
date.
15. This Agreement shall be subject to the provisions of A.R.S. Section 38-511.
16. The Parties warrant that they are in compliance with A.R.S. Section 41-4401 and further
acknowledge that:
16.1 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 A.R.S. Section 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.
16.2 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.
16.3 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 that the contractor agrees to make all papers and
employment records of said employee available during normal working
hours in order to facilitate such an inspection.
16.4 Nothing in this Agreement shall make any contractor or subcontractor
an agent or employee of the Parties to this Agreement.
17. Each Party to this Agreement warrants that neither it nor any contractor or vendor under
contract with the Party to provide goods or services toward the accomplishment of the
objectives of this Agreement is suspended or debarred by any federal agency which has
provided funding that will be used in the Project described in this Agreement.
18. 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 shall continue for a
period of thirty (30) days after the Defaulting Party receives written notice of such failure
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from the non-defaulting Party provided, however, that such failure shall not be a Default
if the Defaulting Party has commenced to cure the Default within such thirty (30) day
period and thereafter is diligently pursuing such cure to completion, but the total
aggregate cure period shall not exceed ninety (90) days unless the Parties agree in
writing that additional time is reasonably necessary under such circumstances to cure
such default. In the event a Defaulting Party fails to perform any of its material
obligations under this Agreement and is in Default pursuant to this Section, the non-
defaulting Party, at its option, may terminate this Agreement. Further, upon the
occurrence of any Default and at any time thereafter, the non-defaulting Party may, but
shall not be required to, exercise any remedies now or hereafter available to it at law or
in equity.
'19. All notices required under this agreement to be given in writing shall be sent to:
County:
Maricopa County Department of Transportation
Attn: Intergovernmental Relations Branch
2901 West Durango Street
Phoenix, Arizona 85009
Company:
EPCOR Water Arizona Inc.
Engineering Director
2355 West Pinnacle Peak Road, Suite 300
Phoenix, Arizona 85027
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.
20. This Agreement does not imply authority to perform any tasks, or accept any
responsibility, not expressly stated in this Agreement.
21. This Agreement does not create a duty or responsibility unless the intention to do so is
clearly and unambiguously stated in this Agreement.
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22. This Agreement does not grant authority to control the subject roadway, except to the
extent necessary to perform the tasks expressly undertaken pursuant to this Agreement.
23, Any County 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. This Agreement may be terminated by any Party at the end of any fiscal
year due to non-appropriation of funds.
24. 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 without the prior written consent of the other Party.
25. 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.
26. 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.
27. 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.
28. 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 (1) year,
29. 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.
30. Time is of the essence concerning this Agreement. Unless otherwise specified in this
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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 fails 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.
31. Paragraphs 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.
32. 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.
33. 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
34. 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.
35. This Agreement shall be governed by the laws of the State of Arizona.
36. 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.
MARICOPA COUNTY EPCOR WATER ARIZONA, INC.
Recommended by:
Approved and Accepted by: Approved and Accepted by:
Steve Chucri, Chairman Date .___AWarew Brow-n, RE. Date
Board of Supervisors Engineering Director
Attest by: Attest by:
Clerk of the Board Date
APPROVAL OF DEPUTY COUNTY ATTORNEY
I hereby state that I have reviewed the proposed Agreement and declare the Agreement to be in
proper form and within the powers and authority granted to the County by its governing body
under the laws of the State of Arizona.
Deputy County Attorney Date
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