IGA with City of Phoenix
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INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
1
This Reciprocal Services Intergovernmental Agreement (the "Agreement") is entered into
pursuant to Arizona Revised Statutes ("A.R.S.") § 11-952 between the City of Phoenix,
an Arizona municipal corporation (hereinafter referred to as "PHOENIX") and the City of
Glendale, an Arizona municipal corporation (hereinafter referred to as "GLENDALE").
PHOENIX and GLENDALE are collectively referred to as "Parties", and individually as
"Party".
RECITALS
A.
PHOENIX has two municipal solid waste transfer stations: the 27th Avenue Solid
Waste Management Facility (the "27th Avenue Transfer Station") and the North
Gateway Solid Waste Management Facility (the "North Gateway Transfer
Station"). Together, these two transfer stations are hereinafter collectively referred
to as the "PHOENIX Facility."
B.
GLENDALE has a municipal solid waste landfill located at 11480 West Glendale
Avenue (the "GLENDALE Landfill"). The GLENDALE Landfill, together with
GLENDALE's transfer stations, are hereinafter collectively referred to as the
"GLENDALE Facility."
C.
PHOENIX and GLENDALE collect or cause the collection and transportation of
solid waste to their respective transfer stations and landfills for disposal. The
PHOENIX Facility and GLENDALE Facility are hereinafter collectively referred to
as "Facilities."
D.
Phoenix is empowered by Chapter 2, § 2 of the City of Phoenix Charter to enter
into this Agreement, and by action of its City Council has been authorized to enter
into this Agreement and has authorized the undersigned to execute this Agreement
on behalf of Phoenix.
E.
GLENDALE is empowered to enter into this Agreement pursuant to Article VIII of
the Glendale City Charter and by appropriate action of its City Council.
F.
Arizona Revised Statutes (A.R.S.), Sections 11-951 through 11-954 provide that
public agencies may enter into intergovernmental agreements for the provision of
services or for joint or cooperative action. The Parties hereto acknowledge that this
Agreement constitutes an Intergovernmental Agreement within the meaning of
A.R.S. § 11-952.
G.
PHOENIX and GLENDALE believe it to be mutually beneficial for each Party to
utilize the Facility owned by the other Party to enhance the operational efficiency
of the collection and disposal of solid waste, including vehicle routing, avoidance
of excessive travel times and distances, fuel economy, and reduction of pollution.
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
2
H.
Accordingly, both PHOENIX and GLENDALE desire to use the other’s Facility in a
safe and cost-effective manner, in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants and
obligations contained herein, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1
Definitions
The capitalized terms contained in this Agreement and not otherwise defined shall
have the meanings set forth below:
"Acceptable Waste" means municipal solid waste collected by the Parties in their
respective Service Areas generated by residential-dwelling units, business,
industrial, and commercial establishments, which consists of (1) household
wastes; (2) non-hazardous commercial waste (originating from entities such as
restaurants, stores, markets, theaters, hotels, and warehouses); (3) non-
hazardous institutional waste material originating in schools, hospitals, research
institutions, and public buildings; (4) small amounts of remodeling, demolition,
roofing materials and other construction debris; and (5) water treatment plant or
wastewater sludge, capable of passing the mandated paint filter test, and delivered
with an acceptable lab report (sample analysis according to appropriate waste
testing protocol established by the Facilities, as defined below).Acceptable Waste
does not include any Hazardous Waste, Special Waste, Medical Waste, including
"red bags" or Unacceptable Waste, as defined herein, or any other waste that
cannot be accepted at the Facility; as each such term is defined in this Agreement.
"Agreement" means this Intergovernmental Agreement between the City of
Phoenix and the City of Glendale together with all appendices hereto and
amendments, if any.
"Disposal Fee" means the greater of: (a) the fee charged at Phoenix Facility at the
end of the Fiscal Year; or (b) the Tipping fee charged to other municipalities for
disposal of solid waste at Glendale Facility at the end of the Fiscal Year. In FY
2024, Glendale’s “Tipping Fee” is $39.25 per ton, including the Environmental Fee.
Phoenix’s Gate Rate is $55.00 per ton.
"Dollars" means United States dollars.
"Effective Date" means the date on which this Agreement becomes effective,
which shall be the first work day following the month in which this Agreement is
signed or authorized to take effect by both Parties.
"Fiscal Year" means the twelve (12) month period beginning July 1st and ending
June 30th.
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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"Force Majeure" means any act, event, or condition having a direct material
adverse effect on the ability of a Party's Facility to accept or dispose of Acceptable
Waste, if such act, event, or condition is beyond the reasonable control of the Party
relying thereon as justification for not performing an obligation or complying with
any condition required of such Party under this Agreement. Such acts, events, or
conditions shall include, but shall not be limited to, the following:
a.
An act of God, lightning, earthquake, fire, severe weather conditions,
epidemic, landslide, drought, hurricane, tornado, storm, explosion,
partial or entire failure of utilities, flood, nuclear radiation, act of a
public enemy, war, blockade, insurrection, riot, disturbance, labor
strike or interruption, extortion, sabotage, or similar occurrence or
any exercise of the power of eminent domain, condemnation, or
other taking by the action of any governmental body on behalf of any
public, quasi-public, or private entity.
b.
The order, judgment, action, or determination of any court,
administrative agency, or governmental body which adversely
affects the: (1) operation of a Facility; (2) the right or ability of a
Facility to accept or transport Acceptable Waste by road; or (3) the
right or ability of a Facility to dispose of the Acceptable Waste, or the
suspension, termination, interruption, denial, or failure of renewal of
issuance of any permit, license, consent, authorization, or approval
necessary to the operation of the Party's Facility, or acceptance,
processing, transportation, or disposal of Acceptable Waste; unless,
it is shown that such order or judgment is the result of the grossly
negligent, willful, or intentional action or inaction of the Party relying
thereon or is the result of grossly negligent or willful violation of
applicable laws, and provided further that the contesting in good faith
of any such order or judgment shall not constitute or be construed as
a grossly negligent, willful, or intentional action or inaction of such
Party.
c.
The denial of an application, failure to issue, or suspension,
termination, or interruption in the issuance or renewal of any permit
if such denial, suspension, termination, interruption, or failure is not
also the result of a wrongful or negligent act or omission or a lack of
reasonable diligence of the Party relying thereon; provided that, the
contesting in good faith or the failure in good faith to contest any such
denial, suspension, termination, interruption, imposition, or failure
shall not constitute or be construed as such a wrongful or negligent
act or omission or lack of reasonable diligence.
d.
The failure of any subcontractor or supplier to furnish services,
materials, or equipment on the dates agreed to if such failure is
caused by a Force Majeure, if and to the extent, and only so long as
the affected Party is not reasonably able, after using its best efforts,
to obtain substitute services, materials, or equipment.
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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"Hazardous Waste" means: (1) any material or substance which by reason of its
quantity, concentration, or physical, chemical, or infectious characteristics is: (a)
toxic or hazardous waste as defined in either the Solid Waste Disposal Act, 42
U.S.C. §§ 6901 et seq., as replaced or amended, or A.R.S. § 49-291; or (b) special
nuclear or by-products material within the meaning of the Atomic Energy Act of
1954; (2) other material which any governmental agency or unit having appropriate
jurisdiction shall determine from time to time is harmful, toxic, or dangerous, or
otherwise ineligible for transfer through, transportation by, or disposal from or to a
Facility; and (3) any material which would result in process residue being
Hazardous Waste under (1) or (2) above.
"Hot Load" means any load of materials delivered to a Facility that is emitting
smoke, fire, or fumes and that may be in imminent danger of fire or explosion.
“Maximum Monthly Tonnage” means 900 tons per month of Acceptable Waste.
Unacceptable Waste, although it may be delivered to a Party’s Facility and either
returned or disposed of by the receiving Party, will not be counted against the
Maximum Monthly Tonnage.
"Maximum Annual Tonnage" means the Maximum Monthly Tonnage times twelve
(12) months, or 10,800 tons. Unacceptable Waste, although it may be delivered
to a Party’s Facility and either returned or disposed of by the receiving Party, will
not be counted against the Maximum Annual Tonnage.
“Service Area” means the geographic area where a Party collects solid waste for
transport to and disposal in their respective Facilities. Each Parties’ Service Area
may include properties or customers outside its jurisdictional boundaries, such as
Luke Air Force Base or other cities, towns or incorporated areas of Maricopa
County.
"Special Waste" means any waste that is now or hereafter defined as a special
waste under or pursuant to A.R.S. § 49-851 et seq. or any other waste that requires
special handling under federal, state, or local laws or regulations.
"Ton" means a short ton of two thousand (2,000) U.S. pounds.
"Unacceptable Waste" means waste or any portion of waste that may not be
disposed of, stored at, or transported to the Facilities, such as, but not limited to:
(1) explosives, radioactive materials, medical waste or infectious waste; (2)
residential cesspool waste, sewage, and sludge; (3) motor vehicles, including
major motor vehicle parts, and agricultural and farm machinery and equipment; (4)
waste tires; (5) used oil; (6) materials that, in the reasonable judgment of the
Parties, may present a risk to health or to safety, or has a reasonable possibility of
adversely affecting the operation of either Facilities such as Hot Loads; or (7)
waste not authorized for disposal at any Facilities by those entities having
jurisdiction over any waste, the disposal of which would constitute a violation of
any governmental requirement pertaining to the environment, health or safety.
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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ARTICLE 2
DELIVERY OF ACCEPTABLE WASTE
2.1
Delivery and Tonnage Exchange
a.
The Parties agree that the total Maximum Annual Tonnage may be
delivered by each Party to the other Party’s Facility on a yearly basis. It is
expected that the Parties will exchange Acceptable Waste on a reciprocal
ton-for-ton basis each year.
b.
Each Party may deliver up to the Maximum Monthly Tonnage to the other
Party’s Facility in any month.
c.
If the Party delivering the Maximum Monthly Tonnage has not exceeded its
Maximum Annual Tonnage, it may deliver up to 25% more (i.e., up to 225
tons) than the Maximum Monthly Tonnage without obtaining the prior
approval of the other Party. However, a Party may not deliver more than
twenty-five percent (25%) above its projected monthly tonnage (i.e., more
than 225 tons over its monthly tonnage) to the other Party's Facility without
prior approval by the receiving Party.
d.
A Party may deliver less than twenty-five percent (25%) above its Maximum
Annual Tonnage (i.e., less than 2700 tons over its yearly tonnage) to the
other Party's Facility without prior approval by the receiving Party. The
Parties, however, may, by mutual written agreement or amendment to this
Agreement, increase or decrease the Maximum Annual Tonnage.
e.
At the end of each Fiscal Year, the Parties will reconcile and compare their
tonnage records and confirm that they have each delivered less than or
equal to the Maximum Annual Tonnage agreed upon in this Agreement. If
one Party delivers Acceptable Waste in excess of that received from the
other Party, the Party receiving the excess will be given credit for the
following fiscal year for the excess amount it received. For example, if it is
determined that PHOENIX delivered 1,000 more tons to GLENDALE
Facility in FY2025 than GLENDALE delivered to the PHOENIX FACILITY
during the same period, GLENDALE may deliver up to an additional 1,000
tons to PHOENIX in FY 2026, even if the carryover “credited excess” would
cause Glendale to exceed its Maximum Annual Tonnage in FY2026.
The Parties further agree that the Party holding any excess credit may: (1)
use it in subsequent years on a monthly basis, or (2) invoice the other Party
for the excess tonnage received at its then-current standard tipping fee rate
at the end of the fiscal year; or (3) add the amount of the excess tonnage
it received to increase the Maximum Annual Tonnage it can deliver to the
other Party in the next fiscal year. The Party holding the excess credit
should inform the other Party within 30 days of the beginning of the new
fiscal year which option above it chooses to exercise.
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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f.
Upon execution of this Agreement, each Party shall provide the other with
its good faith projections, in writing, of the annual tonnage that it expects to
deliver to the other Party's Facility. The projected tonnage may be reviewed
and modified by either Party as deemed necessary. These projections are
intended for planning purposes and are not to be considered contractual
commitments to deliver such projected tonnage.
2.2
Acceptance Obligation
a.
PHOENIX and GLENDALE shall use their best efforts to ensure that they
only deliver Acceptable Waste to the other Party's Facility. Each Party may
refuse to accept any load at its Facility for good cause. Good cause is
defined to include: (1) The quality or nature of waste requires it to be
specially handled or disposed of; (2) Acceptable Waste is mixed with
Unacceptable Waste and cannot be separated without devoting additional
manpower or financial resources; or (3) any other characteristic of the waste
that makes it reasonable to reject some or all of the load.
b.
The Parties may also reject loads of Acceptable Waste at their respective
Facilities if acceptance of such loads would cause the Party to exceed its
Maximum Monthly Tonnage or Maximum Annual Tonnage, or otherwise
cause a breach of this Agreement, or otherwise violate the receiving Party’s
permit or other legal obligations.
c.
Each Party acknowledges that the other Party's Facility is not being used
for its exclusive benefit.
2.3
Weighing of Waste Loads
a.
Each vehicle delivering a waste load shall have a vehicle identification
number permanently affixed and conspicuously displayed on the exterior of
the vehicle and which is readily visible by weigh scale operators. Each Party
may provide a certified tare weight for each vehicle delivering Solid waste
to its Facility. Incoming waste loads shall be weighed and the weight
recorded. From time to time, PHOENIX or GLENDALE may require
revalidation of the tare weight of any vehicle or may weigh any unloaded
trucks. The Parties, at no extra cost to the other, shall have the right to
monitor the weighing of all vehicles delivering waste loads to the other
Party's Facility.
b.
The Facilities shall provide each vehicle operator with a computer copy of
the weight ticket for that load.
c.
In the event the scales become temporarily inoperable due to testing or
malfunction, PHOENIX and GLENDALE shall estimate the weight of waste
load delivered to their respective Facilities on the basis of truck volume and
historical data obtained through operation of the Facilities. These estimates
shall serve as official records for the duration of the scale outage. In such
case, a handwritten ticket may be substituted for the computer copy.
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BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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d.
Each Party shall maintain weight records for all vehicles delivering waste
loads to its Facility in accordance with Section 3.3 below.
2.4
Vehicle Turnaround Time
All vehicles delivering waste loads to a Facility should be able to enter the Facility,
unload, and exit the Facility within a period of fifteen (15) minutes. The Parties shall
provide experienced spotters at their Facilities to direct incoming drivers and to
expedite turnaround time. This fifteen (15) minute turnaround time is a target only.
Parties are not subject to any claims of breach of this Agreement if vehicles do not
meet this 15-minute time frame.
2.5
Delivery Vehicles
Waste loads may be delivered to a Facility in a variety of vehicles including, but
not limited to, side loading, rear loading, and front-loading collection trucks,
tractor/trailer vehicles, open top and closed roll-off containers, compactors, and
any other open or closed vehicles. Each Facility shall be equipped to receive all
vehicles that may be lawfully able to transport solid waste to it.
2.6
Hot Loads
The Parties will use their best efforts to prevent delivery of and to manage any Hot
Load delivered to a Facility. In the event that a vehicle delivers a Hot Load, the
Party delivering the Hot Load agrees to pay reasonable charges for the other
Party's handling and disposal of any such Hot Load.
ARTICLE 3
STATEMENTS, RECORDS, AND AUDITING
3.1
Monthly Reports: Weight Tickets and Monthly Reconciliation
a.
PHOENIX and GLENDALE shall each electronically transmit to the other on
the 5th of every month a tonnage reconciliation report. These reports shall
specify the tonnage of Acceptable Waste delivered, received, and disposed
of by each Party from the other Party at its Facility. PHOENIX and
GLENDALE will have ten (10) working days from receipt of the report to
balance the tonnage received for the month at their respective Facilities.
Records can be requested at any time from either Party for purpose of
reconciliation, auditing, and/or validating transactions.
b.
PHOENIX and GLENDALE shall each provide to the other Party an
electronic data file in a compatible file format for each month's transactions.
The file shall contain, at a minimum: date fields for gross, tare, and net
weights; truck numbers; route number; transaction date; transaction
number; type of material delivered; Facility; total cost; and scale number.
Any weight that was determined by estimate in accordance with Section
2.4.c shall be so noted on all records of such weights.
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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c.
Transaction records provided to PHOENIX must be in the standard
formatting depicted in the example in “Appendix A”. The data fields
required in this standard formatting include in sequential order: Ticket
number, Date-in (mm/dd/yyyy), Time-in (hh:mm AM or PM), Truck Number
(City specific), Gross Vehicle Weight (in pounds), Tare Weight (in pounds),
and Net Tons. These detailed transaction records will need to be uploaded
electronically to the City provided website on a daily basis in Comma-
Separated Values (CSV) file formatting, and at the beginning of each
month reflecting the entire tonnage delivered during the prior month in
CSV file formatting.
3.2
Record Keeping, Accounting, and Auditing
a.
The Parties shall keep and maintain complete and detailed records
documenting the delivery of Acceptable Waste and Unacceptable Waste
and records providing the basis for invoicing requirements under this Article
including: (1) tonnage of Acceptable Waste delivered by a Party to the other
Party's Facility; and (2) quantities of Unacceptable Waste and the
disposition of such material including the character of the waste, the date,
time, and vehicle identification of each vehicle. The Parties shall further
keep and maintain accurate and complete accounting records and vouchers
evidencing all costs, receipts, payments, and any other matter of accounting
associated with their performance under this Agreement in accordance with
generally accepted accounting principles.
b.
The Parties, or their audit representative, shall have the right at any
reasonable time to inspect, copy, and audit the records, accounting records,
vouchers, and their source documents which serve as the basis for costs,
receipts, payments, and exchange of Acceptable Waste tonnage. The said
records shall be available for inspection and audit for a period of five (5)
years following the termination of this Agreement.
3.3
Disposal Fees
At the request of either Party, the Parties shall meet at the end of each fiscal year
for a review of Disposal Fees for the upcoming Fiscal Year. Any increase in the
amount or formula for calculating Disposal Fees must be agreed to by the Parties
in a signed amendment to this Agreement.
3.4
Other Charges
The Parties shall pay or reimburse each other for the reasonable cost of the testing,
inspecting, identifying, handling, and/or disposing of Unacceptable Waste
pursuant to Article 7.
3.5
Special Handling Fee
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BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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If a Party provides special handling for disposal of Acceptable Waste, such Party
may charge any special handling fee incurred to the other Party, which may include
the actual cost of the inspection, testing, identifying, handling, and proper disposal
of such Acceptable Waste.
ARTICLE 4
TERM AND TERMINATION
4.1
Term of Agreement and Extension
The initial term of this Agreement will be for a period of twelve months beginning
on or about March 1, 2025 and ending on March 1, 2026_____. This Agreement
may be renewed in one (1) year increments for a total of four (4) renewal years
upon written mutual agreement by the Parties.
4.2
Termination
Notwithstanding the provisions of Section 4.1, either Party may terminate this
Agreement with or without cause at any time before the expiration of the initial term
or any extension thereof upon sixty (60) days prior written notice.
ARTICLE 5
GENERAL OBLIGATIONS OF PARTIES
5.1 Operation of Facilities
Each Party shall operate and maintain its Facility in an efficient and effective
manner so as to fulfill its obligations under this Agreement and comply with any
approved state or federal law.
5.2
Maintenance of Permits
Except as otherwise set forth herein, neither PHOENIX nor GLENDALE shall take
any action which would violate any term or condition of any Facility permit.
5.3
Compliance with Applicable Laws
PHOENIX and GLENDALE at all times shall comply with and adhere to applicable
federal, state, and local laws and regulations. The Parties also agree to provide
the other Party: (1) true, correct, and complete copies of any written notice of
violation or noncompliance issued or given by any governmental body or agency;
and (2) prompt written notice describing the occurrence of any event of or the
existence of any circumstance which may be considered in noncompliance or a
violation of any permit conditions or application law or regulation, or of any
enforcement action or proceeding of any nature alleging the same.
5.4
Weighing/Scaling of Deliveries
The Parties shall maintain the weighing devices/scales at their Facilities for the
purpose of providing its services hereunder. The Parties shall test and re-calibrate
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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the scales at least once each quarter or more often if necessary or required by the
Arizona Department of Weights and Measures. Calibration records shall be
available for inspection by the other Party.
ARTICLE 6
FACILITY OPERATIONS
6.1
General Operational Terms
PHOENIX and GLENDALE shall furnish adequate labor, materials, supplies,
equipment, utilities, buildings, facilities, and supervision to meet their obligations
under this Agreement. PHOENIX and GLENDALE shall each be solely responsible
for the operation and maintenance of its Facility and the handling of Acceptable
Waste in accordance with the terms and conditions of this Agreement. Each Party
shall also be solely responsible for all costs associated with meeting its obligations
under this Agreement.
6.2
Hours and Days of Operation
a.
The GLENDALE Facility shall receive loads from 7:30 a.m. to 4:00 p.m.,
Monday through Friday, and Saturday from 7:00 a.m. to 3:00 p.m.,
excluding City of GLENDALE holidays. Alternative holiday schedules may
be established by mutual agreement of the Parties. Loads that will be
arriving later than 4:00 p.m. need to be communicated to landfill staff at
least one hour prior to close.
b.
The PHOENIX Facility shall receive loads from 5:30 a.m. to 5:00 p.m.,
Mondays through Fridays, and Saturday from 6:00 a.m. to 3:00 p.m. The
PHOENIX Facility is also closed on Thanksgiving Day, Christmas Day, and
New Year's Day. On all other City of PHOENIX holidays, PHOENIX may
modify the Phoenix Facility’s operating hours to meet its own operational
schedule.
6.3
Right to Inspect
PHOENIX and GLENDALE shall have the right to enter and inspect the other's
Facility and observe operations during operating hours. All such visits shall be
conducted in a manner that does not cause interference with the Parties'
operations. The Parties shall require all persons to comply with their safety rules
and regulations.
ARTICLE 7
UNACCEPTABLE WASTE
7.1
Refusal or Rejection
a.
If a Party discovers Unacceptable Waste or waste that is suspected to be
Unacceptable Waste is received from the other Party, the receiving Party
shall:
INTERGOVERNMENTAL SERVICES AGREEMENT
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(1)
Isolate, remove, and set aside that portion of the load which was
determined as or may be Unacceptable Waste;
(2)
Notify the delivering Party of the discovery within one (1) hour of the
discovery, unless that discovery occurs after 4:00 p.m., in which
event notification shall be given by 9:00 a.m. of the next day the
delivering Party is open for business. Notice shall be deemed a
notice of rejection of the Unacceptable Waste;
(3)
Gather, preserve, maintain, and make available to the delivering
Party all evidence demonstrating that the Unacceptable Waste was
delivered pursuant to this Agreement;
(4)
Test or arrange to have tested the Unacceptable Waste to ascertain
whether that waste is Unacceptable Waste; and
(5)
Allow the delivering Party to inspect such waste within twelve (12)
hours of notice of the discovery of such waste and test the waste and
examine all other evidence gathered by the receiving Party within
seventy-two (72) hours after the discovery of such waste.
b.
A Party shall have the right to reject Unacceptable Waste within seventy-
two (72) hours after the load is tipped and emptied at its Facility by giving
verbal notice to the other Party. Unacceptable Waste shall be deemed
accepted if not rejected within this time period.
c.
If waste is not identifiable by PHOENIX or GLENDALE as Unacceptable
Waste because it has been mixed or commingled with other loads, it shall
not be considered PHOENIX or GLENDALE Unacceptable Waste unless
evidence of the source of the waste is found. If, after inspecting and/or
testing the waste, the receiving Party discovers no Unacceptable Waste or
discovers that the other Party was not the source of the Unacceptable
Waste, the receiving Party shall dispose of that waste at no additional cost
to the other Party.
d.
If Unacceptable Waste is determined to have been delivered to the Facility
by a Party, the delivering Party shall be allowed to promptly remove and
properly dispose of the Unacceptable Waste. The delivering Party shall pay
or reimburse the receiving Party for the actual cost of the inspection, testing,
identifying, handling, and proper disposal of the Unacceptable Waste in
accordance with Section 3.4 if the Parties have agreed in advance that the
receiving Party will dispose of the Unacceptable Waste.
ARTICLE 8
REPRESENTATIONS AND WARRANTEES
8.1
Representations and Warranties of Phoenix
PHOENIX hereby represents and warrants to GLENDALE that:
INTERGOVERNMENTAL SERVICES AGREEMENT
BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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a.
PHOENIX has the full power and authority to execute and deliver this
Agreement to GLENDALE and carry out its obligations hereunder; and
b.
The PHOENIX Facility is appropriately permitted or licensed by Arizona
Department of Environmental Quality to accept the Acceptable Waste and
otherwise perform as required by this Agreement.
8.2
Representations and Warranties of GLENDALE
GLENDALE hereby represents and warrants to PHOENIX that:
a.
GLENDALE has the full power and authority to execute and deliver this
Agreement to PHOENIX and carry out its obligations hereunder; and
b.
The GLENDALE Facility is appropriately permitted or licensed by the
Arizona Department of Environmental Quality to accept the Acceptable
Waste and otherwise perform as required by this Agreement.
ARTICLE 9
INDEMNITY
9.1
Indemnification
Each Party (as "indemnitor") agrees, to the extent permitted by law, to indemnify,
defend, and hold harmless the other Party and its officers, employees, and elected
or appointed officials (as "indemnitee") from and against any and all claims,
losses, liability, costs or expenses, including reasonable attorney's fees
(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 are
caused by the negligence, misconduct, intentional act or other fault of the
indemnitor, its officers, employees, contractors, elected or appointed officials.
Each Party (as indemnitor) further agrees to indemnify, defend and hold harmless
the other Party and its officers, employees and elected or appointed officials (as
indemnitee) for, from and against any and all claims, losses, liability, costs or
expenses, including reasonable attorney’s fees, arising out of the Parties failure to
comply with all applicable laws, rules, and regulations.
9.2
Environmental Indemnification
Each Party agrees to indemnify, defend, and hold harmless the other Party for the
costs of removal or remedial actions under the Comprehensive Environmental
Response, Compensation & Liability Act of 1980 (42 U.S.C. §§9601, et seq., also
known as "CERCLA" or "Superfund") or comparable state law incurred as the
result of either Party's treatment and disposal activities at a Party's Facility except
to the extent such removal or remedial actions are caused by or arise out of the
negligence or willful conduct of each Party, its officers, employees, or agents. This
indemnity shall apply only if a Party's waste conforms with the requirements of this
Agreement.
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BETWEEN THE CITY OF PHOENIX AND THE CITY OF GLENDALE
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ARTICLE 10
OBLIGATIONS DURING FORCE MAJEURE
10.1 Notice Relating to Force Majeure
If any act or event of Force Majeure occurs which affects a Party's Facility, the
Party affected and relying thereon to excuse its performance hereunder shall give
oral notice to the other as soon as reasonably practicable and shall deliver to the
other Party within forty-eight (48) hours after such oral notice a written notice
setting forth such information as may be available to it with respect to the nature,
extent, effect, and anticipated duration of the act or event of Force Majeure.
10.2 Obligations of the Parties During an Event of Force Majeure
If such an act or event of Force Majeure occurs which has the effect of reducing
the amount of Acceptable Waste that a Party can accept from or deliver to the
other Party’s Facility, both Parties shall be excused from performance during the
existence of the Force Majeure; provided, however, the Party not claiming Force
Majeure may deliver its Acceptable Waste to the other Party's Facility, if receipt is
not prohibited by Force Majeure, by paying the Disposal Fees for all tonnage
delivered during the existence of the Force Majeure. A Force Majeure for which
said notice has not been given shall be an unexcused delay. The effects of said
Force Majeure shall be remedied with all reasonable dispatch, and the Party giving
notice shall use best efforts to eliminate and mitigate the consequences thereof.
During the Force Majeure, the Parties will pay the averaged Disposal Fees for the
Acceptable Waste actually delivered to the other Party's Facility. At such time as
the act or event of Force Majeure is cured, immediate verbal notice followed by
written notice, shall be given to the other Party and all reasonable efforts shall be
made to resume deliveries of Acceptable Waste as contemplated under this
Agreement.
ARTICLE 11
GENERAL PROVISIONS
11.1 No-Assignment
Neither Party shall assign, transfer, convey, subcontract, pledge, or otherwise
hypothecate this Agreement or its rights, duties, or obligations hereunder nor any
part thereof without the prior written consent of the other Party, which may be
withheld in its sole discretion. Any assignment made in violation of this Section
shall be void and of no force or effect and shall constitute a material breach of this
Agreement.
11.2 Severability: Integration
No representation, promise, inducement, or statement of intention has been made
by any Party hereto which is not embodied in this Agreement, and no Party hereto
shall be bound by or liable for any alleged misrepresentation, promise,
inducement, or statement of intention not so set forth.
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11.3 Indulgences Not Waivers
Neither the failure nor any delay on the part of a Party to exercise any right,
remedy, power, or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power, or
privilege preclude any other or further exercise of the same or of any other right,
remedy, power, or privilege, nor shall any waiver of any right, remedy, power, or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power, or privilege with respect to any other occurrence. Payments by the
respective Parties shall not constitute a waiver of contract rights.
11.4 Notices
All official notices and approvals shall be in writing. Unless otherwise directed,
such notices shall be hand delivered or delivered by certified or registered mail,
return receipt requested to the Parties at the following respective addresses:
To City of Phoenix: Mr. Eduardo Rodriguez
City of Phoenix Public Works Department
Solid Waste Field Services Division
200 West Washington, 6th Floor
Phoenix, Arizona 85003
To City of Glendale: Mrs. Michelle Woytenko, Director
City of Glendale Field Operations Department
Solid Waste Management Division
6210 West Myrtle Avenue, Suite 111
Glendale, Arizona 85301-1700
Either Party may from time to time designate a new address or a different person
for notices. Unless a return receipt or other document establishes otherwise, a
notice sent by U.S. Mail shall be presumed to be received the third business day
after its mailing.
11.5 Remedies
The Parties to this Agreement, in addition to the right of termination provided
pursuant to Section 4.2 of this Agreement, shall, in the event of a material breach
of any term of this Agreement, have available all remedies provided by law or in
equity for such breach, including expressly the right to an award of reasonable
attorney's fees and court costs to the prevailing Party in connection with any
dispute respecting any term of this Agreement.
11.6 Disputes
This Agreement shall be subject to arbitration as may be required by A.R.S. § 12-
1518.
11.7. Conflict of Interest
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The Parties acknowledge that this Agreement is subject to cancellation provisions
pursuant to A.R.S. § 38-511, the provisions of which are incorporated herein and
made a part hereof.
11.8 Inspection and Audit
All books, accounts, reports, files and other records relating to this Agreement shall
be kept for five (5) years after termination of this Agreement and shall be subject
at all times to inspection and audit by either Party. Such records shall be produced
at the Auditor General's Office or at the requesting Party's principal office within a
reasonable time after their request.
11.9 Entire Agreement
This Agreement contains the entire understanding of the Parties hereto. There are
no representations or provisions other than those contained herein.
11.10 Invalidity of Part of this Agreement
The Parties agree that should any part of this Agreement be held to be invalid or
void, the remainder of the Agreement shall remain in full force and effect and shall
be binding upon the Parties.
11.11 Compliance with Non-Discrimination Laws
The Parties agree to comply with all applicable city, state and federal laws, rules,
regulations and executive orders governing equal employment opportunity,
nondiscrimination and affirmative action, including Chapter 18 of the Phoenix City
Code.
11.12 Immigration Law Compliance
a.
Each Party, and on behalf of any subcontracted Party, warrants to the
extent applicable under A.R.S. § 41-4401, compliance with federal
immigration laws and regulations that relate to their employees as well as
compliance with A.R.S. § 23-214(A) which requires registration and
participation with the E-Verify Program.
b.
Any breach of warranty under Subsection 11.12(a) above is considered a
material breach of this Agreement and is subject to penalties up to and
including termination of this Agreement.
c.
Each Party retains the legal right to inspect the papers of any contracted
Party's or subcontracted Party's employee who performs work under this
Agreement to ensure each Party is compliant with the warranty under
Subsection 11.12(a) above.
d.
Each Party may conduct random inspections, and upon request or notice to
other Party shall provide copies of papers and records demonstrating
continued compliance with the warranty under Subsection 11.12(a) above.
Each Party agrees to keep papers and records available for inspection
during normal business hours and will cooperate in exercise of each Party's
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statutory duties and not deny access to business premises or applicable
papers or records for the purposes of enforcement of this Section 11.12.
e.
Each Party agrees to incorporate into any subcontracts under this
Agreement the same statutorily required obligations and expressly accrue
those obligations directly to the benefit of either Party. Each Party also
agrees to require any subcontracted party to incorporate into each of its own
subcontracts under this Agreement the same obligations above and
expressly accrue those obligations to the benefit of the other Party.
f.
The warranty and obligations under this section for each Party is continuing
throughout the term of this Agreement or until such time as either Party
determines, in its sole discretion, that Arizona law has been modified in that
compliance with this section is no longer a requirement.
g.
The "E-Verify Program" above means the employment verification program
administered by the United States Department of Homeland Security, the
Social Security Administration, or any successor program.
11.13 Prohibitions
a.
No Boycott of Israel. To the extent A.R.S §§ 35-393 – 35-393.03 are
applicable, the Parties hereby certify that they are not currently engaged in, and
agree for the duration of the Agreement to not engage in, a boycott of goods or
services from Israel, as that term is defined in A.R.S § 35-393.
b.
Uyghur Forced Labor Prevention Act (UFLPA). The Parties certify that it
does not currently, and during the term of this Agreement, will not use:
i.
the forced labor of ethnic Uyghurs in the People’s Republic of China;
ii.
any goods or services produced by the forced labor of ethnic
Uyghurs in the People’s Republic of China; and
iii.
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.
c.
Lack of Appropriations
Nothing in this Agreement guarantees that some or all of the funds
necessary to comply with all of the Parties’ obligations under this Agreement
will be appropriated or otherwise be available. The Parties’ agree to seek
such appropriations in good faith from the City Council, and agree not to
use the lack of appropriation as a substitute for termination for convenience.
If sufficient funds are not appropriated or otherwise available, the Parties’
may unilaterally terminate this Agreement after providing thirty (30) days
written notice. In the event the Parties’ provide such notice, neither Party
will be entitled to a refund or offset of any amounts previously paid but will
not pay any amounts that become due after providing such notice.
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CITY OF PHOENIX, a municipal corporation
Jeffery Barton, City Manager
By________________________________ Date_____________
Felipe Moreno, Public Works Director
ATTEST:
By________________________________ Date_____________
Phoenix City Clerk
APPROVED AS TO FORM:
By________________________________ Date_____________
Julie M. Kriegh, City Attorney
CITY OF GLENDALE, a municipal corporation
Kevin Phelps, City Manager
By________________________________ Date_____________
Kevin R. Phelps, City Manager
ATTEST:
By________________________________ Date_____________
Julie K. Bower, Glendale City Clerk
APPROVED AS TO FORM:
By________________________________ Date_____________
Michael D. Bailey, Glendale City Attorney
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INTERGOVERNMENTAL AGREEMENT DETERMINATION
In accordance with the requirements of § 11-952(D), Arizona Revised Statutes, each of
the undersigned attorneys acknowledge that: (1) they have reviewed the above
Agreement on behalf of their respective clients; and, (2) as to their respective clients only,
each attorney has determined that this Agreement is in proper form and is within the
powers and authority granted under the laws of the State of Arizona.
_________________________ _________________________
City of Phoenix
City of Glendale