FACILITIES USE_REVOCABLE LICENSE WITH TUHSD.PDF
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P50397 C-22-23-TBD-X-00 Page 1 of 12 FACILITIES USE/REVOCABLE LICENSE AGREEMENT BETWEEN TEMPE UNION HIGH SCHOOL DISTRICT No. 213 AND MARICOPA COUNTY This Facilities Use/Revocable License Agreement (the “Agreement”) is made and entered into by and between Tempe Union High School District No. 213 of Maricopa County, a political subdivision of the State of Arizona (“Licensor”) and Maricopa County, a political subdivision of the State of Arizona (“Licensee”). Licensor and Licensee shall collectively be referred to herein as the “Parties” or individually as a “Party.” RECITALS WHEREAS, Licensor owns certain real property known as the Innovation Center located at 500 West Guadalupe Road, Tempe, AZ 85283 (“Property”) and will provide one (1) or two (2) classrooms as needed, with adjoining restrooms, and playground space (“Premises”), as depicted on Exhibit “A”, attached hereto and incorporated herein by this reference, for provision of Early Education Head Start services administered by Licensee’s Human Services Department (the “Permitted Use”); and, WHEREAS, Licensee shall be entitled to exclusive use of the Premises and non-exclusive use of meeting/common area facilities, to provide services to children and families of infants and toddlers enrolled in Maricopa County Early Head Start 0 - 3 years program (“Recipients”); and, WHEREAS, Licensee’s Permitted Use shall be year-round and shall be restricted to the Premises and meeting/common area facilities; and, WHEREAS, Licensor has determined that the Permitted Use is not commercial in nature, but rather a benefit to the Recipients, and a partnership to provide early childhood education and related services for low-income children and their parents; and, WHEREAS, Licensor wants to support the efforts of the Licensee by offering the Premises pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: AGREEMENT Article 1. Recitals. 1.1 The Recitals, by this reference, are incorporated herein and made a part of this Agreement. Article 2. Responsibilities. 2.1 Licensee shall utilize the Premises to provide the Permitted Use year-round during mutually agreed upon times when Property is open and operational. 2.2 Utility Services to Premises and Disruption in Permitted Use of Premises: 2.2.1 The Licensor shall be responsible for providing utility services to the Premises including, but not limited to, electrical, lighting, air conditioning, heating, ventilation, water, sewer and trash removal. 2.2.2 The Licensor shall not be liable to the Licensee for any failure or interruption to water, gas, electricity, hot or cold air, or sewer system, to all or part of the facilities unless such failure P50397 C-22-23-TBD-X-00 Page 2 of 12 or interruption is caused by Licensor or Licensor’s agents, officers or employees. Licensor shall make reasonable efforts to restore any failure or interruption to water, gas, electricity, hot or cold air, or sewer system. 2.3 Access: 2.3.1 The Licensor shall provide advance 48-hour notice to the Licensee of any repairs and maintenance activities, and the like, except in the case of an emergency. 2.3.2 The Licensor shall provide to the Licensee access to and use of parking spaces for visitors to the Premises and for the Licensee’s staff and invitees during normal hours of operation at no cost to Licensee. 2.3.3 Licensee and Licensee’s staff shall have access to and non-exclusive use of restroom facilities closest to the Premises in the common area in order to address the health and comfort of the Recipients, Licensee, and Licensee’s staff. 2.4 Maintenance: 2.4.1 The Licensor shall maintain the Premises and the Property in a safe, operating condition. 2.4.2 The Licensor shall maintain the Premises and the Property and the common area of the Premises and Property, and improvements thereto, in good repair and shall correct any hazardous and damaged conditions. Licensor shall maintain all utility and environmental systems serving the Premises and the Property in a state of good repair. 2.4.3 The Licensor shall provide janitorial services to the Premises in the same manner as the Licensor provides to the Property. 2.4.4 The Licensor shall provide heating, ventilation, air conditioning (HVAC), electricity, water for reasonable and normal drinking and lavatory use to the Licensee for the Premises and the Property at no charge to the Licensee. Any requests by the Licensee for repairs are to be detailed and submitted via email to the point of contact as identified in the Notices section. 2.4.5 The Licensor shall provide gas inspections, fire inspections, and playground general cleaning for the Premises and the Property to a specification as agreed to by the Parties. 2.4.6 Licensor shall maintain the Property and Premises and the structure of Property and Premises operating and in a state of good repair and correct any hazardous or damaged conditions existing as the result of any structural defect or unsoundness (“Structure” means: walls, roofs, floors, foundations and exterior sidewalks, playground and all electrical, plumbing, heating, and air conditioning systems and equipment). 2.5 Repairs: 2.5.1 The Licensee is responsible for repairs or replacing damages to classrooms or equipment of the Licensor caused by the Licensee’s use of the Premises, including damage caused by persons whose permission to enter the Premises is granted by the Licensee, excepting normal wear and tear. 2.6 Renovations: 2.6.1 If the Premises require renovations or modifications due to non-compliance with Early Head Start requirements, the Licensee shall detail renovation requests and submit via email to the Licensor’s point of contact to request necessary renovations to bring the non-compliant areas into compliance. P50397 C-22-23-TBD-X-00 Page 3 of 12 2.6.2 The Licensor shall decide whether to proceed with said renovations. If the Licensor agrees to make the needed renovations and decides to contract to have renovations made, the Licensor shall follow the appropriate procurement rule, A.A.C. R-7-2-001, et seq., and the Licensor shall comply, as applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. §§ 276a to 276a-7), the Copeland Act (40 U.S.C. § 276c and 18 U.S.C. §§ 874), and the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 327-333), regarding labor standards for federally assisted construction sub-agreements. 2.6.3 Prior to beginning necessary renovations to Premises, Licensor shall have the option to demand reimbursement from the Licensee for a portion, or all, of the necessary renovations. 2.6.4 If the Licensor elects to require reimbursement from the Licensee for any, or all, of the said renovations, the Licensor shall provide the Licensee with written cost of said renovations prior to beginning any work associated with said renovation or procurement of materials or services associated with said renovations. Licensor shall determine if renovations shall become the property of Licensor should the Licensee vacate the facility. 2.6.5 Requests and the finalization of renovations may be addressed through formal written notice and processed for approval and signature by each Parties’ delegated authority to administer the Agreement. 2.6.6 If the Licensor elects to require reimbursement from the Licensee for any, or all, of the said renovations, the Licensor shall submit an invoice to the Licensee once the renovation work is completed. Said invoice shall not exceed the cost estimate that was provided to the Licensee by the Licensor prior to commencement of said renovation work. 2.6.7 It is understood that the Licensee’s ability to reimburse the Licensor for the said renovations and improvements is subject to the availability of the Licensee to fund the said renovations. 2.6.8 If the Licensor decides not to make the renovations requested by the Licensee, Licensee may terminate the Agreement pursuant to Section 7.2 of the Agreement, without any liability for such termination. 2.7 Technology: 2.7.1 Licensor shall have wired or wireless internet & technology capability available to Licensee at no additional cost. The Licensor will collaborate with the Licensee to provide access to internet and phone systems. 2.7.2 Licensor shall allow use of school wired or wireless network for the purpose of: 2.7.2.1 Virtual Desktop Infrastructure (VDI) for computers; 2.7.2.2 Ports for TCP & UDP: 50002 and 4172 opened for VDI use. 2.7.3 If wired or wireless internet cannot be provided by Licensor, Licensor shall allow for Licensee’s Information Technology staff to install and provide a digital subscriber line (DSL) on the Premises and Property at no cost to Licensee. Licensee IT staff will need access to demarc location (the physical point at which the public network of telecommunications ends and the private network of a customer begins - this is usually where the cable physically enters a building) for Century Link, or other provider, to bring DSL into classrooms. 2.7.4 At least one (1) Data port per classroom will be provided by Licensor to Licensee at no cost to facilitate DSL to reach Virtual Desktop Infrastructure (VDI) for Licensee’s computers. P50397 C-22-23-TBD-X-00 Page 4 of 12 2.8 Furniture, Equipment, and Materials and Supplies: 2.8.1 The Licensor has the right to determine what equipment or personal property may be brought to the Premises and shall not unreasonably deny Licensee’s equipment or personal property that is required in Early Head Start classrooms. 2.8.2 Upon written notice from the Licensor, equipment or personal property of the Licensee identified by the Licensor to be removed from the Premises shall be removed by the Licensee from the Premises within thirty (30) business days of Licensee’s receipt of said written notice from the Licensor. 2.8.3 The Licensor is not responsible for any property of the Licensee or of any other individual’s personal property at the Premises in connection with this Agreement. 2.8.4 The Licensor has no liability for the destruction, theft, vandalism, or other loss or damage of any such personal property unless such destruction, theft, vandalism, or other loss or damage is caused by the negligence or willful misconduct of Licensor or Licensor’s agents, officers, or employees. 2.8.5 The Licensee shall provide its own classroom equipment and supplies for the Licensee’s use and Licensee will determine design and layout of the classroom. 2.8.6 Licensee shall be responsible for providing additional safety equipment, furniture, material, and supplies as required by the Maricopa County Head Start Program and Arizona Department of Health Services. 2.8.7 Licensee shall be responsible for providing meals and snacks to program Recipients, staff, and volunteers in the classrooms. 2.9 Licenses: 2.9.1 Licensee shall ensure that the Premises meet licensing requirements by the Office of Head Start and the Arizona Department of Health Services. 2.10 Compliance: 2.10.1 Licensee shall comply with all federal, state, and local laws, statutes, rules, regulations, ordinances, codes, and executive orders whether now or hereafter in effect including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Compliance, as amended. Additionally, Licensee shall comply with all applicable policies and administrative regulations of Licensor. Administrative Policies may be found at: http://policy.azsba.org/asba/Z2Browser2.html?showset=tempehigh. 2.10.2 Licensee affirms that it is and will continue to be compliant with all parts of the Administrative Simplification Requirements of HIPAA, as amended, including, but not limited to, the following four (4) sections: 2.10.2.1 Electronic Transactions and code sets 2.10.2.2 Security 2.10.2.3 Unique identifiers 2.10.2.4 Privacy 2.10.3 FERPA. The Parties, their employees, and agents shall comply with applicable federal and state laws pertaining to the maintenance and disclosure of Recipient records, including 20 U.S.C. §1232 (g) of the Family Educational Rights and Privacy Act (“FERPA”) and A.R.S. P50397 C-22-23-TBD-X-00 Page 5 of 12 §15-141 and §15-142. The Parties hereby designate their respective employees as “school officials” for the purposes of 34 C.F.R. § 99.31. 2.10.4 The Parties agree to comply with all applicable state and federal laws, rules, regulations and executive orders governing equal employment opportunity, immigration, nondiscrimination, including the Americans with Disabilities Act, and affirmative action. There shall be no discrimination or segregation practiced on the Premises and Property because of race, color, disability, or sexual orientation. 2.10.5 Records and Audits. Pursuant to A.R.S.§§ 35-214, 35-215, and 41-2548, all books, accounts, reports, files, and other records relating to this Agreement shall be subject, at all reasonable times, to inspection and audit by the State during the term of this Agreement and for five years after the termination of this Agreement. 2.10.6 Immunizations. The Licensee shall ensure each Recipient meets the Arizona School Immunization Requirements unless otherwise exempted. 2.10.7 Fingerprints and Background Checks. The Parties shall ensure that all personnel and any subcontractors are in compliance with the fingerprinting requirements of A.R.S. § 15-512, unless otherwise exempted. 2.11 Attendance: 2.11.1 Licensee shall provide Licensor’s office with updated class rosters for Recipients and Licensee’s employees information including staff contact information email and phone numbers. 2.11.2 To ensure security measures are followed, Licensee shall provide information to all parents/volunteers/visitors of the process for entering the Premises. Article 3. Parties Joint Activities. 3.1 The Parties shall make every effort to work cooperatively to promote the Head Start program through: 3.1.1 Recruitment and enrollment 3.1.2 Sharing referral information 3.1.3 Parent meetings 3.1.4 Health & Safety programs: fire drills; health screenings, etc. 3.2 The Parties shall make every effort to ensure that priority placement in the Early Head Start program is given to the children of Marcos de Niza High School student parents. Article 4. Fees, Costs and Expenses. 4.1 Licensor agrees to provide Licensee use of the Premises year-round for an annual cost of zero dollars per year. Article 5. Funding 5.1 Funding for this Agreement is provided by the following: Federal Agency: US Department of Health and Human Services Administration for Children and Families Office of Head Start CFDA No.: 93.600 P50397 C-22-23-TBD-X-00 Page 6 of 12 Award No.: 09CH012079-02-00 Head Start Grant Grant Term: 3/1/2021 through 6/30/2026 Article 6. Availability of Funds 6.1 This Agreement may be terminated by either Party at the end of any fiscal year due to non- appropriation of funds without any penalty or liability to the other Party. Each Party’s fiscal year ends June 30th. Each Party and/or any of its employees, agents, officers, directors, members, successors or assigns hereby waives any and all rights to bring any claim against the other Party or its employees, agents, officers, directors, members, successors or assigns from or relating in any way to the terminating Party’s termination of this Agreement pursuant to Sections 6.1 and 7.2. Article 7. Term and Termination of Agreement. 7.1 The term of this Agreement shall be for a five (5) year period commencing on July 1, 2023 and expiring on June 30, 2028 (“Term”), and may be renewed, by Amendment executed by both Parties for one (1) additional five-year term (“Renewal Option”). To exercise the Renewal Option, Licensee will provide a minimum of ninety (90) days’ written notice to Licensor. 7.2 The Agreement may be terminated by either Party by giving the other Party at least ninety (90) days’ prior written notice without any penalty or liability to Licensee. 7.3 Each of the terms in this Agreement is considered material and failure to perform any of them shall constitute a breach of this Agreement. Either Party shall have the right to terminate this Agreement if the other Party does not, within thirty (30) days of receipt of a written notice thereof, cure any terms in default. Notwithstanding the foregoing, if the nature of the breach cannot be cured within said thirty (30) day period, the noticing Party shall not have the right to terminate this Agreement if the other Party commences the cure within the thirty (30) period and diligently pursues the cure to completion thereafter. 7.4 This Agreement is subject to cancellation pursuant to A.R.S. § 38-511, the provisions of which are incorporated herein by this reference. 7.5 This Agreement replaces in its entirety any previous facilities use/revocable license agreements between the Parties (C-22-17-064-L-00). Article 8. Amendments. 8.1 All amendments and modifications to this Agreement shall be in writing and signed by authorized signers for both Parties. Article 9. Governing Law and Venue. 9.1 The proper venue for any proceeding at law or in equity or under the provisions for arbitration shall be Maricopa County, Arizona and the Licensor and Licensee hereby waive any right to object to venue. This Agreement shall be construed in accordance with and be governed by the laws of the State of Arizona. The prevailing Party in any action is entitled to its reasonable attorneys’ fees and costs as determined by the decisionmaker. Article 10. Entire Agreement. 10.1 This Agreement and all Exhibits attached hereto set forth all of the covenants, promises, agreements, conditions and understandings between the Parties hereto and there are no covenants, promises, P50397 C-22-23-TBD-X-00 Page 7 of 12 agreements, conditions or understandings, either oral or written, between the Parties other than as set forth herein, and those agreements which are executed contemporaneously herewith. 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. Each Party has reviewed this Agreement and has had the opportunity to have it reviewed by legal counsel. Article 11. Severability. 11.1 If any of the provisions of this Agreement are found or deemed by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired or invalidated in any way. Article 12. Indemnification. 12.1 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 attorney’s fees) (hereinafter collectively referred to as “claims”) arising out of the negligent performance of this Agreement, but only to the extent that such claims which result in vicarious/derivative liability to the indemnitee are caused by the act, omission, negligence, misconduct or other fault of the indemnitor, its officers, officials, agents, employees or volunteers. Article 13. Insurance. 13.1 The Parties agree to maintain in full force and effect during the term of this Agreement and any extension thereof, commercial general liability insurance, or self-insurance, with limits of not less than $1,000,000 single limit coverage per occurrence for bodily injury, personal injury and property damage. 13.2 It is understood that both Parties are “Self-Insured” and a Certificate of Insurance shall be provided by both Parties upon request. Article 14. Return of Premises. 14.1 Upon the expiration or earlier termination of this Agreement, Licensee shall restore the Premises to its original condition, reasonable wear and tear excepted, clean and free of any debris and in good operating order. Any personal property of Licensee not removed by the end of the Term or earlier termination date shall be deemed to have been abandoned by Licensee and may be disposed of or retained by Licensor as Licensor may desire. Article 15. Personal Property. 15.1 The Parties acknowledge that all equipment of Licensee shall be deemed property of Licensee. It is expressly understood and agreed that Licensee retains title to all property Licensee brings onto the Premises. Licensor shall not be responsible for any damage to any property of Licensee and Licensee and/or any of its employees, agents, officers, directors or members hereby waive any and all rights to bring any claim against Licensor from or relating in any way to damage to the property of Licensee unless caused by the negligence or misconduct of Licensor. Article 16. Interruption of Service. P50397 C-22-23-TBD-X-00 Page 8 of 12 16.1 Notwithstanding the preceding, or anything to the contrary contained herein, the Parties acknowledge and agree that under no circumstances shall Licensor be liable for damages, costs, or other losses incurred or suffered by Licensee as a result of acts of God, war, national emergency, governmental restriction/request/direction/delay, civil commotion, strikes, fire or other catastrophe, force majeure, and all other causes or events which are beyond the Licensor’s control. This includes, but is not limited to, any inadequacy, stoppage, surge, interruption, or discontinuance of any telephone, electric, or other utility service. Article 17. Authority to Execute Agreement/Counterparts. 17.1 Each Party represents to the other that the person executing this Agreement on behalf of the respective entity is authorized to execute this Agreement and the other Party shall have the right to rely on such representations or warranties. 17.2 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 one and the same instrument. Electronic signatures shall have the same force and effect as original signatures. 17.3 The Assistant County Manager for Maricopa County and/or the Real Estate Director for Maricopa County shall administer this Agreement, including the execution of documents. Article 18. No Partnership or Joint Venture. 18.1 Each Party is an independent contractor and is independent of the other Party. Under no circumstances shall any employees of one Party be deemed the employees of the other Party for any purpose. This Agreement does not create a partnership, joint venture, or agency relationship between the Parties of any kind or nature. 18.2 The Parties shall be solely responsible for the payment of wages or salary of any type, if any, to all its employees, officers, directors, staff, contractors, and agents. 18.3 Except as expressly provided herein, no term or provision of this Agreement is intended or shall be for the benefit of any person or entity not a Party hereto, and no such other person or entity shall have any right or cause of action hereunder. Article 19. Immigration Laws. 19.1 The Parties warrant that they are in compliance with A.R.S. § 41-4401 and further acknowledge that: 19.1.1 Its subcontractors, if any, warrant their compliance with all federal immigration laws and regulations that relate to their employees and their compliance with A.R.S. § 23-214(A). 19.1.2 A breach of a warranty under sections listed above shall be deemed a material breach of this Agreement that is subject to penalties up to and including termination of the Agreement. 19.1.3 Either Party retains the legal right to inspect the papers of any employee who works on the Agreement to ensure that the other Party or its subcontractors is complying with the warranty under subparagraph 1 above. Article 20. Agreement as License. 20.1 The Parties intend and mutually agree that this Agreement shall be construed as a mere license by Licensor to Licensee to operate within the Premises as described herein. This Agreement shall not P50397 C-22-23-TBD-X-00 Page 9 of 12 be construed as a lease, sublease, rental agreement or easement. It is understood and mutually agreed that Licensee has no interest whatsoever in the Property. Licensee understands and agrees that Licensor may move Licensee to different physical space within the Premises at any time at the discretion of the Licensor. Article 21. Notices. 21.1 Notices, waiver or other communication under this Agreement shall be effective if in writing via email with confirmation of receipt or personally served, and/or sent by certified mail, return receipt requested, with postage prepaid or by commercial express delivery service providing receipted delivery. All such notices shall be addressed to the Parties at the addresses noted below. If email, personally served, or sent via commercial delivery service, any such notice shall be deemed given at the time of such service or, if by mail, two (2) calendar days following the depositing of the same in a post office box regularly maintained by the United States Postal Service. Either Party may designate in writing a different address for notice purposes pursuant to this Section. Licensor: Tempe Union High School District #213 Name: Roland Carranza, Assistant Superintendent for Business Services Address: 500 W. Guadalupe Rd. Tempe, AZ 85283-3599 Phone Number: 480-839-0292 Email Address: rcarranza@tuhsd.k12.az.us Licensee: Maricopa County Name: Eve Del Real Address: 234 N. Central Ave., 3rd Floor Phoenix AZ 85004 Phone Number: 602-372-3710 Email Address: eve.delreal@maricopa.gov With a copy to: Maricopa County Real Estate Department (No invoicing) Attn: Director 2801 W. Durango St. Phoenix, AZ 85009 Article 22. Headings. 22.1 Section 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. Article 23. Time is of the Essence. 23.1 Time is of the essence for this Agreement. If the date for performance of any obligation hereunder or the last day of any time period provided herein shall fall on a Saturday, Sunday or legal holiday of the State of Arizona, then said date for performance or time period shall expire on the first day thereafter which is not a Saturday, Sunday or a legal holiday. Unless otherwise specifically indicated to the contrary, the word “days” as used in this Agreement shall mean and refer to calendar days. P50397 C-22-23-TBD-X-00 Page 10 of 12 IN WITNESS WHEREOF, this Agreement is made and entered into as of the last date written below. LICENSOR: Tempe Union High School District No. 213, a political subdivision of the State of Arizona _____________________________________ Armando Montero Date Governing Board President APPROVED as to FORM: _____________________________________ Attorney for the District Date P50397 C-22-23-TBD-X-00 Page 11 of 12 LICENSEE: Maricopa County, a political subdivision of the State of Arizona ____________________________________ Clint Hickman Chairman of the Board of Supervisors ATTEST: ____________________________________ Clerk of the Board Date APPROVED as to FORM: ____________________________________ Deputy County Attorney Date P50397 C-22-23-TBD-X-00 Page 12 of 12 Exhibit “A” Premises