Extracted text (via pymupdf_layout)
23517 characters
License No. P-50290 C-86-16-094-3-00 FACILITIES USE/REVOCABLE LICENSE AGREEMENT Between ROOSEVELT ELEMENTARY DISTRICT No. 66 And MARICOPA COUNTY This Facilities Use/Revocable License Agreement (the “Agreement”) is made and entered into by and between Roosevelt School District, 6000 S. 7th St., Phoenix, AZ 85042 (“Contractor”), and MARICOPA COUNTY, a political subdivision of the State of Arizona, whose current address is 301 W. Jefferson, Phoenix, Arizona 85003 (“County”). Contractor and County shall collectively be referred to herein as the “Parties” or individually as a “Party.” R E C I T A L S : WHEREAS, Contractor proposes to provide free breakfast and lunch to youth under the age of 18 who participate in the Roosevelt School District Summer Meal Service Program (“Use”) and, WHEREAS, Contractor desires to offer the services to all presenting youth under the age of 18 (“Recipients”) and, WHEREAS, Contractor has selected the Maricopa County Public Health, South Phoenix Clinic, 438 E Southern Ave., Phoenix, AZ 85040, and the Seventh Ave Clinic, 1260 S. 7th Ave., Phoenix, AZ 85007, (collectively “WIC Clinics”) and, WHEREAS, Contractor activities shall be restricted to within the lobby of the WIC Clinics (the “Premises”) as indicated on Exhibit “A”, attached hereto and incorporated by reference herein and will use their own equipment, and, WHEREAS, County has determined that the Use is not commercial in nature, but rather a benefit to the Recipients, and, WHEREAS, County wants to support the efforts of the Contractor by offering the Premises pursuant to the terms and conditions in 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: A G R E E M E N T: 1 Article 1. Recitals. 1.1 The Recitals, by this reference, are incorporated herein and made a part of this Agreement. Article 2. Contractor Responsibilities. 2.1 Contractor shall utilize the Premises portion of the WIC Clinics as described on Exhibit “A”, stating the date, time and location for the Use. 2.2 Contractor 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, Contractor 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: 1) Electronic Transactions and code sets 2) Security 3) Unique identifiers 4) Privacy 2.3 Contractor, at its sole cost and expense, shall keep the Premises in a clean, safe and usable condition at all times. 2.4 Contractor, at Contractor’s sole cost and expense shall provide all equipment (including, but not limited to, computers and cell phones) and supplies necessary for the Use. 2.5 Contractor shall be solely responsible for the payment of wages or salary of any type, if any, to all employees, officers, directors, staff, contractors and agents of Contractor. Article 3. Fees, Costs and Expenses. 3.1 Contractor agrees to conduct the Use at no cost or expense to County. County agrees to provide access to the Premises pursuant to the terms and conditions of this Agreement without monetary remuneration. Article 4. County Responsibilities. 4.1 The County agrees to provide the following to Contractor: a) Access to the Premises for the Use. Contractor shall not have access to the Premises after normal business hours. The County shall provide sufficient parking for Contractor’s agents and staff. Exhibit “A” notifies the County of the Page 2 of 12 specific dates, times and locations when parking shall be required. The County shall supply tables and chairs as required. b) Assist with communicating pertinent information to County employees in advance of the Use. 4.2 County shall not be required to provide or requested by Contractor to provide information about any Recipient that would violate any federal, state or 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. Such information shall be obtained by Contractor directly pursuant to the terms and conditions of this Agreement and all applicable laws. Furthermore, County shall not provide the contact information of any Recipient to Contractor without County receiving informed written consent from the Recipient. 4.3 The Public Health Director of Maricopa County, or their designee, is hereby given the authority to execute an Exhibit “B” to change the specific dates, times and locations when Use and Parking are required, provided there is no cost to the County as a result of the change. Such change shall be at the sole discretion of the Public Health Director which may be unreasonably withheld. Article 5. Term and Termination of Agreement. 5.1 The term of this Agreement shall commence on June 1, 2016 and shall expire on August 7, 2016 (the “Term”). The Parties may extend the Term by mutual agreement in writing. The Agreement may be terminated by either Party by giving the other Party at least 30- day written notice. This Agreement shall terminate upon the failure of Contractor to comply with the terms and conditions of this Agreement. 5.2 Notice of termination shall be hand-delivered to the Contractor at the address set forth in the first paragraph of this Agreement. In addition, a copy shall be mailed to the Real Estate Services Manager, Department of Finance, or sent by overnight courier to the same address. Either party may change their respective notice address by providing the other party with prior written notice of the change of address by certified mail, return receipt requested. Article 6. Non-Disclosure and Non-Use of Confidential Information. 6.1 Contractor agrees that all information communicated or provided to Contractor or its agents with respect to the County or the County’s employees, is proprietary and confidential information. Information gained by Contractor or its agents by reason of association with the County or its agents, employees, or representatives, whether or not that information was directly/intentionally or indirectly/unintentionally communicated, is confidential and proprietary information of the County. Contractor agrees not to disclose any such information to third parties. Contractor agrees to notify County in writing of any actual or suspected loss, misuse or misappropriation of any information. Page 3 of 12 Contractor acknowledges and agrees that any violation of this paragraph, whether intentional or not, will cause irreparable harm to County and its employees. Contractor acknowledges that the County shall be entitled to obtain injunctive relief in connection with such violation, in addition to any other legal rights and remedies. The provisions of this Section 6.1 shall survive termination of this Agreement. Article 7. Governing Law and Venue. 7.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, and is subject to A.R.S. § 38-511, the provisions of which are incorporated herein by this reference. The parties expressly consent to the exclusive personal jurisdiction and venue of the state or federal courts sitting in Phoenix, Arizona, for any lawsuit arising from or relating to this Agreement. The prevailing party in any action is entitled to its reasonable attorneys’ fees and costs. Article 8. Entire Agreement. 8.1 This Agreement and all Exhibits attached hereto sets forth all of the covenants, promises, agreements, conditions and understandings between the Parties hereto and there are no covenants, promises, 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. 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. Article 9. Severability. 9.1 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 10. Non-Waiver. 10.1 Waiver of any breach of any term, condition or covenant herein contained shall not be deemed to be a waiver of any other term, condition or covenant herein, or of a subsequent breach of any term, covenant or condition herein. County’s consent to, or approval of, any subsequent or similar act shall not be deemed to render unnecessary the obtaining of County’s consent to, or approval of, any subsequent or similar act by Contractor, to be construed as the basis of an estoppel to enforce the provision or provisions of this Agreement requiring such consent. Article 11. Indemnification. Page 4 of 12 11.1 To the fullest extent permitted by law, and except for the willful misconduct of County, Contractor shall defend, hold harmless and indemnify County and all of its officers, employees, agents, and volunteers from and against any and all damages, claims, losses, liabilities, actions or expenses (including, but not limited to attorneys’ fees, expert witness fees, court costs, and attorneys’ fees and costs of appellate proceedings) (collectively “Claims”) relating to, arising out of or alleged to have resulted from this Agreement. The Contractor’s duty to defend, hold harmless and indemnify County pursuant to this section shall arise in connection with any claim, damage, loss or expense that is attributable or alleged to be attributable to bodily injury, sickness, disease, including death, or to injury to, impairment, or destruction of property, including but not limited to personal property belonging to Contractor and Contractor’s employees, arising from or related to this Agreement, including claims resulting in whole or in part from the acts, errors, mistakes, omissions, work or services of the Contractor or anyone for whose acts the Contractor may be legally liable. The Contractor will be responsible for primary loss investigation and defense and judgment costs where this Indemnification applies. Contractor’s obligations under this section shall survive the expiration or earlier termination of this Agreement. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph. Article 12. Release. 12.1 In consideration of the granting of this Agreement, Contractor voluntarily and knowingly releases and discharges County and its agents, contractors, employees, members, officials and partners, if any, from any and all liabilities, claims, obligations, demands, causes of action, damages, costs, expenses, attorneys’ fees, and rights whatsoever, in law or in equity, whether known or unknown, that Contractor, or anyone claiming through or under Contractor may have or may claim to have, which now exist or may hereafter arise resulting from the exercise of the license granted by this Agreement. Article 13. Insurance. 13.1 Contractor and its agents shall obtain and keep in force the following insurance to be issued by insurance carriers with a minimum category rating in A.M. Best of B++ or better, as set forth below: a) Worker’s Compensation – Statutory Limit; b) General Liability - $2,000,000; c) Excess Liability - $4,000,000; d) Automobile Liability - $1,000,000 (if applicable); e) Professional Errors and Omissions Insurance - $1,000,000 each claim/ $3,000,000 Aggregate. Each professional or paraprofessional who is not an employee of Contractor shall also carry Professional Malpractice Insurance. This is in addition to the coverage required above. Page 5 of 12 All Errors and Omissions coverage must be “occurrence coverage”, or Contractor must provide “tail” coverage. This means that the coverage will cover claims that incurred during the event but were not reported until a later time. 13.2 County, its officers, directors, agents and employees shall be named as Additional Insured & Certificate Holders under the policies of insurance set forth in Subsection 13.1, for any and all purposes arising out of or connected to the services provided pursuant to this Agreement. 13.3 County shall be a Certificate Holder for Subsection 13.1. 13.4 Before providing the services as defined above, Contractor shall furnish County with certificates of insurance evidencing coverage required by this Article. The certificates shall identify County as additional insured and shall be signed by a person authorized by that insurer to bind coverage on its behalf. 13.5 All obligations for occurrence coverage shall survive termination of this Agreement. Other insurance policies required hereby shall expressly provide that such policies shall not be canceled, terminated or materially altered without thirty (30) days prior written notice to County. 13.6 Contractor shall, and shall cause its agents to comply at all times with all applicable municipal, county, state, federal or other governmental laws, statutes, codes, regulations and other requirements, including, without limitation, environmental health safety and police requirements and regulations respecting the Premises. This compliance shall be at Contractor’s sole cost and expense. Contractor shall be solely responsible for any and all chemical or toxic waste or other “hazardous material” disbursement or release of any kind whatsoever, which is caused by Contractor and its agents, whether accidental or intentional, and will be solely responsible for the actual “clean-up” should any material be released on the County site. In addition, Contractor will be responsible for any cost and expense associated with said clean-up. As used herein, the term “hazardous materials” shall mean any materials identified as “hazardous materials” in any municipal, county, state, federal or other governmental laws, statutes, codes and regulations. This includes, but is not limited to, blood and bodily fluids. 13.7 All insurance obligations of this Article shall survive termination of this Agreement. 13.8 It is understood that the County is “Self-Insured” and a Certificate of Insurance shall be provided by County upon approval of this Agreement by the Parties. Article 14. Return of Premises. 14.1 Upon the expiration or earlier termination of this Agreement, Contractor shall restore the Premises to its original condition, clean and free of any debris and in good operating order. Contractor shall repair any damage to the Premises caused by its use of the Premises. Any personal property of Contractor not removed by the end of the Term or Page 6 of 12 earlier termination date shall be deemed to have been abandoned by Contractor and may be disposed of or retained by County as County may desire. Article 15. Personal Property. 15.1 County and Contractor acknowledge that all equipment of Contractor shall be deemed personal property of Contractor. It is expressly understood and agreed that Contractor retains title to all personal property Contractor brings onto the Premises. County shall not be responsible for any damage to any personal property of Contractor and Contractor and/or any of its employees, agents, officers, directors or members hereby waive any and all rights to bring any claim against County from or relating in any way to damage to the personal property of Contractor. Article 16. Interruption of Service. 16.1 Notwithstanding the preceding, or anything to the contrary contained herein, the parties acknowledge and agree that under no circumstances shall County be liable for damages, costs or other losses incurred or suffered by Contractor 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 County’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 one or more facsimile counterparts, each of which shall be an original, and all of which taken together shall constitute a single instrument. Article 18. No Partnership or Joint Venture. 18.1 Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between Contractor and County. 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 Contractor warrants that it is in compliance with A.R.S. §41-4401 and further acknowledges: Page 7 of 12 a. That the Contractor and 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, subsection A: after December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program and shall keep a record of the verification for the duration of the employee's employment or at least three years, whichever is longer.; b. That a breach of a warranty under section 19.1 above, shall be deemed a material breach of this Agreement that is subject to penalties up to and including termination of this Agreement; c. That County retains the legal right to inspect the papers of any Contractor employee, contractor employee or subcontractor employee who works at, on or about the Premises to ensure that Contractor and its contractors and subcontractors are complying with the warranty provided under subsection 19.1 above and that Contractor agrees to make all papers and employment records of said employee(s) available during normal working hours in order to facilitate such an inspection; d. That nothing herein shall make Contractor or any of Contractor’s contractors or subcontractors an agent or employee of County. Article 20. Agreement as License. 20.1 The Parties intend and mutually agree that this Agreement shall be construed as a mere license by County to Contractor to operate within the Property as described herein. This Agreement shall not be construed as a lease, sublease, rental agreement or easement. It is understood and mutually agreed that Contractor has no interest whatsoever in the Property. Contractor understands and agrees that County may move Contractor to different physical space within the Premises at any time at the discretion of the County. Article 21. Litter and Trash Removal. 21.1 All trash and debris on the Property that is generated by Contractor must be removed from the site by Contractor and disposed of in an appropriate manner. No equipment or materials shall be stored outside of any enclosure. Article 22. Notices. 22.1 All notices which shall or may be given pursuant to this Agreement shall be in writing and transmitted by registered mail, return receipt requested, addressed as follows and shall be effective when received: Page 8 of 12 Contractor: Roosevelt School District, Child Nutrition Services Attn: Xochitl Wilson 1030 E Baseline Rd. Phoenix, AZ 85042 Phone (602) 243-4835 Email: Xochitl.Wilson@rsd.k12.az.us County: Maricopa County, Attn: WIC Program Manager 4041 N. Central Ave., Suite 700 Phoenix, AZ 85012 Phone (602) 506-9339 With a copy to: Maricopa County Finance Dept. Attn: Chief Real Estate Officer 2801 W. Durango Street Phoenix, AZ 85009 Article 23. Headings. 23.1 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 24. Time is of the Essence. 24.1 Time is of the essence of 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. Article 25. Conflict of Interest. 25.1 The Parties to this Agreement have chosen attorneys employed by the Civil Services Division of the Maricopa County Attorney’s Office (“Civil Services Division”) to act as their attorney for the purpose of reviewing this Agreement. In doing so, by their signature below, each Party acknowledges that it is aware that the Civil Services Division will represent both Parties to this Agreement, and each Party expressly waives any conflict created thereby. Article 26. Counterparts. 26.1 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. Faxed and copied signatures are acceptable as original signatures. Page 9 of 12 License No. P-50290 C-86-16-095-3-00 IN WITNESS WHEREOF, this Agreement is made and entered into as of __________, 2016 CONTRACTOR: COUNTY: ROOSEVELT ELEMENTARY DISTRICT MARICOPA COUNTY, a political No. 66 Subdivision of the State of Arizona _____________________________________ ____________________________________ Xochitl Wilson Date Clint Hickman Chairman of the Board of Supervisors ATTEST: _______ Clerk of the Board Date APPROVED AS TO FORM: ______ Deputy County Attorney Date Page 10 of 12 License No. P-50290 C-86-16-095-3-00 EXHIBIT “A” Premises Roosevelt Elementary District 6000 S. 7th St., Phoenix, AZ 85042 WIC SITE ADDRESS TIME (Weekly Basis) South Phoenix 438 E Southern Avenue Monday-Friday Phoenix, AZ 85040 9:00 am to 3:00 pm ________________________________________________________________________ Seventh Ave 1260 S. 7th Ave. Monday-Friday Phoenix, AZ 85007 9:00am to 3:00 pm ________________________________________________________________________ Page 11 of 12 License No. P-50290 C-86-16-095-3-00 Exhibit “B” The Site, Address and weekly time is changed as follows: Site Address Time (Weekly Basis)____________ For Maricopa County: Contractor: ______________________________________ ____________________________________ Name, Director Date Printed Name, Title ____________________________________ Date Page 12 of 12