2015-04-15 RR MARICOPA COUNTY BOS AND RELEASE.DOC

TRANSFER AND RELEASE AGREEMENT
C-94-15-xxx-x-00
This Transfer and Release (“Agreement”) is entered into by Maricopa County, a political
subdivision of the State of Arizona (“County”), and The Arizona Railway Museum, an Arizona
non-profit corporation (“Museum”), each sometimes hereinafter referred to individually as a
“Party” and together as the “Parties.”
RECITALS
A. The County owns the property (“Property”) located at 1920 S. Lewis Street, Mesa Arizona,
as more specifically described on Exhibit A, attached hereto and incorporated herein by this
reference.
B. In the past a railroad used to operate across the Property but is no longer in service.
C. Certain railroad equipment located on the Property, such as tracks, rails, ties, spikes, tie
plates, and bumping posts, all as more specifically listed on Exhibit B, attached hereto and
incorporated herein by this reference (“Railroad Equipment”), is of no longer useful to the
County.
D. The Museum operates a facility that includes a variety of railroad related items and, since the
Museum would like to obtain the Railroad Equipment to display for the benefit of the
community, the Museum approached the County and requested the County to transfer the
Railroad Equipment to the Museum.
E. The County would like for the Railroad Equipment to be removed from the Property so that
portion of the Property may be utilized for other purposes that would benefit the County.
F. Museum desires short-term, revocable, non- exclusive use of the Property solely for the
purpose as stipulated in Exhibit C (“Permitted Use”), attached hereto and incorporated
herein by this reference
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good
and valuable consideration, the sufficiency and adequacy of which the Parties acknowledge, the
Parties agree as follows.

I. TERM
1. The accuracy of the foregoing recitals is acknowledged and by this reference incorporated
into this Agreement.
2. This Agreement shall be effective upon Effective Date (defined below) for a period of time
as stipulated in Exhibit D (the “Term”) which is attached hereto and incorporated herein by
this reference, unless terminated earlier, pursuant to the terms of this Agreement.
3. The effective date (“Effective Date”) of this Agreement is the date of execution by the
Maricopa County Board of Supervisors.
4. This Agreement may be terminated by either County or Museum, with or without cause,
upon immediate written notice to the non-terminating party. This Agreement shall be
automatically revoked in the event of, or at such time that Museum fails to comply with the
express terms of this Agreement.
II. SCOPE
Upon execution of this Agreement, County shall make the Property available to Museum for the
Permitted Use during the Term as follows:
1. County hereby irrevocably assigns, transfers, conveys, bargains and grants to the Museum,
all of its right, title and interest in and to the Railroad Equipment.
2. County shall allow Museum access to the Property for the Permitted Use during the Term of
this Agreement.
3. Museum shall use the Property for only the Permitted Use and none other.
4. Museum, at its sole cost and expense, shall be responsible to comply with all laws,
ordinances, orders, rules and regulations of any governmental authority whether now or
hereafter in effect associated with Museum’s use of the Property. Museum shall comply with
any and all security procedures and background checks as may be required by County.
5. Museum, at its sole cost and expense, shall return the Property in a clean, safe and usable
condition. Museum shall maintain the Property in compliance with all local, state and federal
codes, laws, statutes and regulations. All trash and debris on the Property must be removed
from the Property and disposed of in an appropriate manner.
6. Museum shall pay County a transfer fee as stipulated in Exhibit E (the “Transfer Fee”),
which is attached hereto and incorporated herein by reference.
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III. ENVIRONMENTAL COMPLIANCE
1. If Museum’s activities result in adverse environmental impacts whether known or unknown,
Museum will be fully accountable for any resulting site assessment and cleanup cost required
to restore the Property. County will not seek compensation or restitution from Museum as a
“Potentially Responsible Party” for any release of a contaminant/hazardous substance on the
Property prior to the effective date of this Agreement.
2. Museum shall not use and/or store any hazardous material at or on the Property.
3. Museum shall report to County immediately once Museum has knowledge of any event or
occurrence at the Property which may or does result in pollution or contamination adversely
affecting lands, water or facilities owned or managed by County, including the Property.
4. Museum shall protect, defend, indemnify and hold harmless County from and against all
liabilities, costs, charges and expenses, including civil or criminal penalties, attorneys’ fees
and court costs arising out of or related to an activity involving or use of a regulated
substance under any applicable federal, state, or local environmental laws, regulations,
ordinances or amendments thereto because of: (a) any such substance that came to be located
on the Property; or (b) any release, threatened release or escape of any substance in, on,
under or from said Property that is caused, in whole or in part, by any conduct, action or
negligence of Museum.
5. For the purposes of this Agreement, the term “regulated substances” shall include substances
defined as “regulated substances,” “hazardous waste,” “hazardous substances,” “hazardous
materials,” “toxic substances” or “pesticides” in the Resource Conservation and Recovery
Act, as amended by the Hazardous and Solid Waste Amendments of 1984, the
Comprehensive Environmental Response, Compensation and Liability Act, as amended in
1986 to include Superfund Amendments and Reauthorization Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Federal Insecticide, Fungicide and
Rodenticide Act, the relevant local and state environmental laws, and the regulations, rules
and ordinances adopted and publications promulgated pursuant to the local, state, and federal
laws. This indemnification shall include, without limitation, claims or damages arising out of
any violations of applicable environmental laws, regulations, ordinances, rules or
subdivisions thereof. This environmental indemnity shall survive the expiration or
termination of this Agreement and/or any transfer of all or any portion of the Property and
shall be governed by the laws of the State of Arizona, if applicable. Museum accepts sole
responsibility and liability for all wastes produced by its operation, activities and occupation
of the Property and shall comply with all applicable laws concerning such wastes, including
federal, state, and local regulatory requirements. Any such waste must be disposed of in
compliance with the above.
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6. Museum agrees it shall be solely responsible for and assumes all responsibility for the actions
of Museum its agents, employees and contractors in generating, storing, releasing, placing or
allowing to remain on the property any hazardous substances, hazardous wastes, or toxic
substances (hereinafter collectively referred to as “Hazardous Substances”), as those terms as
defined and regulated under CERCLA, 42 U.S.C. 9601 et seq., RCRA, 42 U.S.C. 6901 et
seq., or TSCA, 15 U.S.C. 2601 et seq.. Museum further agrees to comply with all
environmental laws and regulations and to take such other actions as may be reasonably
required to protect against environmental liabilities. Any such “hazardous substances” must
be disposed of pursuant to and in compliance with all required laws and regulations
concerning the use and disposal of such substances.
7. Management and proper disposal of all hazardous material is the responsibility of Museum.
Museum must keep appropriate and required documentation relating to the management and
disposal of all hazardous material.
IV. REPRESENTATIONS AND WARRANTIES
1. Each Party hereby warrants and represents to the other Party that it has the full right power
and authority to enter into this Transfer and Release Agreement, to grant the release
contained herein and to perform its obligations hereunder.
2. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES IN SECTION
(1) HEREINABOVE, COUNTY MAKES NO REPRESENTATION OR WARRANTY
WHATSOEVER WITH RESPECT TO THE RAILROAD EQUIPMENT, INCLUDING
ANY (a) WARRANTY OF TITLE; (b) WARRANTY OF MERCHANTABILITY; (c)
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (d) WARRANTY
AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD
PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BY ACCEPTING THIS
TRANSFER AGREEMENT, MUSEUM ACKNOWLEDGES THAT IT HAS NOT RELIED
ON ANY REPRESENTATION OR WARRANTY MADE BY COUNTY, OR ANY
OTHER PERSON ON COUNTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED
IN THE AGREEMENT.
3. Release. Museum, for itself and on behalf of its agents, officials, employees, representatives,
affiliated companies, successors and assignees, hereby fully releases, acquits and forever
discharges County, its agents, officials, employees, representatives, attorneys, officers,
directors and insurance carriers from any and all claims, suits, debts, actions, demands,
causes of action, obligations, rights, costs, loss of services, expenses, compensation,
liabilities and damages of any kind, name, nature, or description, either at law or in equity,
which now exist, or which may hereafter accrue, whether or not now known, suspected,
claimed or alleged, or which may be based upon, arise from, be related to, or connected with
the transfer, conveyance, grant, ownership, maintenance, salvage or disposal of the Railroad
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Equipment, including, but not limited to, any and all claims, demands, causes of action,
obligations, liabilities, losses, actions, judgments, verdicts, awards, costs, fees, expenses and
damages of whatsoever kind or nature, whether known or unknown, foreseen or unforeseen
(including but not limited to compensatory and punitive damages).
V. RETURN OF PREMISES
Upon expiration or earlier termination of this Agreement, Museum shall leave the Property
clean and free of any debris. Museum shall repair any damage to the Property caused by its use
of the Property pursuant to the terms of this Agreement.
VI. ASSIGNMENT
Any assignment or attempted assignment of this Agreement by Museum without the prior
written consent of County shall be void.
VII. NON-WAIVER
The failure of either Museum or County to insist upon the complete performance of any of the
terms and provisions of this Agreement be performed on the part of the other, or to take any
action permitted as a result thereof, shall not constitute a waiver or relinquishment of the right to
insist upon full and complete performance of the same, or any other covenant or condition, either
in the past or in the future.
VIII. CONFLICT OF INTEREST
This Agreement is subject to the provisions of A.R.S. § 38-511.
IX. ENTIRE AGREEMENT
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, 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.
X. GOVERNING LAW
This Agreement and all obligations upon the County or the Museum arising therefrom shall be
subject to any limitations of applicable local law or regulation. The Parties hereto shall comply
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with all applicable federal, state and local statutes, ordinances, regulations, rules, standards and
executive orders. The terms of this Agreement shall be construed in accordance with the laws of
the State of Arizona and any action thereon shall be brought in the appropriate court located in
Maricopa County, Arizona.
XI. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall be deemed to be one and the same agreement. A signed copy of this
Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be
deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
XII. INDEMNIFICATION
To the fullest extent permitted by law, and except for the willful misconduct of County, Museum
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 Museum’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 Museum and Museum’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 Museum or anyone for whose acts the Museum may be
legally liable. The Museum will be responsible for primary loss investigation and defense and
judgment costs where this Indemnification applies. Museum’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.
XIII. RELEASE
In consideration of the transferring of this Railroad Equipment pursuant to this Agreement,
Museum voluntarily and knowingly releases and discharges County and its agents, contractors,
employees, members, officers 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 Museum, or anyone claiming
through or under Museum may have or may claim to have, which now exist or may hereafter
arise as a result of this Agreement.
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XIV. INSURANCE
Museum at their own expense shall purchase and maintain the herein stipulated minimum
insurance from a company or companies duly licensed by the State of Arizona and possessing a
current A.M. Best, Inc. rating of B++. In lieu of State of Arizona licensing, the stipulated
insurance may be purchased from a company or companies, which are authorized to do business
in the State of Arizona, provided that said insurance companies meet the approval of County.
The form of any insurance policies and forms must be acceptable to Maricopa County. All
insurance required herein shall be maintained in full force and effect until all work or service
required to be performed under the terms of the agreement is satisfactorily completed and
formally accepted. Failure to do so may, at the discretion of County, constitute a material breach
of this Agreement. Museum’s insurance shall be primary insurance as respects County, and any
insurance or self-insurance maintained by County shall not contribute to it. Any failure to
comply with the claim reporting provisions of the insurance policies or any breach of an
insurance policy warranty shall not affect the County’s right to coverage afforded under the
insurance policies. The insurance policies may provide coverage that contains deductibles or
self-insurance retentions. Such deductible and/or self-insurance retentions shall not be
applicable with respect to the coverage provided to County under such policies. Museum shall
be solely responsible for the deductible and/or self-insurance retention and County, at its option,
may require Museum to secure payment of such deductibles or self-insurance retentions by a
surety bond or an irrevocable and unconditional letter of credit. County reserves the right to
request and to receive, within 10 business days, certified copies of any or all of the herein
required insurance policies and/or endorsements. County shall not be obligated, however, to
review such policies and/or endorsements or to advise Museum of any deficiencies in such
policies and endorsements, and such receipt shall not relieve Museum from, or be deemed a
waiver of, County’s right to insist on strict fulfillment of Museum’s obligations. Museum’s
insurance policies, except Workers’ Compensation, shall name County, its agents,
representatives, officers, directors, officials and employees as Additional Insureds. Museum’s
insurance policies required hereunder, except Workers’ Compensation, shall contain a waiver of
transfer of rights of recovery (subrogation) against County, its agents, representatives, officers,
directors, officials and employees for any claims arising out of Museum’s work or service or use
or maintenance of the Property.
Commercial General Liability. Commercial General Liability insurance and, if necessary,
Commercial Umbrella insurance with a limit of not less than $1,000,000 for each occurrence,
$2,000,000 Products/Completed Operations Aggregate, and $2,000,000 General Aggregate
Limit. The policy shall include coverage for premises liability, bodily injury, broad form
property damage, personal injury, products and completed operations and blanket contractual
coverage, and shall not contain any provisions which would serve to limit third party action over
claims. There shall be no endorsement or modifications of the CGL limiting the scope of
coverage for liability arising from explosion, collapse, or underground property damage.
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Automobile Liability. Commercial/Business Automobile Liability insurance and, if necessary,
Commercial Umbrella insurance with a combined single limit for bodily injury and property
damage of not less than $1,000,000 each occurrence with respect to any of the Contractor owned,
hired, and non-owned vehicles assigned to or used in performance of the Contractor’s work or
services.
Workers’ Compensation. Workers’ Compensation insurance to cover obligations imposed by
federal and state statutes having jurisdiction of Museum’s employees or agents engaged in the
performance of the work or services under this agreement; and Employer’s Liability insurance of
not less than $1,000,000 for each accident, $1,000,000 disease for each employee, and
$1,000,000 disease policy limit.
Museum waives all rights against County and its agents, officers, directors and employees for
recovery of damages to the extent these damages are covered by the Workers’ Compensation and
Employer’s Liability or commercial umbrella liability insurance obtained by Museum, its
contractors and its subcontractors pursuant to this agreement.
Evidence of Insurance Coverage. Prior to commencement of work or services under this
agreement, Museum shall furnish County with Certificates of Insurance in a form acceptable to
County, or formal endorsements as required by this agreement, issued by Contractor’s insurer(s),
as evidence that policies providing the required coverages, conditions and limits required by this
agreement are in full force and effect. In the event any insurance policies required by this
agreement are written on a “claims made” basis, coverage shall extend for two years past
completion and acceptance of the term of Museum’s work or services and as evidenced by
annual Certificates of Insurance.
XV. NOTICES
All notices provided for herein shall be in writing and sent by certified mail to the Parties at the
following addresses:
MUSEUM: Arizona Railway Museum
Attn: Mr. Thomas Klobas
P.O. Box 842
Chandler, AZ 85244
COUNTY: Maricopa County Finance Department
Attn: Real Estate Manager
301 W. Jefferson, Suite 960
Phoenix, AZ 85003
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C-94-15-xxx-x-00
IN WITNESS WHEREOF, the Parties enter into this AGREEMENT.
MUSEUM MARICOPA COUNTY BOARD OF
SUPERVISORS
By: By: _________________________________
Printed Name: _______________________ Chairman of the Board
Title: _______________________________
Date: _____________________________ Date: ________________________________
ATTEST:
______________________________________
Clerk of the Board Date
Approved as to Form:
By:
_______________________________________
Deputy County Attorney Date
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Exhibit “A”
Property
Lots 6 and 12, Baseline Commerce Center Amended, according to Book 254 of Maps, Page 37,
records of Maricopa County, Arizona.
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Exhibit “B”
Railroad Equipment
Railroad equipment shall be defined as:
Steel railroad tracks as limited to attached Plan (Exhibit B.1)
Wooden railroad ties contiguous to steel railroad tracks defined in Exhibit B.1
Railroad steel spikes contiguous to steel railroad tracks defined in Exhibit B.1
Railroad spur termination bumper
Miscellaneous steel plates and accessories contiguous to steel railroad tracks defined in Exhibit
B.1
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Exhibit “C”
Permitted Use
Limited, non-exclusive, temporary, and revocable use of the Property as designated in Exhibit A
of this Agreement for removal of the Railroad Equipment during the hours and dates as specified
in Exhibit C of this Agreement, and none other. County shall retain County’s exclusive right to
use the Property at all times during the term of this Agreement for County’s use.
Museum shall return the Property to a pre-use clean condition after its use with Museum’s
personal property removed from the Property and all trash and debris deposited into approved
receptacles.
Museum shall be fully responsible for any damage caused to County’s personal or real property
as a result of Museum’s use of the Property.
Date of complete removal shall be defined as within 90 days of the Agreement Effective Date.
Hours of operation for removal shall be during normal business hours defined as 7:00am to
5:00pm Monday thru Friday and 9:00am to 4:00pm Saturday and Sunday, only upon at least 24
hours’ written notice to County prior to each day of removal.

Exhibit “D”
Term
The use shall be for the time period between the Agreement Effective Date and 90 calendar days
thereafter.
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Exhibit “E”
Use Fee
The use fee is $1.00.
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