PREMISE USE AGREEMENT FIRST TEETH FIRST 2.26.2022.PDF
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1 PREMISES USE LICENSE AGREEMENT Surprise Resource Center This License Agreement (“Agreement”) is entered into this 26 day of January, 2022 (“Effective Date”), by and between the City of Surprise, an Arizona municipal corporation, and Maricopa County Department of Public Health. 1. Definitions. Activity means the User’s operation of a 501(c)(3) non-profit organization providing information and services available to residents through the use of an office and classroom space at a City owned facility. Assistance is available from the User to those in need, regardless of city residence, religion, race, ethnicity, national origin, gender, etc. including the following programs: Basic Oral Health Screenings and Referral and Navigation Services License means permission from the Owner to the User to enter the Premises and use the Premises. Owner means the City of Surprise, Arizona. Premises means the City owned facilities located at 12425 W. Bell Road, Bldg. A, Suite #124, Surprise, Arizona, also known as the “Surprise Resource Center” and 15832 N. Hollyhock St, Surprise, Arizona, also known as the “Surprise Senior Center.” Term means the period during which this Agreement and the License granted by this Agreement is effective and which begins on the Effective Date and ends on June 30, 2023, unless this Agreement is terminated earlier and/or the License granted by this Agreement is revoked earlier. User means Maricopa Department of Public Health. 2. License Granted. a. User acknowledges that it has received a non-exclusive License for the sole purpose of engaging in the Activity in and on the Premises for the Term of this Agreement, subject to the terms and conditions set forth in this Agreement. This Agreement does not grant or vest the User with any ownership or leasehold interest in the Premises. b. User has studied and inspected the Premises and accepts the same “AS IS” without any express or implied warranties of any kind, including any warranties or representations by the Owner as to its condition or fitness for any use. User has inspected the Premises and its environs and obtained such information and 2 professional advice as User has determined to be necessary related to this Agreement. USER ACKNOLWEDGES AND AGREES THAT THE OWNER DOES NOT WARRANT THE CONDITION OR SAFETY OF THE PREMISES AND USER HEREBY ASSUMES ALL RISKS OF ANY DAMAGE, INJURY, OR LOSS OF ANY NATURE WHATSOEVER CAUSED BY OR IN CONNECTION WITH THE USE OF THE PREMISES TO THE PROVISIONS OF THIS AGREEMENT. 3. Owner’s Responsibilities. The Owner will: a. Provide no cost access to an assigned cubicle and shared classroom space at the Premises, however the shared classroom space must be shared with other occupants of the Premises and be reserved with the Owner for use during set times. b. Provide a Premises key to User staff for Premises accessibility Monday- Saturday, 8:00AM – 8:00PM. c. Market the services offered at the Premises through press releases, rack cards, social media, the City website and fliers. d. Provide no-cost parking for the User’s visitors at the Premises, however the Owner cannot guarantee parking availability for all of User’s visitors and will be available on a first-come, first-serve basis. e. Provide no-cost heating, cooling and maintenance for the Premises. 4. User’s Responsibilities. The User will: a. Provide service and assistance to individuals at the Premises in accordance with the Activity. b. Utilize the assigned Premises cubicle space for individual appointments on days and times to be determined and mutually agreed upon by the Owner and the User. c. Utilize the classroom space for group services as agreed upon by the Owner and the User. d. Provide its own equipment, supplies, laptops and any other equipment needed to maintain program integrity and quality, and will remove those items when it leaves. e. Provide sufficient staff to maintain a safe environment. f. Provide lock-up services when User is the last occupant in the building. g. Provide monthly usage reports to the Surprise Resource Center Coordinator. h. Participate in Surprise Resource Center User meetings as scheduled by the Owner. i. Fully comply with all Federal, State, City of Surprise, and other applicable laws in conducting the Activity at the Premises and occupying the Premises. 5. Accurate Information. The User certifies that all information User has provided or will provide to Owner is true and correct and can be relied upon by Owner in taking any action with respect to this Agreement. If the User provides any false or misleading information, Owner may reject the User’s application, immediately terminate the 3 Activity, immediately terminate this Agreement and revoke this License, preclude the User from future use of the Premises, and pursue any other appropriate remedies. 6. Limitations of Use. a. The User must: i. comply with all directions and conditions given by Owner; ii. ensure that the use of the premises conforms to the Activity described in this Agreement; iii. provide adequate security, traffic, and safety measures for its Activity, including any measures identified by Owner; iv. adequately supervise the Activity; v. obtain and pay for any necessary business licenses and permits, including licenses and permits required to distribute food, sell goods, and conduct business, as applicable; vi. comply with all applicable federal, state, county and local laws, rules, regulations, and guidelines, including regulations and guidelines issued by the Owner; this includes compliance with all applicable federal, state, and local nondiscrimination laws, including Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act of 1990; vii. pay any and all applicable taxes, exactions, licensing/regulatory fees or similar costs. b. The Activity must not: i. present a clear and present danger to public safety or to the peace and welfare of the City of Surprise, Maricopa County, or the State of Arizona; ii. present a danger of damage to the Premises or other public or private property; iii. constitute a public nuisance; iv. provoke or add to a public riot or breach of peace; or v. damage or otherwise reduce the fair market value of the Premises. 7. Posting and Distribution of Signs. The User shall not post temporary or permanent signs, banners, pennants, etc. on the Premises without prior written consent of the Owner. All expenses in connection with the operation and maintenance of any sign approved by the Owner shall be paid by the User. Any signs of the User not in conformity with this Agreement, and any signs remaining at the end of the Term, shall, upon the Owner’s demand, be immediately removed by the User at its expense, and the User must promptly repair any damage to the Premises resulting from such removal. 8. Maintenance, Repair of Premises by Owner; Inspection. The Owner may inspect the Premises at any time to (a) ensure compliance with this Agreement, and/or (b) evaluate maintenance and repair needs. The User must cooperate with the inspection. The Owner may enter the Premises upon reasonable notice to perform maintenance and repairs of the Premises. Reasonable notice under this section means at least two 4 (2) business days. The Owner will have the right, but not the obligation, to make repairs to the Premises during the Term of this Agreement. The User should report all maintenance needs and maintenance emergencies to the Facilities Help line at (623) 222-6100. 9. Premises Improvements by the User. The User shall not make any improvements to the Premises, unless the proposed improvements have been approved in advance in writing by the Owner. Any improvements made that have not been approved by the Owner shall be immediately removed by the User, and the User shall promptly restore the Premises to its former condition at its sole cost and expense to the satisfaction of the Owner. 10. Fixtures; Personal Property. To the extent User brings any personal property on the Premises, User shall remove all of its personal property upon the request by the Owner. 11. Use Restrictions. The following are prohibited at all times on the Premises: a. Use of the Premises for other than the Activity; b. Use or possession of alcohol or other intoxicants, except pursuant to a lawfully obtained permit or license; c. Gambling, bingo, lotteries, etc.; d. Smoking, fires, grills, open flames or flammable material (other than flammable material used for the Activity); e. Weapons/firearms/ammunition; f. Personal or private celebrations (birthday/anniversary celebrations, wedding receptions, and other similar activities); g. Excessive noise; and h. Any activity that constitutes a public nuisance. 12. Termination/Modification. Upon written notice to the User, the Owner may deny a requested use, unilaterally terminate or modify this Agreement and/or the License granted by this Agreement, and/or, for one of the following reasons, preclude User from future use of the Premises: a. the User, or any person acting under the User’s authority, misuses, damages, or destroys property at a Premises; b. the User, or any person acting under the User’s authority, provides false or misleading information to the Owner, including false or misleading information about the User or the proposed Activity; c. the Owner assesses damages against the User or any person acting under the User’s authority; d. the Owner deems the Activity inappropriate for the Premises, inconsistent with the size, location, and available services at the Premises, inconsistent with public health, safety, or welfare standards, or contrary to applicable law; or 5 e. the User, or any person acting under the User’s authority, fails to fully complete or comply with the Agreement. Any modification or termination of this Agreement is effective 30 business days after the notice is issued, unless a different time is given in the notice. The Owner is not responsible for the User’s losses that may result from termination or modification of this Agreement. 13. Surrender of Premises; Restoration of Premises. Upon expiration of the Term or earlier termination of this Agreement, the User must deliver all keys to the Owner and surrender the Premises in good order and condition, reasonable wear and tear and excepted. The User shall restore the Premises, at its sole cost and expense, to its prior condition upon completion of its use and prevent the waste or deterioration of the Premises. 14. Accidents or Damage. a. The User shall provide the Owner prompt written notice of any accidents or injury upon, or damage to, the Premises as soon as practicable, but no later than three (3) business days after the occurrence necessitating the notice. Notice under this section shall be delivered to the City Manager. b. The User is financially responsible for any loss, personal injury, death, or any other damage (including incidental and consequential damages) arising from the exercise by it, or any person acting under the User’s authority, of the right of access under this Agreement, or arising out of a breach of this Agreement by the User. The Owner will determine the dollar amount in the event of damage to the Premises and will charge the User accordingly. The User must reimburse the Owner for any damage to the Premises within thirty (30) calendar days after notice from the Owner. 15. Indemnification. To the fullest extent permitted by law, the User shall indemnify, defend, and hold harmless the Owner, its elected or appointed officials, agents, boards, commissions and employees (hereinafter referred to collectively as the “Owner” in this Section) from and against any claims, demands, suits, actions, loss, injury, liability, damage, lien, cost or expense, including reasonable attorneys’ fees and litigation expenses, related to, arising from, caused by, or in connection with: (i) the use of the Premises by the User (including, without limitation, any services and/or professional services rendered by the User, any person acting under the User’s authority, or any subcontractor of User), by any person acting under the User’s authority, any subcontractor of the User, or by any person on the Premises in relation to the Activity the User conducts in or on the Premises; (ii) a breach of this Agreement by the User; (iii) the negligent or willful acts or omissions of User, any person acting under User’s authority, any subcontractor of the User, or by any person on the Premises in relation to the Activity the User conducts in or on the Premises; (iv) the Owner entering into this Agreement; and/or (v) the acts or omissions of the Owner acting pursuant to or in furtherance of this Agreement. The User’s foregoing 6 responsibility to indemnify, defend, and hold harmless the Owner extends to any incidents resulting from the failure to use caution while on the Premises. The Owner shall in all instances, except for loss, damages or claims resulting from the willful misconduct of the Owner, be indemnified by User against all such loss, damages or claims, regardless of whether the loss, damages or claims are caused in part by the negligence or fault of the Owner. The Owner shall give the User prompt notice of any claim made or suit instituted that may subject the User to liability under this section, and the User shall have the right to compromise and defend the same to the extent of its own interest. The Owner will have the right, but not the duty, to participate in the defense of any claim or litigation with attorneys of the Owner’s selection without relieving User of any obligations hereunder. This agreement to indemnify and hold harmless will survive expiration and termination of this Agreement. 16. Insurance. The User shall procure and at all times maintain, at its sole cost and expense, in full force and effect, during the term of this Agreement, insurance with the following types and amounts of insurance for its Activity on the Premises: a. Commercial general liability and Premises damage insurance in the amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) combined aggregate. b. Worker’s Compensation Insurance: User shall procure and provide Worker’s Compensation insurance coverage subject to state minimum requirements. c. Medical Malpractice liability insurance in the amount of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) combined aggregate. d. Such other insurance as the Owner determines to be necessary for the Activity. e. All insurance provided for hereinabove shall be effected under valid and enforceable policies issued by insurers satisfactory to the Owner. All insurance shall be primary, noncontributory, not contingent upon, and not in excess of any other insurance, and shall be carried in favor of and contain a waiver of subrogation naming “City of Surprise, its departments, agencies, boards, commissions, and its officers, officials, agents and employees” for losses arising from work or activity performed at the Premises by or on behalf of the User. All insurance policies shall also name “City of Surprise, its departments, agencies, boards, commissions, and its officers, officials, agents and employees” as an additional insured for losses arising from work or activity performed at the Premises by or on behalf of the User. Each insurance policy required by this Agreement shall provide the required coverage and may not be suspended, voided, canceled, or reduced in coverage limits except after thirty (30) days prior written notice has been given to the Owner, except when cancellation is for non- payment of premium, then ten (10) days’ notice may be given. Such notice shall be sent directly to the City Procurement Department and shall be sent by certified mail, return receipt requested. This insurance obligation will survive expiration and termination of this Agreement. 7 f. Prior to commencing the Activity upon the Premises, the User shall furnish the Owner with certificates of insurance and formal endorsements, issued by the insurers, as evidence that policies providing the required coverages, conditions and limits by this Agreement are in full force and effect. If a policy does expire during the term of this Agreement, a renewal certificate shall be sent to the Owner fifteen (15) days prior to the expiration date. Certificates should be sent to: (i) City of Surprise Procurement Division, 16000 N Civic Center Plaza, Surprise, AZ 85374-7470, and (ii) City of Surprise Risk Management Division, 16000 N Civic Center Plaza, Surprise, AZ 85374-7470. g. The Owner in no way warrants that the minimum limits contained herein are sufficient to protect the User from liabilities that may arise out of the performance of the Activity on the Premises pursuant to this Agreement by the User, its agents, representatives, or employees, and the User is free to purchase such additional insurance as it may deem necessary. The parties acknowledge that the User is self-insured as provided in Ariz. Rev. Stat. § 11-981 and that this self-insurance complies with the insurance requirements of this Agreement, including, without limitation, General Liability, Worker’s Compensation, and Medical Malpractice insurance requirements. 17. Release. The User releases the Owner from all claims and demands of any kind which User has had, claims to have had, or might subsequently accrue, arising from the exercise by User, or any person acting under the User’s authority, of the right of access under this Agreement or arising out of a breach of this Agreement by the User. The Owner does not accept responsibility for any equipment or personal property left, stored, or used on the Premises. This release does not include any claim arising out of the intentional misconduct of the Owner, elected officials, directors, officers, employees, or agents. This release will survive the termination of this Agreement. 18. Remedies. a. User’s sole remedy for any breach or threatened breach of this Agreement by the City shall be an action for equitable or injunctive relief. b. The Owner may pursue any remedy at law, including but not limited to injunctive relief, civil trespass, and withholding other City permits and authorizations until User complies with the terms of this Agreement or any applicable law. Such Owner remedies are cumulative and may be pursued in the alternative. The Owner’s remedies set forth in this Agreement are not exclusive. Election by the Owner of one remedy, including assessment of liquidated damages, does not preclude the use of other remedies. 19. Other Important Provisions. a. Modification. Any amendment of this Agreement shall be in writing, signed by the parties. 8 b. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. But if any provision of this Agreement is deemed invalid by a court of competent jurisdiction, that provision shall be severed, and the remaining provisions shall otherwise remain in full force and effect. c. Entire Agreement. This Agreement constitutes the entire agreement between the parties. All terms and conditions contained in any other writings previously executed by the parties, and all prior and contemporaneous arrangements and understandings between the parties, are superseded by this Agreement. No agreements, statements, or promises about the subject matter of this Agreement are binding or valid unless contained in this Agreement. d. Applicable Law; Litigation Costs. This Agreement is be governed by, and construed and enforced in accordance with, the laws of the State of Arizona without regard to conflict of laws principles. For purposes of litigation involving this Agreement, exclusive venue and jurisdiction shall be in the Maricopa County Superior Court. In the event of any litigation between the parties arising under this Agreement, each party shall bear its own cost of attorney’s fees, expert witness fees, and other costs incurred in connection with such litigation, notwithstanding A.R.S. §§ 12-341, 12-341.01, and/or 12-341.02. e. Headings and Construction. Descriptive headings are inserted only for convenience and do not affect the meaning of any provision. Where the context requires, the singular shall be construed as the plural, and neuter pronouns shall be construed as masculine and feminine pronouns, and vice versa. This Agreement shall be construed according to its fair meaning and any rule of construction to the effect that ambiguities are to be resolved against the drafting party do not apply in the interpretation of this Agreement. f. No Agency. This Agreement does not make either one of the parties, its officers, employees or agents, an officer, employee or agent of the other party. g. No Partnership; Third Parties. This Agreement does not create any partnership, joint venture or other arrangement between the parties. This Agreement is not for the benefit of any non-party, and no third party has any right or cause of action under this Agreement. h. Warranty of Authority. The persons executing this Agreement warrant that they are authorized by the respective party whom they represent to execute this Agreement. i. Effective Date. This Agreement is effective after it is signed by all parties. j. Transfer. The User may not transfer this Agreement by assignment, sublease, or otherwise without the express written consent of the Owner. k. No Encumbrances. The User may not encumber the Premises or any improvement to the Premises in any way. l. Prior Appropriations. User understands that the continuation of this Agreement is subject to the budget of the Owner providing for the contract item as expenditure. The Owner cannot assure that the budget item for funding this Agreement will be approved in the future. In such event, the Owner may terminate this Agreement. 9 m. Conflict of Interest. This Agreement is subject to the provisions of ARIZ. REV. STAT. § 38-511. The Owner may cancel this Agreement without penalty or further obligations by the Owner or any of its departments or agencies if any person significantly involved in initiating, negotiating, securing, drafting, or creating this Agreement on behalf of the Owner or any of its departments or agencies is at any time while the Agreement or any extension of the Agreement is in effect, an employee or agent of any other party to the Agreement in any capacity or a consultant to any other party of the Agreement with respect to the Agreement subject. n. Compliance with Federal Immigration Laws and Regulations. User warrants that it complies with all federal immigration laws and regulations that relate to its employees and that it complies with A.R.S. § 23-214(A). User acknowledges that pursuant to A.R.S. § 41-4401, a breach of this warranty is a material breach of this Agreement subject to penalties up to and including termination of this Agreement, and that the Owner retains the legal right to inspect the papers of any employee who works on the Agreement to ensure compliance with this warranty. o. Compliance with A.R.S. § 35-393.01. User hereby certifies that it does not, and will not, participate in during the term of this contract, a boycott of Israel in accordance with Arizona Revised Statute §35-393.01. User hereby agrees to indemnify and hold harmless the Owner, its agents and employees from any claims or causes of action relating to the Owner’s action based upon reliance upon this representation, including the payment of all costs and attorney fees incurred by the Owner in defending such an action. p. Public Records. This Agreement is subject to Arizona public records law. 10 By signing below, the undersigned affirms that he/she has the authority to sign on behalf of the User, and that the undersigned has read, understands, and agrees to the provisions of this Agreement. This Agreement is not effective until both parties sign. “Owner” City of Surprise, an Arizona municipal corporation ________________________________ Name: __________________________ Title: ____________________________ Date: ____________________________ “User” In witness whereof, the parties agree to enter into this Agreement: For and behalf of Maricopa County: ________________________ Bill Gates, Chairman, Board of Supervisors _____________ Date Attest: ________________________ Juanita Garza, Clerk of the Board _____________ Date Approved as to form: ________________________ Anne Longo, Attorney for Maricopa County _____________ Date