LICENSE AGREEMENT P50303 RE CITY OF SCOTTSDALE.PDF
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C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 1 of 18 DM 17917890v7 REVOCABLE LICENSE AGREEMENT This license agreement (“Agreement”) is made and entered into as of the date entered below, by and between the City of Scottsdale, an Arizona municipal corporation (“City”), and Maricopa County, a political subdivision of the State of Arizona (“Licensee”). The City and the Licensee will collectively be referred to in this Agreement as the “Parties,” or individually as a “Party.” RECITALS A. The City is a municipal corporation organized under the constitution and laws of the State of Arizona. B. The City owns real property within its city limits including the Paiute Neighborhood Center located at 6535 East Osborn Road (“Facility”), which offers various Services, as hereinafter defined, for the health, social needs and general welfare of the residents of the City of Scottsdale (“Human Services”). C. The Licensee has for over twenty (20) years conducted the Head Start Program, using City playground and classroom facilities. D. The Licensee is ready, willing and able to provide Human Services of the kind and character that the City wishes to provide for the public at the Facility, and the City wishes the Licensee to provide such Services, programs or activities, subject to the terms and conditions set forth in this Agreement. E. Pursuant to Scottsdale Revised Code Section 2-221(c), the City desires to enter into this Agreement with the Licensee to establish the terms by which the Licensee may use the Facility. NOW, THEREFORE, in consideration of the covenants and promises contained in this Agreement and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows: TERMS 1.0 Recitals. The recitals which appear above are incorporated into this Agreement by this reference. 2.0 Applicability. The terms and conditions of this Agreement shall apply to the Licensee’s use of the Facility. Unless otherwise required by the context, the use of “Facility” in this Agreement shall include the plural as well as the singular. 3.0 Term. The term of this Agreement shall be for a period of three (3) years, (the “Initial Term”) commencing on July 1, 2020, and ending on June 30, 2023, unless terminated as otherwise provided in this Agreement. At the conclusion of the Initial Term or a Renewal Term as contemplated below, this Agreement may be renewed for up to two (2) successive one-year terms (each, a “Renewal Term”) upon mutual written agreement by the City Contract Administrator, as hereinafter C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 2 of 18 DM 17917890v7 defined in Section 11.1, and Licensee. The Initial Term and any Renewal Term(s) are collectively referred to herein as the “Term.” Upon renewal, the terms and conditions of this Agreement shall remain in full force and effect. 4.0 Use Area. 4.1 City provision of Use Area. The City agrees to provide the Licensee with suitable space in the Facility, subject to the terms and conditions contained in this Agreement, to enable the Licensee to render those Services and conduct the programs and activities, as applicable, as more specifically provided in Section 5.1 below. The space designated for the Licensee to provide Services (as defined in Section 5.1 below) in the Facility shall be referred to in this Agreement as the “Use Area.” The existing Use Area consists of 3,090 square feet of classroom space and a playground area as depicted in Exhibit “A” attached hereto and made a part hereof. 4.2 Acceptance of Use Area. The Licensee acknowledges by the execution of this Agreement that it has examined the Use Area which is shown on the diagram in Exhibit “A,” and the Licensee agrees that it is appropriate and suitable for providing Services. Unless otherwise provided in this Agreement, the Licensee accepts the Use Area in “as is” condition. 4.3 Changes in Use Area or Times of Use. If the Parties desire to change the Use Area or times of use (Times of Use as also set forth in Exhibit “A”) during the Term of this Agreement, the following procedure applies: 4.3.1 For a change that does not increase the aggregate size of the Use Area or total hours of use, the Parties will prepare an Amended Exhibit “A” containing a diagram showing the new Use Area with associated Times of Use and signatures of both the City Contract Administrator and the Licensee’s Contract Administrator. The Amended Exhibit “A” will then be substituted for this Agreement’s Exhibit “A.” 4.3.2 For a change that increases the aggregate size of the Use Area or total hours of use, an amendment to this Agreement is required, which is subject to Scottsdale City Council approval. 4.4 Parking. Unless otherwise specifically provided in this Agreement, no exclusive parking will be provided to the Licensee. The Licensee may use parking spaces in the Facility parking lot on a first-come, first-served basis. 4.5 Signage. The City shall furnish signage at the Facility to direct members of the public to the Licensee’s Use Area. The City will confer with the Licensee concerning signage, but the City shall have discretion to determine the signage, based upon the need for existing signage at the Facility, the need for consistency and uniformity in signage, and other considerations. The Licensee shall erect no additional signage upon the Facility or in the Use Area without the prior written approval of the City Contract Administrator. 5.0 Use of Facility; Services. 5.1 Services. The Licensee shall provide Services in the Use Area , which are more specifically described as follows: The Licensee shall conduct Head Start and Early Head Start Program pre-school classes for eligible children (“Services”). Head Start is a comprehensive early childhood development program designed to provide education, health and social services C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 3 of 18 DM 17917890v7 to low income children, ages 3, 4, and 5, and their families. Early Head Start serves children ages 1, 2, and 3. The Licensee’s use of the Facility is limited to providing Services as set forth in this Agreement. 5.2 Permitted Use of Use Area. The Use Area shall be used solely for the purposes of rendering Services to eligible members of the community. The Licensee shall not use or permit the use of the Use Area for any other purpose. 5.3 Time Restrictions. The Licensee may use the Use Area only during the times set forth in Exhibit “A.” 5.4 Background of Service Providers. The Licensee shall be responsible for ensuring that the persons providing Services, including but not limited to, the Licensee’s employees, agents and volunteers (“Service Providers”), are of good character and suitable background to do so, given the clients to whom Services are to be provided (e.g. minor children, youth, elderly, disabled, etc.). The Licensee shall provide to the City, prior to its occupation and use of any Use Area, its written policies and procedures regarding background investigation and substance abuse testing of its Service Providers. 5.5 Discrimination; diversity; other applicable laws. The Licensee shall be responsible for ensuring that its work environment is free from unlawful discrimination, as provided by Title VII of the Civil Rights Act of 1964 and other state and federal laws. The Licensee shall further ensure a commitment to respecting individual differences and valuing diversity. 5.6 Licenses; permits. The Licensee shall ensure that the Service Providers have all required and applicable licenses, permits and permissions required by federal, state, county and city statutes, ordinances, laws, rules and regulations, prior to providing Services at the Facility. All such licenses, permits and permissions must be current and in good standing. 5.7 Separation from the City. The Licensee, its officers, employees and agents shall clearly identify that it is the Licensee, rather than the City of Scottsdale, that is providing Services in the Use Area. The Licensee shall not represent that it is a part of the City of Scottsdale government, or that it is acting on behalf of the City. The Licensee shall not use the name of the City of Scottsdale, its seal, signs or logos in any advertising, promotional materials or for any other purpose without the express, written prior approval of the City Contract Administrator. 5.8 Facility rules and regulations. The City reserves the right to adopt, amend and enforce reasonable rules and regulations governing the operation of the Facility and the use of the Use Area. Rules and regulations shall be consistent with the safety, security, public use and utility of the Facility, as applicable. These rules and regulations shall apply to the Licensee, its officers, employees and agents, including all Service Providers, and the Licensee agrees to comply with them. 5.9 Representations in funding applications. The Licensee shall obtain the prior written approval of the City Contract Administrator before making any representation, in any application for a grant or other funding, that it has or will secure the continuing use of the Use Area, or any other City property, whether real, personal or financial, in connection with the application. C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 4 of 18 DM 17917890v7 5.10 Additional terms and conditions. The terms and conditions attached as Exhibit “B,” if any, are incorporated by this reference and made a part of this Agreement. 5.11 Exterior Doors. The Licensee shall keep all exterior doors closed at all times when not in use. At no time shall exterior doors be propped or otherwise left open. 6.0 Consideration; fees. 6.1 Consideration. As and for consideration for rights and privileges which are the subject of this Agreement, the Licensee agrees to pay the Use Fee and Utility Fee required herein and to provide the Services described in Section 5.0, the aggregate of which the City regards as serving a valuable public purpose, providing direct assistance to those in need, and constituting fair and direct consideration that is substantially equal to the City’s expenditure. 6.2 Use Fee. The fees in this Section 6.2 are collectively referred to herein as the “Use Fee.” For the Term of this Agreement, the Licensee shall pay to the City the following Use Fees and Utility Fees: Term Fixed Quarterly Utility Fee Use Fee Rate Quarterly Use Fee Annual Use and Utility Fee Months 1-12 $3,151.80 $8.00 per sf $6,180.00 $37,327.20 plus rental tax Months 13-24 $3,151.80 $9.00 per sf $6,952.50 $40,417.20 plus rental tax Months 25-36 $3,151.80 $10.00 per sf $7,725.00 $43,507.20 plus rental tax 6.3 Payments. The Licensee shall pay the City in advance quarterly. Payments are due within 30 days following the date of invoice. Invoices shall be sent to: HSDFinance@Maricopa.gov The Licensee shall pay any and all applicable taxes on the payments. Any payment not made by the date it is due will be subject to a late fee of $112.00 per day. Furthermore, any Use Fee that is not timely paid will accrue simple interest at the rate of 1 ½ percent per month from the date the amount first came due until paid. All billing shall be sent to Licensee to the attention of the Operations Administrator at Maricopa County Human Services Department 2150 S. Country Club Drive Mesa, Arizona 85210. 6.4 “Holdover” Use Fee. In the event of “holding over” as described in Section 13.5 below, (“Holding over,”) the Use Fee shall be $112.00 per day, increased by an additional fifty percent (50%) over the amount that would otherwise be payable under this Agreement. The Licensee shall continue providing Services. 7.0 Utility Fee. The City shall arrange and pay for gas, water, sewer, and local telephone and fax service furnished to the Use Area for the Term of this Agreement. The Licensee shall pay $3,151.80 per quarter for electricity (“Utility Fee”) during the Term of this Agreement, C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 5 of 18 DM 17917890v7 which shall be remitted to the City within thirty (30) days after receipt of the invoice from the City. The Utility Fee herein is based on $0.34 per square foot per month for electricity during the Term of this Agreement. All long distance and fax charges shall be at the expense of the Licensee. 8.0 Licensee reports and statistics. The Licensee shall report to the City Contract Administrator, monthly statistics regarding number of contacts and dollar value of the Services provided at the Facility. The City reserves the right to request additional reports and statistics from time to time. The Licensee further agrees that it will meet with the City Contract Administrator, or designee, every six (6) months this Agreement is in effect in order to discuss matters of mutual concern and interest relating to the Services being provided at the Facility. 9.0 Maintenance; Alterations/Improvements. 9.1 Maintenance; janitorial service; inspection; repair. The City shall maintain the structural elements, heating, cooling, plumbing, electrical, and other systems of the Facility, and provide general maintenance to the Facility, including the Use Area, at its own expense and shall keep them in good repair. The City reserves the right to enter the Use Area upon reasonable notice to inspect, investigate, survey and perform required maintenance and repairs. The Licensee shall provide janitorial services and trash disposal services to the Use Area at its sole cost and expense. The City reserves the right to enter the Use Area at any reasonable times to inspect, investigate, survey and perform required maintenance and repairs. Licensee, at its sole cost and expense, may pay for or reimburse City for minor incidental expenses such as lost keys or lock changes, etc. up to an amount not to exceed one thousand dollars ($1,000.00) per fiscal year, July 1 through June 30. 9.2 Alterations; Improvements. Licensee, with prior written consent of the City, may make alterations or improvements, as Licensee deems reasonably necessary, to make the Use Area and Playground suitable for use by the Licensee. The City shall not unreasonably withhold consent to make such alterations or improvements. 9.3 Waste or damage of Facility. The Licensee shall not, during any Facility use, commit or permit any waste, damage, or defacement of the Facility or its equipment, nor permit any act or use that is prohibited by any law, ordinance, rule or regulation. The Licensee shall use its best efforts to act to prevent the waste of any utilities provided by the City at the time of any Facility use. The Licensee shall be solely responsible for any damage at/to the Facility caused by the acts of the Licensee or its members, ordinary wear and tear excepted. 9.4 Licensee access; keys. The Licensee agrees to minimize the number of persons authorized to have keys to the Use Area for the performance of this Agreement and shall provide to the City Contract Administrator, in writing, the names of persons who are authorized to have the keys. The Licensee shall report any changes, additions or deletions of persons authorized to have keys to the City Contract Administrator, in writing, prior to the time that a change, addition or deletion is made. 9.4.1 Reporting; replacement costs. The Licensee shall immediately report lost, missing or stolen keys to the City Contract Administrator, or designee. The Licensee shall be responsible for all costs associated with replacing lost, missing or stolen keys, and for re-keying locks when, in the sole discretion of the City, it is determined that re-keying is necessary. C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 6 of 18 DM 17917890v7 9.4.2 Licensee responsibility for damages. The Licensee agrees that it shall be solely financially responsible for any damage to City’s real or personal property that results from the Licensee’s failure to comply with the access/security provisions contained in this Agreement. 9.4.3 Risk of loss. The Licensee is not required to purchase property insurance coverage pursuant to this Agreement. However, the Licensee agrees that it assumes the risk of any loss to the Licensee’s equipment and property brought onto the Facility. 10.0 Damage to or destruction of Use Area. If the Use Area is damaged by fire, explosion, the elements, the public enemy, or other casualty through no fault of the Licensee, then this Agreement shall terminate. If the Use Area is damaged by Licensee, its members or agents, or as a result of the Services, the Licensee shall provide funding to restore the Use Area at the Licensee’s sole cost and expense. 11.0 Contract administrator. 11.1 City Contract Administrator. Assistant City Manager William B. Murphy or designee shall be the City contract administrator (“City Contract Administrator”), who will be responsible for administering the terms of this Agreement for the City and will be the contact between the City and the Licensee. 11.2 Licensee’s Contract Administrator. Licensee’s Contract Administrator shall be the Reid Spaulding, Deputy County Manager for Maricopa County or the Real Estate Director for Maricopa County, Michelle Colby, and each, individually and separately, are hereby given the authority and charged with the responsibility for proper administration of this Agreement, whether or not specific authority is granted in any provision of this Agreement. Prior to using the Facility or upon change of Licensee’s Contract Administrator, the Licensee shall furnish to the City Contract Administrator the contact information, including phone numbers, email addresses and emergency contact information, for the Licensee’s Contract Administrator. 12.0 Notice. Any notice required or permitted to be given pursuant to this Agreement, unless otherwise expressly provided herein, shall be given in writing, either personally to the authorized representative of the other party, or by United States Postal Service certified mail, return receipt requested, as shown below or to such other street address(es) as may be designated by the respective parties in writing from time to time. The notice shall be deemed complete when received by the person receiving it or, when certified mail is used, five (5) calendar days from the date of mailing, whichever occurs first. If a copy of the notice is also given to a party’s counsel or other recipient, the date on which a notice is deemed to have been received by a party shall mean and refer to the date on which the party, and not its counsel or other recipient to which a copy of the notice may be sent, is deemed to have received the notice. City City of Scottsdale 7447 East Indian School Road, Suite 300 Scottsdale, AZ 85251 Attn: Community Services Office Manager C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 7 of 18 DM 17917890v7 Copy to: City Attorney 3939 N. Drinkwater Blvd. Scottsdale, AZ 85251 Copy to: City of Scottsdale 7447 East Indian School Road, Suite 205 Scottsdale, AZ 85251 Attn: Senior Real Estate Manager Licensee Maricopa County Real Estate Department Attn: Director 2801 West Durango Street Phoenix, Arizona 85009 Copy to: Maricopa County Human Services Early Education Division 234 North Central, 3rd Floor Phoenix, Arizona 85004 13.0 Termination; cancellation. 13.1 Termination for cause or convenience. Either Party may terminate this Agreement for cause or convenience by giving the other Party ninety (90) days’ written notice, as provided in Section 12.0 above, Notice. 13.2 Termination for health or safety. Either Party shall have the right to terminate this Agreement upon ten (10) business days’ prior written notice to the other Party if there is any threat to public health or safety in the performance of this Agreement by either Party. 13.3 Conflict of interest. Pursuant to A.R.S. § 38-511, either Party may cancel this Agreement, without penalty or further obligation, if any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of either Party is, at any time while this Agreement is in effect, an employee of the other Party in any capacity, or a consultant to the other Party with respect to the subject matter of this Agreement. The cancellation shall be effective when written notice is received by the Licensee or City, unless the notice specifies a later time. 13.4 Availability of funds. This Section will control despite any provision of this Agreement or any exhibit or other agreement or document related to this Agreement. In the event funds necessary to fulfill either Parties’ obligations under this Agreement are not appropriated by the either Parties’ funding authority, either Party may terminate this Agreement by giving notice to the other . The Parties agree to use its best efforts to give notice of such termination to the other Party at least fourteen (14) days prior to the end of that Parties’ then-current fiscal period. Termination in accordance with this provision will not constitute a breach of this Agreement by either Party. No person will be entitled to any compensation, damages or other remedy from either Party if this Agreement is terminated pursuant to the terms of this Section. C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 8 of 18 DM 17917890v7 13.5 “Holding Over.” In any circumstance whereby the Licensee would remain in possession or occupancy of the Use Area after termination or expiration of this Agreement, such “holding over” shall not be deemed to operate as a renewal or extension of this Agreement, but shall only create a use right from month to month which may be terminated at any time by the City upon thirty (30) days’ notice to the Licensee, or by the Licensee upon thirty (30) days’ notice to the City. Except as provided in this Section 13.5, such use of the Use Area shall otherwise be subject to the terms and conditions specified in this Agreement, so far as applicable. Nothing contained herein shall be construed as the City’s permission for the Licensee to remain in the Use Area or as limiting the City’s remedies as to such Holding Over. 13.6 Rights at termination. The following provisions shall apply upon expiration or termination of this Agreement for any reason: 13.6.1 Delivery of possession. The Licensee shall, at the expiration of the Term or upon any sooner termination of this Agreement, without demand, peaceably and quietly quit and deliver up the Use Area to the City thoroughly cleaned, in good repair, maintained and repaired and in as good order and condition, reasonable use and wear excepted, as the same now are or in such better condition as the Use Area may hereafter be placed by the Licensee or the City. 13.6.2 Confirmation of Licensee’s obligations. Termination of this Agreement for any reason does not terminate the Licensee’s obligations arising prior to or simultaneous with, or attributable to, the termination. 13.6.3 Licensee’s personal property; re-entry. At the expiration of the Term, or upon any sooner termination of this Agreement, except for a holdover status or renewal negotiation, the Licensee shall remove all its personal property from the Use Area. The City, at its election, may re- enter the portion of the Facility occupied by the Licensee pursuant to this Agreement and may immediately demand that any property or personnel of the Licensee found therein be removed by the Licensee. If such property is not removed within thirty (30) City working days, the City may remove and store any such property in a public warehouse or at a place selected by the City at the expense of the Licensee, and may dispose of it as it sees fit, subject only to the limitations of state law. 14.0 Indemnification. 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) (hereafter 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. 14.1 Insurance provisions set forth in this Agreement are separate and independent from the indemnity provisions of this paragraph and shall not be construed in any way to limit the scope and magnitude of the indemnity provisions. The indemnity provisions of this paragraph shall not be construed in any way to limit the scope and magnitude and applicability of the insurance provisions. 15.0 Insurance representations and requirements. 15.1 General. The Licensee agrees to comply with all applicable City ordinances and state and federal laws and regulations. Without limiting any obligations or liabilities of the Licensee, the C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 9 of 18 DM 17917890v7 Licensee shall maintain, at its own expense, hereinafter stipulated minimum insurance. City acknowledges that Licensee is self-insured. Failure to maintain insurance as specified may result in termination of this Agreement at the City’s option. 15.2 No representation of coverage adequacy. By requiring insurance herein, the City does not represent that coverage and limits will be adequate to protect the Licensee. The City reserves the right to review any and all of the insurance policies and/or endorsements cited in this Agreement but has no obligation to do so. Failure to demand evidence of full compliance with the insurance requirements stated in this Agreement or failure to identify any insurance deficiency will not relieve the Licensee from, nor be construed or considered a waiver of, its obligation to maintain the required insurance at all times during the performance of this Agreement. 15.3 Coverage term. All insurance required by this Agreement shall be maintained in full force and effect until all work or Services required to be performed under the terms of this Agreement are satisfactorily performed, completed and formally accepted by the City, unless specified otherwise in this Agreement. 15.4 Policy deductibles and or self-insured retentions. The policy requirements may provide coverage that contains deductibles or self-insured retention amounts. Such deductibles or self-insured retention shall not be applicable with respect to the policy limits provided to the City. The Licensee shall be solely responsible for any deductible or self-insured retention amount. 15.5 Use of subcontractors. If any work under this Agreement is subcontracted in any way, the Licensee shall execute written agreements with its subcontractors containing the same Indemnification Clause and Insurance Requirements as stated in this Agreement protecting the City and the Licensee. The Licensee is responsible for executing the agreement with its subcontractors and obtaining Certificates of Insurance verifying the insurance requirements. 15.6 Evidence of insurance. 15.6.1 Prior to using the Facility and on or before the annual anniversary date of this Agreement, the Licensee shall furnish the City with proof of Insurance, as required by this Agreement, to provide evidence of the required coverage, conditions, and limits of coverage and that such coverage and provisions are in full force and effect. If proof of Insurance is submitted as verification of coverage, City shall reasonably rely upon the Certificate of Insurance as evidence of coverage but such acceptance and reliance shall not waive or alter in any way the insurance requirements or obligations of this Agreement. Such proof shall identify the contract number, the date of this Agreement and the Parties’ names, and shall be sent to the designated City Contract Administrator and the City of Scottsdale Senior Real Estate Manager. Proof of Insurance submitted without referencing the appropriate contract number and reference to this Agreement will be subject to rejection and may be returned or discarded. If any of the above-cited policies expire during the life of this Agreement, it is the Licensee’s responsibility to forward proof of coverage within ten (10) days after the renewal date containing all the aforementioned insurance provisions. 15.6.2 The City will accept Licensee’s self-insurance to satisfy this section so long as the certificates, to the extent permitted by law, contain the specific provisions below. C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 10 of 18 DM 17917890v7 15.6.2.1.1 City of Scottsdale, its agents, representatives, officers, directors, officials and employees is an Additional Insured, except in the circumstances where the injury is arising solely out of the premises, equipment or premises maintenance, under the following policies: Commercial General Liability 15.6.2.1.2 Auto Liability 15.6.2.1.3 Workers Compensation 15.6.2.1.4 Excess Liability - Follow Form to underlying insurance as required. 15.6.2.2 The Licensee’s insurance shall be primary insurance as respects performance of subject agreement. 15.6.2.3 All policies, except Professional Liability, if applicable, shall waive rights of recovery (subrogation) against City of Scottsdale, its agents, representatives, officers, directors, officials and employees for any claims arising out of work or Services performed by the Licensee under this Agreement. 15.6.2.4 If the Licensee receives notice that any of the required policies of insurance are materially reduced or cancelled, it will be the Licensee’s responsibility to provide prompt notice of same to the City, unless such coverage is immediately replaced with similar policies. 15.6.3 Required coverage. 15.6.3.1 Commercial general liability. The Licensee shall maintain “occurrence” form Commercial General Liability insurance with a limit of not less than $1,000,000 for each occurrence, $2,000,000 Products and Completed Operations Annual Aggregate, and a $2,000,000 General Aggregate Limit. The policy shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury, advertising injury, bodily injury, property damage, and contractual liability. For any Service that involves children or at-risk individuals, the commercial general liability must include coverage for sexual abuse and molestation. If any Excess insurance is utilized to fulfill the requirements of this paragraph, the Excess insurance shall be “follow form” equal or broader in coverage and scope than underlying insurance. 15.6.3.2 Professional liability. If the Licensee or any of the Licensee’s employees or subcontractors are licensed professionals, the Licensee shall maintain Professional Liability insurance covering errors and omissions arising out of the work or Services performed by the Licensee, or anyone employed by the Licensee, or anyone for whose acts, mistakes, errors and omissions the Licensee is legally liable, with an unimpaired liability insurance limit of $1,000,000 each claim and $2,000,000 all claims. 15.6.3.3 Automobile liability. If vehicles are used by the Licensee to perform the Services, the Licensee shall maintain Business Automobile Liability insurance with a limit of $1,000,000 each occurrence on the Licensee’s owned, hired, and non-owned vehicles assigned to or used in the performance of the Services. If vehicles are not used by the Licensee to perform the Services, this requirement for Automobile Liability may be waived. If any Excess C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 11 of 18 DM 17917890v7 insurance is utilized to fulfill the requirements of this paragraph, the Excess insurance shall be “follow form” equal or broader in coverage scope than underlying insurance. 15.6.3.4 Workers’ compensation insurance. If the Licensee has employees, the Licensee shall maintain Workers’ Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of the Licensee’s employees engaged in the performance of Services under this Agreement and shall also maintain Employers’ Liability Insurance of not less than $100,000 for each accident, $100,000 disease for each employee and $500,000 disease policy limit. 16.0 Non-assignability. The rights, privileges and responsibilities of the Licensee under this Agreement are non-assignable. 17.0 Remedies. 17.1 Available remedies. If either Party breaches any provision of this Agreement, the other Party will have all remedies that are available to it at law or in equity including, without limitation, the remedy of specific performance. 17.2 No waiver. No provision in this Agreement shall be construed, expressly or by implication, as waiver by either Party of any existing or future right and/or remedy available by law in the event of any claim of default or breach of this Agreement. The failure of either Party to insist upon the strict performance of any term or condition of this Agreement or to exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the either Party’s acceptance of Services, shall not release the Parties from any responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a waiver of any right of the Parties to insist upon the strict performance of this Agreement. 18.0 Miscellaneous. 18.1 No real property interest. Notwithstanding any provision of this Agreement to the contrary, and notwithstanding any negotiation, correspondence, course of performance or dealing, or other statements or acts by or between the Parties, the Licensee’s rights are limited to the Use Area and the Licensee’s rights in the Use Area are limited to the license rights created by this Agreement, which creates only a revocable license in the Use Area. The City and the Licensee do not by this instrument intend to create a lease, easement or other real property interest. The Licensee shall have no real property interest in the Use Area. The Licensee’s sole remedy for any breach or threatened breach of this Agreement by the City shall be an action for damages. The Licensee’s rights hereunder are subject to all covenants, restrictions, easements, agreements, reservations and encumbrances upon, and all other conditions of title to, the Use Area. Notwithstanding the preceding sentence, the City shall provide to the Licensee during the Term of this Agreement peaceable use and enjoyment of the Use Area in accordance with the terms of this Agreement. It is the Licensee’s responsibility to resolve any issues related to nearby property owners. The Licensee’s rights hereunder are further subject to all present and future building restrictions, regulations, zoning laws, ordinances, resolutions and orders of all bodies, bureaus, commissions and bodies of any municipal, county, state or federal authority, now or hereafter having jurisdiction over the Use Area or the Licensee’s use thereof. 18.2 Entire agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement, C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 12 of 18 DM 17917890v7 understanding, negotiation or representation regarding the Facility, the Use Area or the Services to be provided pursuant to this Agreement, unless such other agreement is referenced in Section 5.1 above. 18.3 Law governing; venue. This Agreement shall be governed by the laws of the State of Arizona, and suit pertaining to this Agreement may be brought only in courts in Maricopa County, Arizona. 18.4 Compliance with law. The Licensee shall perform its obligations under this Agreement in accordance with all federal, state, county and local laws, ordinances, regulations or other rules or policies as are now in effect or as may hereafter be adopted or amended. 18.5 Taxes, liens and assessments. In addition to the Use Fee, Licensee shall pay, when due and as the same become due and payable, all taxes and general and special fees, charges and assessments of every description which during the Term of this Agreement as a direct result of Licensee’s occupation of the Use Area that may be levied upon or assessed against the Use Area, the operations conducted therein, any Use Fees paid or other performances under this Agreement by either party, and all possessory interest in the Use Area and improvements and other property thereon, whether belonging to the City or the Licensee; and the Licensee agrees to indemnify, defend and hold harmless City and the Use Area and such property and all interest therein and improvements thereon from any and all such taxes and assessments, including any interest, penalties and other expenses which may be imposed, and from any lien therefor or sale or other proceedings to enforce payment thereof. The Licensee shall have the right to contest, but not the right to refuse to timely pay, any taxes and assessments. The City shall have the right from time to time to require that all of the foregoing payments be made by the Licensee through the City. The Licensee shall pay all sales, transaction privilege and similar taxes. 18.6 Amendment; modification. This Agreement may be modified only by a written amendment signed by persons duly authorized to enter into contracts on behalf of the City and the Licensee. 18.7 Arizona Legal Workers Act. Under the provisions of A.R.S. § 41-4401, the Licensee warrants to the City that the Licensee and all its subcontractors will comply with all Federal Immigration laws and regulations that relate to their employees and that the Licensee and all its subcontractors now comply with the E-Verify Program under A.R.S. § 23-214(A). A breach of this warranty by the Licensee or any of its subcontractors will be considered a material breach of this Agreement and may subject the Licensee or subcontractor to penalties up to and including termination of this Agreement or any subcontract. The Licensee will take appropriate steps to assure that all subcontractors comply with the requirements of the E-Verify Program. The Licensee’s failure to assure compliance by all its subcontractors with the E-Verify Program may be considered a material breach of this Agreement by the City. The City retains the legal right to inspect the papers of any employee of the Licensee or any subcontractor who works on this Agreement to ensure that the Licensee or any subcontractor is complying with the warranty given above. The City may conduct random verification of the employment records of the Licensee and any of its subcontractors to ensure compliance with this warranty. The Licensee agrees to C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 13 of 18 DM 17917890v7 indemnify, defend and hold the City harmless for, from and against all losses and liabilities arising from any and all violations of these statutes. 18.8 Boycott of Israel. By executing this Agreement, Licensee certifies that it is not currently engaged in and will not for the duration of this contract engage in boycott activity proscribed by A.R.S. § 35-393 et seq. 18.9 Survival of liability. All obligations of the Licensee hereunder and all warranties and indemnities of the Licensee hereunder shall survive termination of this Agreement for any reason for a period not to exceed one year. 18.10 Attorneys’ fees. In the event either party brings any action for any relief, declaratory or otherwise, arising out of this Agreement, or on account of any breach or default hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’ fees and reasonable costs and expenses, determined by the court, sitting without jury, which shall be deemed to have accrued on the commencement of such action and shall be enforceable. 18.11 Non-exclusive contract. This Agreement is entered into with the understanding and agreement that it is for the sole convenience of the City. The City reserves the right to obtain like Services from another source when necessary. 18.12 Severability. If any term or provision of this Agreement shall be found to be illegal or unenforceable, then notwithstanding such illegality or unenforceability, this Agreement shall remain in full force and effect and such term or provision shall be deemed to be deleted. In accordance with the provisions of A.R.S. § 41-194.01, should the Attorney General give notice to the City that any provisions of this Agreement violates state law or the Arizona Constitution, or that it may violate a state statute or the Arizona Constitution, and the Attorney General submits the offending provision to the Arizona Supreme Court, the offending provision(s) shall be immediately severed and struck from the Agreement, and the City and Licensee shall, within ten (10) calendar days after such notice, negotiate in good faith to resolve any issues related to the severed provision(s). If the Parties are unable to negotiate a resolution to any issues related to the severed provision(s), the City may terminate this Agreement immediately. 18.13 Exhibits. All Exhibits referred to in this Agreement are hereby incorporated by this reference. 18.14 Counterparts. This Agreement may be executed in any number of counterparts, all such counterparts shall be deemed to constitute one and the same instrument and each of said counterparts shall be deemed original hereof. 18.15 Authority. Each party warrants and represents that it has full power and authority to enter into and perform this Agreement, and that the person signing on behalf of each has been properly authorized and empowered to enter this Agreement. Each party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. [Remainder of page intentionally blank] C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 14 of 18 DM 17917890v7 IN WITNESS WHEREOF, the Parties have executed this Agreement by signing their signatures, as of the day and date first written above. 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 [Remainder of page intentionally left blank.] C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 15 of 18 DM 17917890v7 CITY OF SCOTTSDALE, an Arizona municipal corporation __________________________________________ W.J. “Jim” Lane, Mayor ATTEST: __________________________________________ Carolyn Jagger, City Clerk Date APPROVED AS TO FORM: __________________ Sherry R. Scott, City Attorney Date By: Janis L. Bladine, Senior Assistant City Attorney REVIEWED BY: __________________ Katherine Callaway, Risk Management Director William B. Murphy, Assistant City Manager [Remainder of page intentionally left blank.] C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 16 of 18 DM 17917890v7 TABLE OF EXHIBITS Exhibit Title A Diagram of Facility with Location(s) of Use Area(s) and Times of Use B Additional Terms and Conditions C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 17 of 18 DM 17917890v7 Exhibit “A” DIAGRAM OF FACILITY WITH LOCATION(S) OF USE AREA(S) AND TIMES OF USE Times of Use: The Licensee may use the Use Area during the times indicated herein. Times of Use for Building 6 “Head Start” room are between the hours of 7:00 a.m. and 5:00 p.m. on weekdays during the Term of this Agreement. Times of Use for Building 6 “Early Childhood Learning Center” room are between the hours of 7:00 a.m. and 5:00 p.m. on weekdays during the Term of this Agreement. Times of Use for the playground coincide with the Times of Use for “Head Start” and “Early Childhood Learning Center” rooms. The City reserves the right to use these areas at times other than the Times of Use. C-22-20-_____-L-00 Contract No. 2020-087-COS P-50303 Page 18 of 18 14015363v614015363v614015363v614015363v6 Exhibit “B” ADDITIONAL TERMS AND CONDITIONS Repairs needed in the Paiute Neighborhood Center “Use Area” 1) Repair or replace carpet in the Head Start classroom in the nook by the smartboard. 2) Complete Turf installation in the play area 3) Level playground where water collects after it rains.