COOPERATIVE AGREEMENT WITH MCDOWELL SONORAN CONSERVANCY.PDF
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NON-FUNDED COOPERATIVE AGREEMENT
Between
MARICOPA COUNTY
And
MCDOWELL SONORAN CONSERVANCY
C#_____________________
This Non-Funded Cooperative Agreement (hereinafter referred to as "Agreement") is made and entered
into between the County of Maricopa, a political subdivision of the State of Arizona (hereinafter referred
to as "County"), and the McDowell Sonoran Conservancy, an Arizona nonprofit corporation (hereinafter
referred to as "MSC"), together hereinafter referred to as "Parties" or individually as a "Party."
RECITALS
WHEREAS, the County is authorized to enter into this Agreement pursuant to ARS §§ 11-201, 11-
251 and 11-933; and
WHEREAS, the County, through its Parks and Recreation Department (hereinafter referred to as
"MCPRD"), provides responsible stewardship, preservation of natural and cultural resources, quality
parks, trails, outdoor education programs, services, and recreational opportunities to the public at
Maricopa County Parks and Maricopa Trail (hereinafter collectively referred to as "System"); and
WHEREAS, MSC's purpose is to preserve and advance natural open space through science,
education, and stewardship; and
WHEREAS, the nature and location of properties within the System make it a prime setting for a
wide range of projects aimed at better understanding the upper Sonoran Desert. The System is depicted
upon the map (hereinafter referred to as "Map"), attached hereto as Exhibit A and incorporated herein
by this reference; and
WHEREAS, the Parties agree that a mutually beneficial relationship by which they may work
together to accomplish an initiative to develop, align and elevate efforts to accomplish common goals and
objectives for developing cooperative applied science-based research (hereinafter referred to as
"Projects") for the benefit of the County's ecosystem, that further the mission and vision of both Parties.
NOW, THEREFORE, in consideration of the foregoing recitals, the promises and covenants set forth below,
and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged,
the Parties hereby agree as follows:
AGREEMENT
I.
PURPOSE OF AGREEMENT AND RECITALS.
A.
This Agreement will serve as a guideline for evaluating, sharing, permitting, and monitoring
Projects within the System and assuring proper reporting and credits to the County and MSC.
1.
Projects shall include, but not be limited to, studies related to natural and cultural
resources that will aid planning efforts to conserve and enhance open space for ecological
benefits for the County.
2
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2.
Research Activities are defined as all organized attempts by the Principal Investigator
(defined below) and field investigator(s) to gather biological data from the specific
location within the System for purposes of scientific evaluation.
3.
Principal Investigator(s) is defined as an investigator with scientific, institutional affiliation
and/or recognized experience conducting the specific Research Activities.
B.
The Recitals hereinabove are incorporated into this Agreement by this reference.
II.
TERM.
A.
The effective date will be the date executed by the Maricopa County Board of Supervisors (the
"Effective Date").
B.
The term of the Agreement shall begin on the Effective Date and end five (5) years after the
Effective Date.
C.
This Agreement shall automatically renew for one additional five (5) year period at the end of
the term unless either Party gives written notice to the contrary to the other Party at least sixty
(60) days prior to the end of the term.
III.
TERMINATION; DISPOSITION OF PROPERTY.
A.
Any Party may terminate this Agreement with or without cause upon furnishing the other Party
with at least sixty (60) days prior written notice. Upon termination, the Parties shall incur no
further obligation or liability under this Agreement unless a provision herein specifically states
that its obligations or liabilities continue beyond termination.
B.
Upon termination, any equipment or other personal property used in the performance of this
Agreement shall be returned to the Party holding title thereto.
C.
The Parties acknowledge that this Agreement is subject to cancellation pursuant to the
provisions of ARS § 38-511.
IV.
PROCESS.
A.
The County's authorization to proceed with Projects within the System will be considered and
approved through a two-stage process. First, any proposed Project must be supported by a
Statement of Work (hereinafter referred to as "SOW," SOW template is attached hereto as
Exhibit B and incorporated herein by this reference) that provides basic information about the
Project, specifies the terms, conditions, specific location(s) within the System, duration, and
other pertinent information. The Project will not cause harm to native species or native habitats.
If appropriate, a limited SOW and duration may be considered, allowing the County to
determine the feasibility of a more expansive Project. Second, MCPRD will review and respond
within thirty (30) days.
B.
Each SOW will be reviewed for compliance with the goals and management objectives of the
Parties, other laws, regulations, and policies. As described in the SOW, Project(s) characteristics
will guide the decision-making process of the MCPRD's Director and the MCPRD Natural
Resource Specialist or his or her respectful designee(s).
C.
The list of some of the characteristics that may result in the favorable or unfavorable
determination regarding approval of the SOW is below. This is not a comprehensive list of
characteristics, and Projects may be approved that meet some of the favorable criteria. These
characteristics apply directly to the total SOW requests. It is recognized that request(s) for the
limited SOW, designed to determine the feasibility of a more expansive Project, may not address
these criteria.
1.
A favorable determination may result if the Project includes one or more of the following:
a) Relevant and applicable to the System and County's Natural Resource Management
Plan.
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b) Relevant and applicable on a regional scale.
c) Prevents disruption to the System's natural and cultural resources, operations, and
visitors.
d) Involves Principal Investigator(s) to accomplish the desired tasks within a reasonable
timeframe.
e) Provides specific scientific objectives and/or planned results.
f) Contributes valuable information to an increased understanding of the System's
resources and contributes to effective management and/or interpretation of the
System's resources.
g) Addresses problems or questions beneficial to science or society and will providean
important contribution.
h) Limited collection and cataloging of specimen as determined by the SOW.
i)
Provides and anticipates logistical needs and details about provisions for meeting
Project(s) needs.
2.
An unfavorable determination may result if the Project includes one or more of the
following:
a) Involves Research Activities that adversely affect the experiences of System visitors.
b) Shows potential for adverse impact on the Systems' natural, cultural, or scenic
resources, particularly on the System's native wildlife or habitat or non-renewable
resources such as archeological and historic sites or special-status species.
c) Lacks a Principal Investigator.
d) There is a potential for creating a high risk of hazard to the Principal Investigator or
research team members, other System's visitors, or environments adjacent to the
specific location within the System.
e) Involves extensive collecting of natural materials or wildlife species or unnecessary
replication of existing voucher collections; requires substantial logistical,
administrative, curatorial, or Project monitoring support by County staff; or provides
insufficient lead time to allow necessary review and consultation.
f) Lacks adequate scientific detail and justification to support the study objectives and
methods.
g) Provides data of limited relevance or applicability to the System or region.
V.
JOINT RESPONSIBILITIES. These responsibilities describe the mutual expectations for working
together and sharing information.
A.
Meet annually to discuss matters relating to future or ongoing Project(s).
Parties may meet in addition to the annual meeting if agreed by both parties.
B.
During the SOW approval process, both parties will make every effort to identify any sensitive
data (e.g., locations of sensitive species, cultural sites) gathered and will determine if and how
this data will be disclosed.
C.
Any publication(s) associated with a SOW shall formally acknowledge the County and the
location within the System as a source of the data, except for sensitive data as noted. All such
articles will be shared with the County upon publication.
VI.
SEPARATE RESPONSIBILITIES
A.
The County will provide the following:
1.
Coordination: The County will provide items such as, but not limited to, stewardship,
advocacy, research, education, and coordination with park staff, and access to the System
as listed within the Project scope.
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2.
Guidance and Direction: The County will provide guidance and direction related to
acceptable use of the System resources for Projects.
3.
Joint funding: Sharing potential grant opportunities to fund work to mutual benefit.
B.
MSC will adhere to the following for each statement of work:
1.
Mitigate any physical disturbance to the specific location within the System, resulting
from the Research Activities, and repair or otherwise return it to the original or improved
(remediated or restored) condition, to the greatest extent possible, to the satisfaction of
MCPRD.
2.
Principal Investigator or field investigators must not disclose to the public location(s) of
sensitive resources (archeological/historic sites, sensitive or threatened and endangered
plants or animals) within the System in a way that would materially jeopardize the
integrity of those resources (drawing the public to sensitive sites).
3.
Participant Release of Liability, Assumption of Risk, and Indemnification Agreement
attached hereto as Exhibit C and made a part hereof shall be executed by each person
participating in the Research Activity, which clearly explains that the Project was
completed under an Agreement with the County and that without the fully executed SOW
for specific Project purposes, off-trail travel and removal of items from the System is
strictly prohibited and punishable by law.
4.
Obtain all applicable state and federal collecting licenses as appropriate to the Project.
5.
Gain cultural resource clearance for the designated research location if deemed necessary
by the County. The cost of cultural resource clearance is the responsibility of the
Conservancy.
6.
Within one (1) year after cessation of Research Activities, submit to the MCPRD's Director
and Natural Resource Specialist a Project report or journal article, to include, but not
limited to, a summary of findings and interpretations of data gathered in the specific
location within the System, unless an extension is granted by the MCPRD Director, or his
or her designee. Raw data may also be requested by filling out McDowell Sonoran
Conservancy's data-sharing Agreement.
VII.
NOTICES AND CONTACTS. Any notices required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given if (i) delivered to the Party at the address set forth below,
(ii) deposited in the US Mail, certified, to the address set forth below, (iii) given to a recognized and
reputable overnight delivery service, to the address set forth below or (iv) delivered electronically by
email with a request for a delivery receipt for the message.
For County:
Director, Maricopa County Parks & Recreation Department
48135 N Castle Hot Springs Road – Unit Operations Center
Morristown, AZ 85342
Phone: (602) 506-9500
Email: rj.cardin@maricopa.gov
For MSC:
Chief Executive Officer, McDowell Sonoran Conservancy
7729 E. Greenway Rd, Ste 100
Scottsdale, AZ 85260
Phone: 480-998-7971
Email: justin@mcdowellsonoran.org
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VIII.
INDEMNIFICATION. The Parties hereby agree that to the extent permitted by law, each Party will
defend, protect, release, indemnify and save the other Parties harmless, including any of the Parties'
departments, agencies, directors, officers, employees, elected officials or agents, from and against all
loss, expense, damage or claim of any nature whatsoever which is caused by any activity, condition
or event arising directly or indirectly, in whole or in part, out of the performance or nonperformance
by the indemnifying Party of any of the provisions of this Agreement. Each Party hereby indemnifies
the other against all liability, losses, and damages of any nature for or on account of any injuries or
death of persons or damages to or destruction of property arising, directly, or indirectly, in whole or
in part, out of or in any way connected with the performance or nonperformance of this Agreement,
except such injury or damage as shall have been occasioned by the negligence of that other Party.
The damages which are the subject of this indemnity shall include but not be limited to the damages
incurred by any Party, its departments, agencies, directors, officers, employees, elected officials, or
agents. In the event of action, the damages which are the subject of this indemnity shall include costs,
expenses of litigation, and reasonable attorneys' fees.
IX.
INSURANCE. Each Party shall maintain insurance coverage for losses associated with this Agreement
in an amount not less than:
a) General Liability: $1,000,000 per occurrence and $2,000,000 aggregate with the other Party
to be named as an additional insured.
b) Auto Liability: $500,000.
c) 'Worker's Compensation (if applicable): Arizona Statutory Limits
The County reserves the right to revise the minimum required limits of insurance during the term of
this Agreement, provided the changes are consistent with market conditions, prudent business
judgment, and industry standards. The Parties acknowledge that Maricopa County is self-insured as
provided in ARS § 11-981 and that this self-insurance fully complies with the requirements under this
section.
X.
DEFAULT. Each of the following shall constitute a material breach of this Agreement and an event of
default ("Default") hereunder: A ' 'Party's failure to observe or perform any of the material covenants,
conditions, or provisions of this Agreement to be observed or performed by that Party ("Defaulting
Party"), where such failure shall continue for a period of thirty (30) days after the Defaulting Party
receives written notice of such failure from the non-defaulting Party; provided, however, that such
failure shall not be a Default if the Defaulting Party has commenced to cure the Default within such
thirty (30) day period and thereafter is diligently pursuing such cure to completion, but the total
aggregate cure period shall not exceed ninety (90) days unless the Parties agree in writing that
additional time is reasonably necessary under such circumstances to cure such Default. In the event
a Defaulting Party fails to perform any of its material obligations under this Agreement and is in
Default pursuant to this Section, the non-defaulting Party, at its option, may terminate this
Agreement. Further, upon the occurrence of any Default and at any time thereafter, the non-
defaulting Party may, but shall not be required to, exercise any remedies now or hereafter available
to it at law or in equity.
XI.
LAWS, RULES, AND REGULATIONS. Both Parties shall, and shall cause its agents to, comply at all times
with all applicable federal, state, county, local, and city statutes, laws, ordinances, rules, regulations,
and instructions, including, without limitation, environmental, health, safety and regulations
respecting the premises used, in effect now or as may be amended or added. This compliance shall
be at each 'Party's sole cost and expense. MCPRD Park Rules are attached hereto as Exhibit C and
made a part hereof.
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XII.
SECURITY INTEREST, RIGHTS, OR BENEFITS. Each Party hereby acknowledges and agrees that this
Agreement does not give the other Party any right, title, or interest in the property owned by the
other Party, and all right, title, and interest in the property lies and remains with the respective Party.
This Agreement is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any Party against the County, its departments, agencies,
or entities, its officers, employees, or agents, or any other person.
XIII.
NON-APPROPRIATION. The County is a governmental agency which relies upon the appropriation of
funds by its governing body to satisfy its obligations. If the County reasonably determines it does not
have funds to meet its obligations under this Agreement, the County will have the right to terminate
the Agreement without penalty on the last day of the fiscal period for which funds were legally
available. In the event of such termination, the County agrees to use its best efforts to provide written
notice of its intent to terminate thirty (30) calendar days prior to the stated termination date. County
and State fiscal year-end is June 30; Federal fiscal year-end is September 30.
XIV.
ASSIGNMENT AND DELEGATION. Neither Party may assign any rights hereunder without the express,
written, prior consent of the other Party. MSC Director and MCPRD Director or their designee shall
administer this Agreement.
XV.
CONSENTS AND APPROVALS. The Parties agree to act in good faith and with fair dealing with one
another in the execution, performance, and implementation of the terms and provisions of this
Agreement. Whenever the consent, approval, or other action of a Party is required under any
provision of this Agreement, such consent, approval, or other action shall not be unreasonably
withheld, delayed, or conditioned by a Party unless the provision in question expressly authorizes
such Party to withhold or deny consent or approval or decline to take action in accordance with a
different standard, in which case the consent or approval or the decision to not take action may be
withheld, delayed or conditioned in accordance with the different standard.
XVI.
GOVERNING LAW. This Agreement shall be construed under the laws of the State of Arizona.
XVII.
E-VERIFY. To the extent applicable under ARS § 41-4401, each Party and its contractors and
subcontractors warrant their compliance with all federal immigration laws and regulations that relate
to their employees and their compliance with the E-verify requirements under ARS § 23-214(A). A
breach of the above-mentioned warranty by MSC or its contractors or subcontractors shall be deemed
a material breach of the Agreement and may result in the termination of the Agreement. The County
retains the legal right to randomly inspect the papers and records of MSC's or its contractors' or
subcontractors' employees who work on the Project to ensure that MSC and its contractors and
subcontractors are complying with the above-mentioned warranty.
XVIII.
BOYCOTT OF ISRAEL. To the extent applicable under ARS § 35-393.01, MSC certifies it is not currently
engaged in, and for the duration of this Agreement agrees not to engage in a boycott of Israel as
defined in ARS § 35-393.
XIX.
INVALIDITY OF PART OF THIS AGREEMENT. The Parties agree that should any part of this Agreement
be held to be invalid or void, the remainder of the Agreement shall remain in full force and effect and
shall be binding upon the Parties.
XX.
COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall
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EXHIBIT A
MAP
8
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EXHIBIT B
STATEMENT OF WORK (SOW) TEMPLATE
Scientific Research Permit Request – Project Scope Submission
Researcher contact information (Principal Investigator):
An estimated number of research team members and their probable assignments:
Project title:
Description of Project:
Purpose of Project:
Methods to include, but not limited to:
•
A general description of protocols and study species, including any materials proposed to be
removed; and
•
Provide detailed locations and equipment to be used in these locations; and
•
Provide estimated quantity of study specimens or samples; and
•
An approximation of the period (s) over which sampling shall occur, frequency of sampling, etc.
Sampling locations (attach map).
Project expected start date:
Project completion date:
Anticipated report date:
Possible impacts to the Park(s):
•
Are there any listed or sensitive species that will be studied or within location as a part of this
Project?
•
If yes, do you have the appropriate permits from U.S. Fish and Wildlife Sevice, Arizona Game and
Fish Department or other agency? If so, provide permits.
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Exhibit C
RELEASE OF LIABILITY,
ASSUMPTION OF RISK, AND
INDEMNIFICATION AGREEMENT
1.
ACTIVITY AND ASSOCIATED RISKS: I have chosen to participate in the following Research
Activity:
(hereinafter referred to as “the Activity”), which is organized by McDowell Sonoran Conversancy (hereinafter referred
to as “MSC”) and Maricopa County (“County”). I understand that:
•
the Activity is inherently hazardous, and I may be exposed to dangers and hazards, including some of the
following (depending on the nature of the Activity): falls, falling rocks, fractures, concussions, dangerous
weather, overexertion, overheating, injuries from my lack of fitness or conditioning, unpredictable ocean and
river currents, hypothermia, avalanches, hostile or aggressive wildlife, drowning, death, equipment failures,
and negligence of others; and
•
as a consequence of these risks, I may be seriously hurt or disabled or may die from the resulting injuries,
and of my property may also be damaged; and
•
hospital facilities, qualified medical care, and emergency medical evacuation may be limited or unavailable
during portions of the Activity; and
•
MSC and the County assume no responsibility for providing medical care during the Activity, and I will have
to pay for any medical care and/or evacuation that I incur.
In consideration of the permission to participate in the Activity, I agree to the terms contained in this document.
2. ASSUMPTION OF THE RISKS: I hereby freely assume the above-mentioned risks as well as other risks not
listed that are part of this activity, and any harm, injury or loss that may occur to me or my property as a result of my
participation in the Activity or during any transportation to or from the Activity—including any injury or loss caused
by the negligence of MSC and the County, their employees, agents and officers, its contractors, and other Activity
participants. I also understand that any equipment that I provide or may borrow or rent from MSC or the County or
any other provider I use at my own risk and that any such equipment is provided without any warranty about its
condition or suitability.
3. RELEASE OF LIABILITY: I hereby RELEASE MSC and the County, their employees, agents, officers,
and contractors, the providers of any equipment used in the Activity, land owners, municipal or governmental
providers of use permits, and their respective employees, officers, and directors (“the Released Parties”) FROM ALL
LIABILITIES, CAUSES OF ACTION, CLAIMS AND DEMANDS that arise in any way from any injury,
death, loss or harm that occur to me or to any other person or to any property during the Activity or in any way
related to the Activity, including during transportation to or from the Activity. This RELEASE includes claims for
the negligence of the Released Parties and claims for strict liability for abnormally dangerous activities. This
RELEASE does not extend to claims for gross negligence, intentional or reckless misconduct, or any other liabilities
that Arizona law does not permit to be excluded by agreement. I also agree NOT TO SUE or make a claim against
the Released Parties for death, injuries, loss or harm that occur during the Activity or are related in any way to the
Activity.
Read ALL SIDES carefully before signing.
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4. INDEMNIFICATION HOLD HARMLESS AND DEFENSE: I promise to INDEMNIFY, HOLD
HARMLESS AND DEFEND the Released Parties (defined in Section 3) against any and all claims to which
Section 3 of this agreement applies, including claims for their own negligence. I also promise to INDEMNIFY,
HOLD HARMLESS AND DEFEND the Released Parties against any and all claims for my own negligence, and
any other claim arising from my conduct during the Activity. In accordance with these promises, I will reimburse the
Released Parties for any damages, reasonable settlements and defense costs, including attorney’s fees, that they incur
because of any such claims made against them. I agree that in the event of my death or disability, the terms of this
agreement, including the indemnification obligation in this Section, will be binding on my estate, and my personal
representative, executor, administrator or guardian will be obligated to respect and enforce them.
5. AGREEMENT TO FOLLOW DIRECTIONS: I agree to follow the rules for the Activity provided to me and
to follow directions given to me by the leaders of the Activity.
6. INDEPENDENT CONTRACTORS: I acknowledge that MSC and the County have no control over and assume
no responsibility for the actions of any independent contractors providing any services for the Activity.
7. USE OF MY LIKENESS: I understand that during the Activity I may be photographed or videotaped. To the
fullest extent allowed by law, I waive all rights of publicity or privacy or pre-approval that I have for any such likeness
of me or use of my name in connection with such likeness, and I grant to MSC and the County and its assigns
permission to copyright, use, and publish (including by electronic means) such likeness of me, whether in whole or
part, in any form, without restrictions, and for any purpose.
8. SEVERABILITY: I agree that the purpose of this agreement is that it shall be an enforceable RELEASE OF
LIABILITY AND INDEMNITY as broad and inclusive as is permitted by Arizona law with respect to the Parties.
I agree that if any portion or provision of this agreement is found to be invalid or unenforceable, then the remainder
will continue in full force and effect. I also agree that any invalid provision will be modified or partially enforced to
the maximum extent permitted by law to carry out the purpose of the agreement.
9. APPLICABLE LAW, FORUM & ATTORNEY’S FEES: This agreement is governed by and shall be
construed in accordance with the laws of the state Arizona with respect to the Parties, without any reference to its
choice of law rules. I agree that any dispute arising from this Agreement or in any way associated with the Activity
shall be brought only in the state or federal courts located in the Maricopa County Superior Court of Arizona in
Phoenix, Arizona or in the U.S. District Court, Phoenix Arizona, and I agree to the jurisdiction and venue of those
courts for any such dispute. In any litigation in which the validity or enforceability of this agreement is contested, I
agree that the non-prevailing party will pay all attorney’s fees and costs of the parties seeking to uphold the agreement.
I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS AGREEMENT BY READING
IT BEFORE SIGNING IT. NO ORAL REPRESENATATIONS, STATEMENTS, OR OTHER INDUCEMENTS
TO SIGN THIS RELEASE HAVE BEEN MADE APART FROM WHAT IS CONTAINED IN THIS DOCUMENT.
I UNDERSTAND THIS IS A CONTRACT THAT AFFECTS MY LEGAL RIGHTS AND I SIGN IT OF MY OWN
FREE WILL.
Signature of Customer: ________________________________________________ Date:___________________
Name Printed: ________________________________________________ Date of birth: ___________________