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HomeMy WebLinkAboutResolution 2008-145 use agreement with old pueblo archaeology centerMARANA RESOLUTION N0.2008-145 RELATING TO TOWN FACILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A USE AGREEMENT BETWEEN THE TOWN OF MARANA AND OLD PUEBLO ARCHAEOLOGY CENTER REGARDING THE USE OF PORTABLE BUILDINGS AT THE MARANA OPERATIONS CENTER; AND DECLARING AN EMERGENCY. WHEREAS the Town of Marana and Old Pueblo Archaeology Center desire to enter into a use agreement regarding the Old Pueblo Archaeology Center's use of portable buildings at the Marana Operations Center; and WHEREAS the Mayor and Council of the Town of Marana feel it is in the best interests of the public to enter into this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, AS FOLLOWS: SECTION 1. The Town Council hereby approves the use agreement between the Town of Marana and Old Pueblo Archaeology Center, attached to and incorporated by this reference in this resolution as Exhibit A, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. SECTION 2. The Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the use agreement. SECTION 3. Since it is necessary for the preservation of the peace, health and safety ofthe Town of Marana that this resolution become immediately effective, an emergency is hereby declared to exist, and this resolution shall be effective immediately upon its passage and adoption. PASSED, ADOPTED, and APPROVED by the Mayor and Council of the Town of Marana, Arizona, this 5th day of November, 2008. ~.- r o`,~~~nrr/~,,' e~~ ~~~ nn~ ~'r~s Mayor Ed Ho ea f-~~ C~aooo Tf ATTEST: ~ ~~"~''s~ ~ APPROVED AS TO FORM: I,~ ,9~~iue~~u~~~°° ~~ ,~~~ 0~ Illy, `~`` ~ ;'~'" r ;~ ~'~-.-~-r~. ocelyn C ronson, Town Clerk nk Cas dy, T'~own Att ney {0001 [354. DOC /} JF 10/17/08 Use Agreement Between Town of Marana and Old Pueblo Archaeology Center This Agreement is entered into this ~_day of ~Mb2r', 2008, by and between the Town of Marana, an Arizona municipal corporation ("Town"), and Old Pueblo Archaeology Center ("Old Pueblo"), a 501(c)(3) organization. The Town and Old Pueblo are sometimes referred to in this agreement as the "Parties." Recitals A. The Marana Operations Center (hereinafter "MOC") is located at 5100 W. Ina Road. B. The Town owns three Portable Buildings that are located at the MOC. C. Old Pueblo conducts a public heritage education program at archaeological and historic sites in the Marana District Park (hereinafter "Park") at 7548 N. Silverbell Road, and desires to maintain office space and educational facilities within the Marana Town Limits and close to the Park heritage program sites. D. On August 19, 2003, the Town and Old Pueblo entered into a Use Agreement which allowed Old Pueblo to use the three Portable Buildings at the MOC to conduct its educational and research programs and business. Old Pueblo agreed to provide educational activities to the Town and to the Marana Unified School District in exchange for the use of these Portable Buildings. E. During the term of the August 19, 2003 Use Agreement, Old Pueblo constructed at its expense a metal shade structure, tubular steel and chain link fencing, an outdoor drinking fountain and sink, sidewalks and two signs at the MOC to facilitate its use of the three Portable Buildings. F. The Use Agreement entered into by the Parties on August 19, 2003, expired by its own terms on August 19, 2008. G. The Parties now desire to modify the terms of the previous Use Agreement to reflect current usage and to extend the cooperation of'the Parties relating to the Portable Buildings. Agreement Now, THEREFORE, in consideration of the foregoing promises and the mutual covenants set forth in this Use Agreement, the Parties hereby agree as follows: 1. Recitals. The foregoing Recitals are hereby incorporated in this Agreement as though fully set forth. 2. Use of Portable Buildings and Courtyard. Old Pueblo shall be allowed to continue to conduct its educational and research programs and business in and from the MOC in a space that the Town shall reserve for Old Pueblo's exclusive use to the extent allowed by law, except as required by the Town for normal property maintenance and emergency repairs. The reserved space shall include two of the three portable buildings currently located at the MOC, described as Buildings 7 and 8, as well as the center courtyard. {00010784.DOC / 2} 3. Metal Shade Structure Fencing Outdoor Drinking Fountain and Sink and Sidewalks. Old Pueblo agrees to make necessary repairs to the metal shade structure, tubular steel and chain link fencing, outdoor drinking fountain and sink and sidewalks it constructed at the MOC, if any, and to keep the metal shade structure, fencing, drinking fountain, sink and sidewalks in good, orderly and presentable condition. Upon termination of this Agreement, the metal shade structure, tubular steel and chain link fencing, outdoor drinking fountain and sink and sidewalks shall remain in their existing location and become the property of the Town. Old Pueblo shall not charge the Town any fee for the metal shade structure, fencing, drinking fountain, sink or sidewalks. 4. Insurance. Old Pueblo agrees to provide public liability and property insurance for the Portable Buildings and for the activities of the Town and its invitees in utilizing the Portable Buildings, and shall provide to the Town certificates evidencing such insurance and listing the Town as an additionally insured party. 5. Building Maintenance. Old Pueblo agrees to make necessary repairs to the Portable Buildings, if any, and to keep the Portable Buildings in good, orderly and presentable condition. Old Pueblo shall not be obligated to maintain or repair any facilities other than the buildings, structures, and utilities that directly serve Old Pueblo. 6. Utilities. Old Pueblo shall be responsible for payment of all utilities related to its use of the Portable Buildings. 7. Term and Termination of Agreement. a. Effective Date. This Agreement shall be effective following execution and approval by the Marana Town Council and the Old Pueblo Archaeology Center Board of Directors. b. Term. To the extent permitted by law, following this Agreement's execution, the Agreement shall remain in effect until December 31, 2008, unless terminated earlier according to the terms of this Agreement. c. Termination. (i) For Cause. A party may terminate the Agreement for material breach of the Agreement by the other party. Prior to termination under this paragraph, the party allegedly in default shall be given written notice by the other party of the nature of the alleged default. The party said to be in default shall have forty-five (45) days to cure the default. If the default is not cured within that time, the other party may terminate this Agreement. Any such termination shall not relieve either party from liabilities or costs already incurred under this Agreement. (ii) Conflict of Interest. Pursuant to A.R.S. § 38-511, the state, its political subdivisions or any department of either, may, within three (3) years after its execution, cancel any contract, without penalty or further obligation, made by the state, its political subdivisions, or any of the departments or agencies of either if any person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf of the state, its political subdivisions or any of the departments or agencies of either is, at any time, while the contract or any extension of the contract is in effect, an employee or agent of any other party to {00010784.DOC / 2}2 the contract in any capacity or a consultant to any other party to the contract with respect to the subject matter of the contract. 8. Legal Authority. Neither party warrants the other its legal authority to enter into this Agreement. If a court, at the request of a third person, should declare that either party lacks authority to enter into this Agreement, or any part of it, then the Agreement, or parts of it affected by such order, shall be null and void, and no recovery may be had by either party against the other for lack of performance or otherwise. 9. Ownership of propertv upon termination. The Portable Buildings used by Old Pueblo shall remain the property of the Town upon termination of this Agreement. Any usable personal property, real property and fixtures thereto acquired for purposes of this Agreement shall be the property of the purchasing party at termination of this agreement, except for the metal shade structure, tubular steel and chain link fencing, outdoor drinking fountain and sink and sidewalks which shall become the property of the Town as described in paragraph 3, above. 10. Removal of propertv upon termination. Upon termination of this Agreement, Old Pueblo shall remove the following property from the MOC: the railroad ties located under the metal shade structure and the signs it constructed on the south side of Building 8 and on the tubular steel fence on the east side of the courtyard. 11. Indemnification. a. Mutual Indemnity. To the fullest extent permitted by law, each party to this Agreement shall indemnify, defend and hold the other party, its governing board or body, officers, departments, employees and agents, harmless from and against any and all suits, actions, legal or administrative proceedings, claims, demands, liens, losses, fines or penalties, damages, liability, interest, attorneys', consultants' and accountants' fees, or costs and expenses of whatsoever kind and nature, resulting from or arising out of any act or omission of the indemnifying party, its agents, employees or anyone acting under its direction or control, whether intentional, negligent, grossly negligent, or amounting to breach of contract, in connection with or incident to the performance of this Agreement. b. Notice. Each party shall notify the other in writing within thirty (30) days of the receipt of any claims, demands, suits or judgments against the receiving party for which the party intends to invoke the provisions of this Article. Each party shall keep the other party informed on a current basis of its defense of any claims, demands, suits or judgments under this Article. c. Negligence of indemnified party. The obligations under this Article shall not extend to the negligence of the indemnified party, its agents or employees. d. Survival of termination. This Article shall survive the termination, cancellation or revocation, whether in whole or in part, of this Agreement. 12. Notification. All notices or demands upon any party to this Agreement shall be in writing, unless other forms are designated elsewhere, and shall be delivered in person or sent by mail addressed as follows: To Old Pueblo: To Town: Executive Director Town Manager's Office {00010784.DOC / 2~3 PO Box 40577 Tucson, AZ 85717-0577 Or 5100 W. Ina Road Tucson, AZ 85743 13. Construction of Agreement. 11555 W. Civic Center Dr. Marana, AZ 85653 With a copy to: Frank J. Cassidy, Town Attorney Town of Marana 11555 W. Civic Center Dr. Marana, AZ 85653 a. Entire Agreement. This instrument constitutes the entire agreement between the parties pertaining to the subject matter hereof, and all prior or contemporaneous agreements and understandings, oral or written, are hereby superseded and merged herein. b. Amendment. This Agreement shall not be modified, amended, altered or changed except by written agreement signed by both parties. c. Construction and Interpretation. All provisions of this Agreement shall be constructed to be consistent with the intention of the parties as expressed in the recitals hereof. d. Captions and Headings. Captions and headings are for index purposes only and shall not be used in construing this Agreement. e. Severability. In the event that any provision of this Agreement or the application thereof is declared invalid or void by statute or judicial decision, such action shall have no effect on other provisions and their application, and to this extent, the provisions of the Agreement are severable. In the event that any provision of this Agreement is declared invalid or void, the parties agree to meet promptly upon request of the other party in an attempt to reach an agreement on a substitute provision. 14. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or extending the legal jurisdiction of the Town or Old Pueblo. 15. No Joint Venture. It is not intended by this Agreement to, and nothing contained in this Agreement shall be construed to, create any partnership, joint venture or employment relationship between the parties or create any employer-employee relationship between Old Pueblo and any Town employees, or between the Town and any Old Pueblo employees. Neither party shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the other, including (without limitation) the other party's obligation to withhold social security and income taxes for itself or any of its employees. 16. No Third Party Beneficiaries. This Agreement is not intended to and shall not create any right in any person or entity as a third party beneficiary. {00010784.DOC / 2}4 17. Compliance with Laws. The parties shall comply with all applicable federal, state and local laws, rules, regulations, standards and executive orders, without limitation to those designated within this Agreement. a. Anti-Discrimination. The provisions of A.R.S. § 41-1463 and Executive Order Number 994 issued by the Governor of the State of Arizona are incorporated by this reference as a part of this Agreement. b. Americans with Disabilities Act. This Agreement is subject to all applicable provisions of the Americans with Disabilities Act. (Public Law 101-366, 42 U.S.C. 12101-12213) and all applicable federal regulations under the Act, including 28 CFR Parts 35 and 36. 18. Waiver. Waiver by either party of any breach of any term, covenant or condition herein contained shall not be deemed a waiver of any other term, covenant or condition, or any subsequent breach of the same or any other term, covenant or condition herein contained. 19. Force Maieure. A party shall not be in default under this Agreement if it does not fulfill any of its obligations under this Agreement because it is prevented or delayed in doing so by reason of uncontrollable forces. The term "uncontrollable forces" shall mean, for the purpose of this Agreement, any cause beyond the control of the party affected, including but not limited to failure of facilities, breakage or accident to machinery or transmission facilities, weather conditions, flood, earthquake, lightning, fire, epidemic, war, riot, civil disturbance, sabotage, strike, lockout, labor dispute, boycott, material or energy shortage, casualty loss, acts of God, or action or non-action by governmental bodies in approving or failing to act upon applications for approvals or permits which are not due to the negligence or willful action of the parties, order of any government officer or court (excluding orders promulgated by the parties themselves), and declared local, state or national emergency, which, by exercise of due diligence and foresight, such party could not reasonably have been expected to avoid. Either party rendered unable to fulfill any obligations by reason of uncontrollable forces shall exercise due diligence to remove such inability with all reasonable dispatch. 20. Remedies. Either party may pursue any remedies provided by law for the breach of the Agreement. No right or remedy is intended to be exclusive of any other right or remedy and each shall be cumulative and in addition to any other right or remedy existing at law or in equity or by virtue of this Agreement. Should either party prevail in any legal or equitable action for the purpose of protecting or enforcing its rights under this Agreement, that party shall recover in addition to all other relief, its reasonable attorney's fees and court costs to be fixed by the court. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. OLD PUEBLO ARCHAEOLOGY CENTER By Executive Director ATTEST: TOWN OF MARANA __._.~' By ayor Town Clerk {00010784. DOC / 2}5 --z~____---f .. {00010784.DOC / 2}6 APPROVED AS TO FORM: