Loading...
HomeMy WebLinkAboutResolution 2003-089 agreement with old pueblo archaeology center for district park useMARANA RESOLUTION NO. 2003-89 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, AUTHORIZING THE TOWN OF MARANA TO ENTER INTO AND THE MAYOR TO EXECUTE AN AGREEMENT WITH OLD PUEBLO ARCHAEOLOGY CENTER, A NON-PROFIT ORGANIZATION, FOR EDUCATIONAL SERVICES BY OLD PUEBLO ARCHAEOLOGY CENTER IN EXCHANGE FOR PORTABLE BUILDINGS FOR USE BY OLD PUEBLO AT THE TOWN OF MARANA OPERATIONS CENTER. WHEREAS, Old Pueblo has proposed to provide a five (5) year heritage education program; and WHEREAS, the Town of Marana finds that it is in the Town's best interests to participate in and support the heritage education program and to provide Old Pueblo with portable buildings received from the Marana Unified School District to use at the Marana Operations Center (2vlOC) in furtherance of that program; NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Marana, Arizona, authorizing the Town of Marana to enter into and the Mayor to execute an Agreement with Old Pueblo Archaeology Center, a non-profit organization, for educational services to be provided by Old Pueblo Archaeology Center to the Town of Marana and MUSD in exchange for portable buildings for use by Old Pueblo at the Town of Marana Operations Center, in accordance with the specific terms and in the form presented to the Mayor and Council concurrently with this Resolution. IT IS FURTHER RESOLVED that this Resolution is effective when the Board of Directors of the Marana Unified School District approves and executes an Intergovernmental Agreement with the Town of Marana for the District's transfer of three modular buildings to the Town in exchange for the educational services being provided by Old Pueblo (see Town of Marana Resolution 2003-91 ). PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 19th davofAugust, 200:t..__ Marana Resolution No. 2003-89 Marana District Park Use Agreement Between Town of Marana and Old Pueblo Archaeology Center This Agreement is entered into this __.day of ,2003, by and between the Town of Marana, a body politic and corporate of the State of Adzona ("Town"), and Old Pueblo Archaeology Center ("Old Pueblo"), a 501(c)(3) organization. Recitals A. The Town's Operation Center is located at 5100 W. Ina Road. B. The Town has obtained three Portable Buildings from Marana Unified School District (hereafter "District"). C. Old Pueblo has use for the Portable Buildings. D. Old Pueblo conducts a public heritage education program at archaeological and historic sites in the Marana District Park ("Park") at 7548 N. $ilverbell Road, and desires to establish office space and educational facilities within the Marana Town Limits and close to the Park hedtage program sites. E. Old Pueblo will provide educational activities to the Town and the District in exchange for the use of these Portable Buildings. Agreement 1. Recitals. The foregoing Recitals are hereby incorporated in this Agreement as though fully set forth. 2. Use of Portable Buildin.qs. Old Pueblo shall be allowed to conduct all of its educational and research programs and business in and from the Marana Operations Center (hereafter '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 be within 200 feet of existing utilities. Old Pueblo shall be allowed to move the three Portable Buildings into the reserved space. 3. Educational Services. Old Pueblo agrees to provide District and the Marana Parks and Recreation Department (hereafter ~Parks Department") with the following public education benefits under this agreement. Old Pueblo shall provide at no cost to the District two guided archaeological site tours for each District school during each school year to a site in the Park, with the understanding that the schools shall be required to make program reservations with Old Pueblo prior to participation in the free tours that are offered. Old Pueblo shall provide at no cost to the Parks Department two guided archaeological site tours for each of four Parks Department after- school and summerJ'ecreation sites (total of eight annual visits maximum) during each calendar year to a site in the Park, with the understanding that the Parks Department after-school and summe_r recreation Sites shall be required to make program reservations with Old Pueblo prior to participation in the ~ree todr_s that are offered. Each free tour for the District and for the Parks Department shall be limited to a maximum of forty participants. All other District and Parks Department participation in Old Pueblo's 'in-park education programs for which fees are normally charged shall be at the fee rates normally charged by Old Pueblo, with advance reservations required. 4. Improvements; Insurance. Old Pueblo shall relocate the Portable Buildings to the MOC and use the Portable Buildings for business activities. 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. Fundinq of Improvements. The Town of Marana will provide all site plan and engineering services and documentation required for setup of the three buildings at the MOC. The site plan shall be substantially similar to the preliminary site plan attached hereto as "Exhibit A." Old Pueblo shall pay any and all costs of moving and set up of the Portable Buildings, including without limitation any necessary modifications or improvements to the Portable Buildings required to achieve compliance with all applicable federal, state and local statutes and regulations, including without limitation the Americans with Disabilities Act (ADA). Old Pueblo shall be responsible for fees associated with permits to move and set-up the portable buildings. Old Pueblo will be allowed to connect the three modular buildings to utility services once the buildings are set up in the MOC, at Old Pueblo's cost. 6. Buildin,q Maintenance. Old Pueblo further agrees to make necessary repairs to the Portable Buildings, if any, and to keep the Portable Buildings, and all other buildings and structures that Old Pueblo may erect in its reserved space, 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. If at any time Old Pueblo shall cease to utilize the Portable Buildings for a continuous period of six months or more, the agreement as to the Portable Buildings shall terminate, and the Town shall be entitled to retake possession of the Portable Buildings. The buildings shall be returned to the Town of Marana when Old Pueblo is finished using them. Utilities. Old Pueblo shall be responsible for payment of all utilities. 8. Term and Termination of A.qreement. 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 for a minimum of five (5) years following the date of execution of this Agreement, 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-net C~uFed wi[",k3-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 2 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 the contract in any capacity or a consultant to any other party to the contract with respect to the subject matter of the contract. 9. 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 othe~vise. 10. Ownership of property upon termination. Any termination of this Agreement shall not relieve any party from liabilities or costs already incurred under 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. 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~e~g~ated:e!sewhers, and shall be delivered in persen er.sentb~'- mail addressed as follows: - To~ Old Pueblo: To Town: Executive Director Town of Marana Parks and Recreation PO Box 40577 13291 N. Lon Adams Road 3 Tucson, AZ85717-0577 Marana, AZ85653 Or With a copy to: 5100 W. Ina Road Tucson, AZ 85743 Frank J. Cassidy, Town Attorney Town of Marana 13251 N. Lon Adams Road Marana, AZ 85653-9723 13. Construction of Aqreement. 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. Leqal 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 Beheficiaries. This Agreement is not intended to and Shall not create any~ight-ir~-any person-or entity as a thi[d party beneficiary: ~ 17. Compliance with Laws. The parties shall comply with ail applicable federal, state and local laws, rules, regulations, standards and executiVe orders, without limitation to those designated within this Agreement. 4 a. Anti-Discrfmination. 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. Waver. 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 ~ 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 dght 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 TOWN OF MARANA By By President Mayor A'FI'EST: Town Clerk APPROVED AS TO FORM: Town Attorney 5