LIC AGREEMENT RE P-50169 CITY OF SCOTTSDALE.PDF

P-50169
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Revocable License Agreement
between
City of Scottsdale
and
Maricopa County
For Use of Real Property
This Revocable License Agreement for Use of Real Property (“Agreement”) entered into
by and between the City of Scottsdale, an Arizona municipal corporation, (“Licensor”) and
Maricopa County, a political subdivision of the State of Arizona (“Licensee”). The Licensor and
Licensee are sometimes referred to herein individually as a “Party” and collectively as the
“Parties”.
RECITALS
WHEREAS, Licensor is the owner of a certain real property located at 2857 North Miller
Road, Scottsdale, AZ 85257, which is legally described on Exhibit “A” (“Property”); and
WHEREAS, Licensor has allowed Licensee to install and operate an air quality monitor
station on a portion of the Property; and
WHEREAS, Licensee desires to continue to operate and maintain the air quality monitor
station on a portion of the Property, as depicted on the attached Exhibit “B” (“Monitor Site”); and
WHEREAS, Licensor is willing to grant to Licensee a license in accordance with this
Agreement (“License”) to use the Monitor Site for the uses described above; and
THEREFORE, in consideration of the foregoing and following mutual covenants and
conditions and other good and valuable consideration, receipt and sufficiency are hereby
acknowledged, it is hereby agreed as follows:
REVOCABLE LICENSE AGREEMENT
1. RECITALS INCORPORATED.
The Recitals, by this reference, are hereby incorporated and made a part of this Agreement.
2. LICENSED AREA/MONITOR SITE.
The Property is located at 2857 North Miller Road, Scottsdale, Arizona 85257, as legally described
on attached Exhibit “A” and the Monitor Site, graphically depicted on attached Exhibit “B,”
consists of roof top mounted sensing equipment (approximate area of 10’x10’) and computer and
data logging equipment located in the west half of the building (approximate area of 10’x10’).
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Other than as described in Section 5(D) herein, the License granted herein relates exclusively to
the Monitor Site and does not grant to Licensee a license for use of any other portion of the Property
outside the Monitor Site depicted on Exhibit “B”.
3. REPRESENTATIONS AND WARRANTIES.
A. Licensor represents and warrants to Licensee that: (i) Licensor, and its authorized
signatory, has full right, power and authority to execute this Agreement; (ii) Licensee’s
execution and performance of this Agreement will not violate any laws, ordinances,
covenants, mortgages, licenses or other agreements binding on Licensor.
B. Licensee represents and warrants to Licensor that (i) Licensee and its authorized signatory,
has full right, power and authority to execute this Agreement; (ii) Licensee’s execution and
performance of this Agreement will not violate any laws or ordinances.
C. Licensee has studied and inspected the Monitor Site and accepts the same in “AS IS”
condition without any express or implied warranties of any kind, other than those
warranties contained in subsection 3(A) above, including any warranties or representations
by Licensor as to title or its condition or fitness for any use. Licensee has inspected the
Monitor Site and obtained information and professional advice as Licensee has determined
to be necessary related to this Agreement.
4. GRANT OF LICENSE; TERM.
A. Nothing in this Agreement shall be construed as granting Licensee the authority to use any
property that is owned by any person or entity other than Licensor.
B. Upon the execution of this Agreement, Licensee shall pay Licensor a one-time license fee
of One Dollar ($1.00) the receipt of which is hereby acknowledged.
C. This Agreement is not intended to represent permission granted in perpetuity. Either Party
may terminate this Agreement with or without cause by giving ninety (90) days advance
written notice to the other of intent to terminate.
D. The term of this Agreement is for approximately five (5) years. It shall commence upon
execution by both Parties (“Execution Date”) and shall expire December 31, 2023
(“Expiration Date”).
E. This Agreement shall automatically renew for two (2) additional five (5) year terms
(individually a “Renewal Term”) unless cancelled by either Party upon 90-days’ prior
written notice to the other prior to the end of the initial term or any Renewal term as the
case may be, as provided for herein.
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F. If Licensee continues to occupy the Monitor Site after the expiration or termination of this
Agreement, holding over will not be considered to operate as a renewal or extension of this
Agreement.
G. Notwithstanding any provision in this Agreement to the contrary or any negotiation,
correspondence, course of performance or dealing, or other statements or acts by or
between the Parties, Licensee’s rights in the Monitor Site are limited to the rights created
by this Agreement, which create only a license in the Monitor Site, which is revocable only
as set forth expressly herein. Licensee has no real property interest in the Monitor Site
arising by virtue of the Agreement or the License granted herein. Licensee’s rights are
subject to all covenants, restrictions, easements, agreements, reservations and
encumbrances upon, and all other conditions of title to the Monitor Site. Licensee’s rights
under this Agreement are further subject to all present and future building restrictions,
regulations, zoning laws, ordinances, resolutions and orders of any local, state or federal
agency, now or later having jurisdiction over the Monitor Site or Licensor’s use of the
Monitor Site.
H. This Agreement is specific to Licensee, and may not be transferred or assigned in any
manner, without the prior written approval of Licensor, which approval may not be
unreasonably withheld.
5. USER RESTRICTIONS.
A. Licensee shall comply with and perform each thing required of Licensee herein and shall
cause all persons using the Monitor Site through or under Licensee or this Agreement to
do the same. Licensee’s failure to do so shall be a breach by Licensee of this Agreement.
B. Licensee shall not remove, damage or alter in any way any existing improvements or
personal property of Licensor within the Monitor Site without Licensor’s prior written
approval, which shall not be unreasonably withheld. Licensee shall repair any damage or
alteration to Licensor’s Property caused by Licensee (“Repairs”) to the same condition that
existed before the damage or alteration, reasonable wear and tear excepted. If Licensee
fails to repair the Monitor Site pursuant to the terms of this License granted pursuant to
this Agreement, Licensor may invoice Licensee for any and all reasonable costs associated
with the Repairs. Licensee shall pay in full any invoice for Repairs received from Licensor
within thirty (30) days.
C. Licensee shall use the Monitor Site solely for the purpose of installing and operating an air
quality monitoring station, generally consisting of the following elements: Ozone, Carbon
Monoxide, Particulates (PM-10), Wind Speed & Direction, Temperature, Relative
Humidity, and Pressure. Licensee may monitor additional elements after written request of
and approval by Licensor, which approval shall not be unreasonably withheld.
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D. Licensee shall have a non-exclusive right for ingress and egress, seven (7) days a week,
twenty-four (24) hours a day, for the authorized use, which shall be exercised so as to not
unreasonably interfere with any Licensor operations.
E. Licensee shall keep the Monitor Site maintained, orderly and clean at all times.
F. Licensee may not erect or install any signage except with express written permission by
Licensor.
G. Licensee shall not install or operate outdoor lights at the Monitor Site.
H. Subject to the terms set forth herein, Licensee acknowledges that Licensee’s use of the
Monitor Site shall be subject and subordinate to, and shall not adversely affect, Licensor’s
use of the Property and the Monitor Site.
6. HAZARDOUS WASTE.
Licensee shall not produce, dispose, transport, treat, use or store any hazardous waste or toxic
substance upon or about the Monitor Site in violation of the Arizona Hazardous Waste
Management Act, ARIZONA REVISED STATUTES (ARS) § 49-901 et seq., the Resource Conservancy
and Recovery Act, USC 2601 et seq., or any other federal, state or local law pertaining to hazardous
waste or toxic substances. Licensee shall not use the Monitor Site in a manner inconsistent with
any regulations, permits or approvals issued by any state agency. Licensee shall defend, indemnify
and hold Licensor harmless against any loss or liability incurred by reason of any hazardous waste
or toxic substance on or affecting the Monitor Site to the extent attributable to or caused by
Licensee, and shall immediately notify Licensor of any hazardous waste or toxic substance at any
time discovered or existing upon the Monitor Site. Licensee shall promptly and without a request
by Licensor provide Licensor’s Environmental Program Manager with copies of all written
communications between Licensee and any governmental agency concerning environmental
inquiries, reports or problems relating to hazardous waste or toxic substances on the Monitor Site.
7. CONSTRUCTION AND MAINTENANCE.
A. Licensee has, at its own cost, all responsibility for the installation of all improvements by
Licensee to the Monitor Site as depicted on Exhibit “B”, including costs associated with
construction, operation and maintenance, unless damage thereto is negligently or by
misconduct caused by Licensor or its agents or contractors.
B. All future improvements made by Licensee to the Monitor Site pursuant to the terms of
this Agreement are subject to and must be in compliance with all applicable codes,
ordinances and laws, including the Americans with Disabilities Act, and constructed in
conformance with the Licensor’s approved design standards. Licensee shall submit all
building and site plans to the Licensor for review and approval, which approval will not be
unreasonably withheld, prior to the commencement of construction or modification of the
Monitor Site.
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C. Licensee shall not permit any liens to be placed or remain on the Property or the Monitor
Site by virtue of any work performed under this Agreement.
D. Licensor has no maintenance or repair obligations for the Monitor Site.
8. INDEMNIFICATION.
To the fullest extent permitted by law, each Party (as “indemnitor”), its successors, assigns and
guarantors, shall defend, indemnify and hold harmless the other Party (the “indemnitee”) and any
of its elected or appointed officials, officers, directors, commissioners, board members, agents or
employees from and against any and all allegations, demands, claims, proceedings, suits, actions,
damages, including, without limitation, property damage, environmental damages, personal injury
and wrongful death claims, losses, expenses (including claim adjusting and handling expenses),
penalties and fines (including, but not limited to, attorney fees, court costs, and the cost of appellate
proceedings), judgments or obligations, which may be imposed upon or incurred by or asserted
against a Party by reason of this Agreement or the services performed or permissions granted under
it, or related to, arising from or out of, or resulting from any negligent or intentional actions, acts,
errors, mistakes or omissions caused in whole or part by the indemnitor, or any of its
subcontractors, or anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, relating to the discharge of any duties or the exercise of any rights or
privileges arising from or incidental to this Agreement, including but not limited to, any injury or
damages claimed by any of indemnitor’s and subcontractor’s employees, except such injury or
damage as shall have been occasioned by the gross misconduct or negligence of the indemnitor.
The amount and type of insurance coverage requirements set forth in the Agreement will in no
way be construed as limiting the scope of indemnity in this paragraph.
9. INSURANCE.
Licensor acknowledges that Licensee is self-insured. Licensee shall provide Licensor with a
certificate of self-insurance upon request.
10. DAMAGE OR DESTRUCTION.
Licensor has no obligation to reimburse Licensee for the loss or damage to fixtures, equipment or
other personal property, except for loss or damage as is caused by the negligence or misconduct
of Licensor or its officers, employees or agents. Licensee may insure all fixtures, equipment or
other personal property for its own protection if it so desires.
11. SURRENDER OF POSSESSION.
Upon the expiration or termination of this Agreement, Licensee’s right to occupy the Monitor Site
and exercise the privileges and rights granted under this Agreement shall cease, and it shall
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surrender and leave the Monitor Site in good condition, normal wear and tear and casualty not
caused by Licensee excepted.
12. NOTICE.
A. Except as otherwise provided, all notices required or permitted to be given under this
Agreement may be personally delivered or mailed by certified mail, return receipt
requested, postage prepaid, to the following addresses:
To Licensor: City of Scottsdale
Attn: Martha West, Sr. Real Estate Manager
7447 E. Indian School Rd., OCC 201
Scottsdale, AZ 85251
With a copy to: City of Scottsdale
Attn: Tim Conner, Environmental Initiatives Manager
7506 E. Indian School Rd., CDS 101
Scottsdale, AZ 85251
To Licensee: Maricopa County Real Estate Department
Attn: Director
2801 West Durango Street
Phoenix, AZ 85009
With a copy to Maricopa County Air Quality Department
Attn: Air Quality Manager
3800 N. Central Ave., Suite 1400
Phoenix, AZ 85012
B. Any notice given by certified mail shall be deemed to be received on the third business day
after the date of mailing. Either Party may designate in writing a different address for notice
purposes pursuant to this section.
13. SEVERABILITY.
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the
remaining terms shall remain effective, provided that elimination of the invalid provision does not
materially prejudice either Party with regard to its respective rights and obligations; in the event
of material prejudice, then the adversely Party may terminate this Agreement.
14. TAXES AND LICENSES.
A. Licensee shall pay any leasehold tax, possessory-interest tax, sales tax, personal property
tax, transaction privilege tax or other exaction assessed or assessable as a result of its
occupancy of the Monitor Site under authority of this Agreement, including any tax
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assessable on Licensor. If laws or judicial decisions result in the imposition of real property
tax on the interest of the Licensor as a result of Licensee’s occupancy of the Monitor Site,
the tax shall also be paid by Licensee on a proportional basis for the period this Agreement
is in effect.
B. Licensee shall, at its own cost, obtain and maintain in full force and effect during the term
of this Agreement any and all licenses and permits required for its activities authorized by
this Agreement.
15. ALTERNATIVE DISPUTE RESOLUTION; LITIGATION.
This Agreement shall be governed by the laws of the State of Arizona. If a dispute arises
concerning any of the terms of this Agreement, the Parties will meet and attempt in good faith to
negotiate a resolution of the dispute. If a resolution is not reached, the Parties will consider entering
into an alternative dispute resolution process, including mediation and/or arbitration. This Section
shall not foreclose the right of either Party to file a court action. In the event of any litigation or
arbitration between Licensor and Licensee arising under this Agreement, the successful Party shall
be entitled to recover its reasonable attorneys’ fees, expert witness fees, and other costs incurred
in connection with the litigation or arbitration.
16. RULES AND REGULATIONS.
Licensee shall at all times comply with all federal, state and local laws, ordinance, rules and
regulations which are applicable to its operations and the Monitor Site, including all laws,
ordinances, rules and regulations adopted after the Effective Date. Licensee shall display to
Licensor, upon request, any permits, licenses or other evidence of compliance with the law.
17. RIGHT OF ENTRY RESERVED.
A. Licensor may, at any time, enter upon the Monitor Site for any lawful purpose, so long as
the action does not reasonably interfere with Licensee’s use or occupancy of the Monitor
Site.
B. Without limiting the generality of the foregoing, Licensor and any furnisher of utilities and
other services shall have the right, at their own cost, to maintain existing and future utility,
mechanical, electrical and other systems and to enter upon the Monitor Site at all times to
make repairs, replacements or alterations thereto that may, in the opinion of the Licensor,
be deemed necessary or advisable and from time to time to construct or install over, in or
under the Monitor Site the systems or parts thereof and, in connection with maintenance,
use the Monitor Site for access to other parts in and around the Monitor Site; provided that
in the exercise of the right of access, repair, alteration or new construction, Licensor shall
not unreasonable interfere with the use and occupancy of the Monitor Site by Licensee.
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C. Exercise of any of the foregoing rights in this Section 17 by Licensor or others pursuant to
Licensor’s rights shall not constitute an eviction of Licensee, not be made the grounds for
any abatement of rent or any claim for damages.
18. OWNERSHIP OF EQUIPMENT.
It is expressly understood and agreed that Licensee retains title to all equipment installed by it and
may modify, replace or remove such equipment when necessary. Licensee and Licensor
acknowledge that all equipment and improvements of Licensee shall be deemed personal property
of Licensee.
19. CONFLICTS OF INTEREST.
This Agreement may be cancelled for conflicts of interest as described under A.R.S. § 38-511.
20. E-VERIFY.
To the extent applicable under A.R.S. § 41-4401, each Party and its respective subcontractors
warrant compliance with all federal immigration laws and regulations that relate to its employees
and compliance with the E-verify requirements under A.R.S. § 23-214(A). Each Party has the right
to inspect the papers of the other Party or its subcontractors participating in this Agreement to
ensure compliance with this paragraph. A Party’s or its subcontractors’ breach of the above-
mentioned warranty shall be deemed a material breach of the Agreement and may result in the
termination of the Agreement by a non-breaching Party under the terms of this Agreement.
21. AGREEMENT AS LICENSE.
The Parties intend and mutually agree that this Agreement shall be construed as a mere license by
Licensor to Licensee to operate within the Licensor’s Property and more specifically within the
Monitor Site. This Agreement shall not be construed as a lease, sublease, rental agreement or
easement. It is understood and mutually agreed that Licensee has no real property interest
whatsoever in the Property or Monitor Site.
22. VENUE; GOVERNING LAW.
The proper venue for any proceeding at law or at equity or under the provisions for arbitration
shall be Maricopa County, Arizona and Licensor and the Licensee hereby waive any right to object
to venue. This Agreement shall be construed in accordance with and be governed by the laws of
the State of Arizona.
23. MISCELLANEOUS.
This Agreement constitutes the entire agreement between the parties concerning the subject matter
stated and supersedes all prior negotiations, understandings and agreements between the Parties
concerning those matters, This Agreement shall be interpreted, applied and enforced according to
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the fair meaning of its terms and not be construed strictly in favor of or against either Party,
regardless of which Party may have drafted any of its provisions. No provision of this Agreement
may be waived or modified except by a writing signed by the Party against whom the waiver or
modification is sought to be enforced. This Agreement may be executed in any number of
counterpart copies, each of which shall be deemed an original, but all of which together shall
constitute a single instrument. The terms of this Agreement are binding upon and inure to the
benefit of the Parties’ successors and assigns.
24. SUBJECT TO APPROPRIATION.
This Agreement is subject to the provisions of Arizona Constitution, Article IX, § 5, and A.R.S. §
42-17106. The provisions of this Agreement for payment of funds or the incurring of expenses by
the Parties shall be effective when funds are appropriated for purposes of this Agreement and are
actually available for payment. Each Party shall be the sole judge and authority in determining the
availability of funds for its obligations under this Agreement and each Party shall keep the other
Party fully informed as to the availability of funds for this Agreement. The obligation of each Party
to make any payment pursuant to this Agreement is a current expense of such Party, payable
exclusively from such annual appropriations, and is not a general obligation or indebtedness of
such Party. If the governing body of either Party fails to appropriate money sufficient to pay the
amounts as set forth in this Agreement during any immediately succeeding fiscal year, this
Agreement shall terminate at the end of then-current fiscal year and each Party shall be relieved of
any subsequent obligation under this Agreement. County and State fiscal year end is June 30,
Federal fiscal year end is September 30.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as set forth
below.
LICENSOR: LICENSEE:
CITY OF SCOTTSDALE, MARICOPA COUNTY, a political
a municipal corporation subdivision of the State of Arizona
_____________________________________ ____________________________________
Daniel Worth, Bill Gates, Chairman of the Board
Executive Director Public Works
ATTEST:
____________________________________
Clerk of the Board Date
APPROVED AS TO FORM: APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
_____________________________________ ____________________________________
Bruce Washburn, City Attorney Date Deputy County Attorney Date
By: Margaret Wilson, Assistant City Attorney
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Exhibit “A”
Property Legal Description
Lot 1, Minor Land Subdivision Plat (Scottsdale Site 71 Booster Station and Well Site),
according to Book 1243, Page 48, records of Maricopa County, Arizona.
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Exhibit B
Monitor Site
2857 North Miller Road
Scottsdale, AZ 85257
Thomas Road
Road
Miller
N
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