RT OF ENTRY RE AMD 1 P-50263 PHOENIX CITY.PDF

P-50263
C-85-15-019-3-01
Amendment No. 1 to
Right of Entry and Access Agreement for an Air Quality Monitor
At Phoenix Deer Valley Airport
No. 141245
This Amendment No. 1 (Amendment) to Right of Entry and Access
Agreement for an Air Quality Monitor at Phoenix Deer Valley Airport No. 141245
(Access Agreement) is made and entered into by and between the City of Phoenix,
an Arizona municipal corporation (City), and Maricopa County, a political subdivision
of the State of Arizona (County). This Amendment is effective when signed by the
City.
RECITALS
A. The City owns and operates Phoenix Deer Valley Airport (Airport)
located at 702 West Deer Valley Road, Phoenix, Arizona.
B. On March 11, 2015, the City and the County entered into the Access
Agreement, which, among other things, granted the County the privilege of
installing, maintaining, and operating air quality monitors on a portion of the Airport.
C. The City and the County desire to mutually agree to exercise the first
of two options to extend the Term of the Access Agreement from March 11, 2018
through and including March 10, 2019.
AMENDMENT
The Parties amend the Access Agreement as follows:
1. Section Two, Term, is amended by adding the following at the end of
the paragraph:
The Parties hereby mutually agree to exercise the first option to
extend the Term for one (1) year from March 11, 2018 through and
including March 10, 2019. The Term may be extended for one (1)
more year by mutual written agreement of the Parties.
2. This Amendment may be executed in counterparts, all of which, when
taken together, will constitute this Amendment.
3. Section Twenty, Notices, Subsection 20.2 is deleted and replaced with
the following:
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Notice shall be given to the Parties as follows:
City Department: City of Phoenix Aviation Department
Business and Properties Division
2845 East Buckeye Road
Phoenix, AZ 85034-4420
Attn: Deputy Aviation Director
Telephone: 602-273-4391
City: Joe Gibbs
Environmental Quality Specialist
200 W. Washington St.
Phoenix, AZ 85003
Telephone: 602-534-1776
County: Maricopa County Air Quality Department
Attn: Air Quality Director
1001 N. Central Ave, Suite 125
Phoenix, AZ 85004
Telephone: 602-506-6010
With a copy to: Maricopa County Real Estate Department
Attn: Real Estate Manager
2801 West Durango Street
Phoenix, AZ 85009
4. Exhibit B, Supplemental Terms and Conditions to All Airport
Agreements (Rev. 06/18/15), is deleted and replaced by Exhibit B-1, Supplemental
Terms and Conditions to All Airport Agreements (Rev. 07/26/17), which is attached
and incorporated herein by this reference.
5. Section Six, Laws and Regulations, is amended by deleting "Exhibit B"
and replacing it with "Exhibit B-1".
6. Except as amended herein, all other terms and conditions of the
Access Agreement shall remain in full force and effect.
(The remainder of this page was intentionally left blank.
The signature page follows.)
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P-50263
C-85-15-019-3-01
CITY OF PHOENIX, an Arizona municipal corporation
ED ZUERCHER, City Manager
James E. Bennett, A.A.E.
Director of Aviation Services
Date:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Acting City Attorney
Maricopa County, a political subdivision of the
State of Arizona
By:
Steve Chucri
Chairman of the Maricopa County Board of
Supervisors
Date:
ATTEST:
Clerk of the Board
APPROVED AS TO FORM:
Deputy County Attorney
Date:
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EXHIBIT B-1
SUPPLEMENTAL TERMS AND CONDITIONS
TO ALL AIRPORT AGREEMENTS
A. Definitions
1. "Airport" means Phoenix Sky Harbor International Airport, Phoenix
Deer Valley Airport and/or Phoenix Goodyear Airport, in accordance
with the context of the contract.
"Contract" includes any and all City of Phoenix Aviation Department
contracts, subcontracts, agreements, leases, subleases, licenses,
permits, concessions or other documents, however denominated that
grant or convey a right or privilege on an Airport, and to which this
Exhibit is annexed and made a part thereof.
3. "Contractor" means every lessee, sublessee, licensee, permittee,
concessionaire or other person, firm or corporation exercising a right
or privilege on an airport pursuant to a contract, and includes
Contractor's heirs, personal representatives, successors-in-interest
and assigns.
4. "Premises" means the leasehold or site occupied by Contractor
pursuant to the lease, license or permit that is the subject of this
Contract.
B. Assurances
1. Contractor shall furnish its services on a fair, equal and not unjustly
discriminatory basis to all users of the Airport.
2. Contractor shall charge fair, reasonable and not unjustly
discriminatory prices for each unit or services; provided that,
Contractor may be allowed to make reasonable and non-
discriminatory discounts, rebates or other similar types of price
reductions to volume purchasers. Non-compliance with this
requirement shall be a material breach of this Contract for which the
City of Phoenix shall have the right to terminate this Contract and any
estate created herewith, without liability therefor; or, at the election of
the City of Phoenix or the United States, either or both of said
Governments shall have the right to judicially enforce said
requirement.
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3. Contractor warrants that no person shall, on the grounds of race,
creed, color, national origin, sex, age or disability, be excluded from
participating in any activity conducted on or from the Premises, or
otherwise be excluded from the benefits offered by Contractor to the
general public. Contractor further warrants that it will comply with all
pertinent statutes, Executive Orders, and rules promulgated
thereunder, to assure that no person is excluded on the grounds of
race, creed, color, national origin, sex, age, or disability, including,
without limitation, Section 504 of the Rehabilitation Act of 1973, and
the Americans with Disabilities Act of 1990.
As a part of the consideration for this Contract, Contractor does
hereby covenant and agree that in the event facilities are constructed,
maintained, or otherwise operated on the Premises for a purpose for
which a DOT program or activity is extended for another purpose
involving the provision of similar services or benefits, Contractor shall
maintain and operate such facilities and services in compliance with
all other requirements imposed pursuant to Code of Federal
Regulations, Title 49, DOT, Subtitle A, Office of the Secretary of
Transportation, Part 21-Nondiscrimination in Federally-Assisted
Programs of the Department of Transportation--Effectuation of Title VI
of the Civil Rights Act of 1964, as said regulations exist and may be
amended from time-to-time.
If this Contract is a lease, then this Covenant is hereby made a
covenant running with the land for the term of the lease, and is
judicially enforceable by the United States.
5. As a part of the consideration of the Contract, Contractor does hereby
covenant and agree that: (1) no person on the grounds of race, color
or national origin shall be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of
said facilities; (2) in the construction of any improvements on, over or
under such Premises and the furnishing of services thereon, no
person on the grounds of race, color or national origin shall be
excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination; and that the contractor shall use the
Premises in accordance with all other requirements imposed pursuant
to 49 C.F.R. Part 21, as it may be amended.
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If this Contract is a lease, then this Covenant is hereby made a
covenant running with the land for the term of the lease, and is
judicially enforceable by the United States.
6. The foregoing discrimination covenants are a material part of this
Contract and for breach thereof the City of Phoenix shall have the
right to terminate this Contract and to reenter and repossess the
Premises and facilities thereon, and hold the same as if said Contract
had never been made. This provision does not become effective until
the procedures of 49 C.F.R. Part 21 are followed and completed,
including expiration of appeal rights.
7. Contractor agrees to insert the foregoing six provisions in any contract
by which Contractor grants a right or privilege to any person, firm or
corporation to render accommodations and/or services to the public
on or from the Premises.
8. Contractor agrees that it will undertake an affirmative action plan in
conformance with 14 C.F.R. Part 152, Subpart E, to insure that no
person shall on the grounds of race, creed, color, national origin or
sex be excluded from participating in any employment, contracting or
leasing activities covered in 14 C.F.R. Part 152, Subpart E.
Contractor assures that no person will be excluded on such grounds
from participating in or receiving the services or benefits of any
program or activity covered by Subpart E. Contractor further agrees
that it will require its covered suborganizations to provide assurances
to Contractor that they similarly will undertake affirmative action
programs and that they will require like assurances from their
suborganizations, as required by 14 C.F.R. Part 152, Subpart E.
9. City of Phoenix reserves the right to further develop, improve, repair
and alter the Airport and all roadways, parking areas, terminal
facilities, landing areas and taxiways as it may reasonably see fit, free
from any and all liability to Contractor for loss of business or damages
of any nature whatsoever to Contractor occasioned during the making
of such improvements, repairs, alterations and additions.
10. The City of Phoenix reserves the right, but is in no way obligated to
Contractor, to maintain and keep in repair the landing area of the
Airport and all publicly owned facilities of the Airport, together with the
right to direct and control all activities of Contractor in this regard.
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11. Contractor acknowledges that this Contract is subordinate to any
existing or future agreement between the City of Phoenix and the
United States concerning the development, operation or maintenance
of the Airport. In the event that FAA or its successors require
modifications or changes in the Contract as a condition to the
obtaining of funds for improvements at the Airport or as a requirement
of any prior grants, Contractor hereby consents to any and all such
modifications and changes as may be reasonably required and
agrees that it will adopt any such modifications or changes as part of
this Contract.
12. The Contract is subordinate to the reserved right of the City of
Phoenix, its successors and assigns, to occupy and use for the
benefit of the public the airspace above the Premises for the right of
flight for the passage of aircraft. This public right of flight shall include
the right to cause in said airspace any noise inherent in the operation
of any aircraft through said airspace or in landing at or taking off from,
or operation on an Airport.
13. Contractor agrees to comply with the notification and review
requirements as required by Title 14 of the Code of Federal
Regulations, 14 C.F.R. Part 77- Objects Affecting Navigable Airspace,
in the event future construction of a structure is planned for the
Premises, or in the event of a planned modification of a structure on
the Premises. Contractor shall submit the required FAA Form 7460-
1— Notice of Proposed Construction or Alteration—and provide
documentation showing compliance with the federal requirements.
Once the FAA has completed the aeronautical study, Contractor shall
provide to the City of Phoenix the FAA determination letter on
proposed construction and any impact to air navigation. Contractor
covenants for itself, its successors and assigns that it will not erect or
permit the erection of any structure or permit the growth of any tree,
on the Premises above the mean sea level elevation for: (1) Phoenix
Sky Harbor International Airport, 1,133 feet; (2) Phoenix Goodyear
Airport, 968 feet; (3) Phoenix Deer Valley Airport, 1,476 feet. As a
remedy for the breach of said covenant the City of Phoenix reserves
the right to enter upon the Premises and remove the offending
structure or cut the offending tree, all at the expense of Contractor.
14. Contractor, by accepting this Contract, covenants for itself, its
successors and assigns that no use will be made of the Premises that
might in any manner interfere with the landing and taking off of aircraft
from the Airport, or otherwise constitute a hazard to air navigation. As
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a remedy for the breach of said covenant the City of Phoenix reserves
the right to enter upon the Premises and cause the abatement of such
interference, all at the expense of Contractor.
15. Contractor acknowledges that nothing contained in this Contract shall
be construed to grant or authorize the granting of an exclusive right
within the meaning of 49 U.S.C. §40103(e).
16. This Contract and all the provisions hereof are subordinate to
whatever rights the United States now has or in the future may
acquire affecting the control, operation, regulation and taking-over of
the Airport, or the exclusive or non-exclusive use of the Airport by the
United States during a time of war or national emergency.
17. If the Contract involves construction, the contractor shall carry out the
project in accordance with FAA airport design, construction and
equipment standards and specifications current on the date of project
approval.
18. Contractor is encouraged to use fuel and energy conservation
practices.
C. City of Phoenix Equal Employment Opportunity Requirement
1. If Contractor is by this Contract a supplier to, or lessee of, the City,
then the requirements of the Phoenix City Code, Chapter 18, Article V
applies, including the agreement that:
"Any supplier/lessee in performing under this contract
shall not discriminate against any worker, employee or
applicant, or any member of the public, because of
race, color, religion, sex, national origin, age, or
disability, nor otherwise commit an unfair employment
practice. The supplier and/or lessee shall ensure that
applicants are employed, and employees are dealt with
during employment without regard to their race, color,
religion, sex, national origin, age, or disability, and shall
adhere to a policy to pay equal compensation to men
and women who perform jobs that require substantially
equal skill, effort, and responsibility, and that are
performed within the same establishment under similar
working conditions. Such action shall include but not be
limited to the following: employment, promotion,
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demotion or transfer, recruitment or recruitment
advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training;
including apprenticeship. The supplier further agrees
that this clause will be incorporated in all subcontracts
with all labor organizations furnishing skilled, unskilled
and union labor, or who may perform any such labor or
services in connection with this contract,"
Supplier/lessee further agrees that this clause will be
incorporated in all subcontracts, job-consultant
agreements or subleases of this agreement entered into
by supplier/lessee.
If the supplier/lessee employs more than thirty-five employees, the
following language shall be included as the last paragraph to the
clause above:
The supplier/lessee further agrees not to discriminate
against any worker, employee or applicant, or any
member of the public, because of sexual orientation or
gender identity or expression and shall ensure that
applicants are employed, and employees are dealt with
during employment without regard to their sexual
orientation or gender identity or expression."
2. Documentation. Suppliers and lessees may be required to provide
additional documentation to the Equal Opportunity Department
affirming that a nondiscriminatory policy is being utilized.
3. Monitoring. The Equal Opportunity Department shall monitor the
employment policies and practices of suppliers and lessees subject to
this article as deemed necessary. The Equal Opportunity Department
is authorized to conduct on-site compliance reviews of selected firms,
which may include an audit of personnel and payroll records, if
necessary.
D. Immigration Reform and Control Act of 1986 (IRCA)
Contractor understands and acknowledges the applicability of the IRCA to it.
Contractor agrees to comply with the provisions of IRCA as it applies to its
activities under this Contract and to permit the City of Phoenix to inspect its
personnel records to verify such compliance.
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E. Conflict of Interest
Contractor acknowledges that the terms and conditions of Arizona Revised
Statutes (A.R.S.) § 38-511 are incorporated into this Contract.
F. Legal Worker Requirements
The City is prohibited by A.R.S. § 41-4401 from awarding an agreement to
any contractor who fails, or whose subcontractors fail, to comply with A.R.S.
§ 23-214(A). Therefore, Contractor agrees that:
1. Contractor and each subcontractor it uses warrants their compliance
with all federal immigration laws and regulations that relate to their
employees and their compliance with § 23-214, subsection A.
2. A breach of warranty under paragraph 1 shall be deemed a material
breach of the Agreement and is subject to penalties up to and
including termination of the Agreement.
3. The City retains the legal right to inspect the papers of the Contractor
or subcontractor employee(s) who work(s) on this Agreement to
ensure that Contractor or subcontractor is complying with the warranty
under paragraph 1.
G. Disadvantaged Business Enterprise Requirements
1. To the extent that this Contract is covered by 49 C.F.R. Part 26,
Contractor agrees that this Contract is subject to the requirements of
the U.S. Department of Transportation Regulations at 49 C.F.R. Part
26. The Contractor or subcontractor shall not discriminate on the
basis of race, color, national origin, or sex in the performance of this
contract. The Contractor shall carry out applicable requirements of 49
C.F.R. Part 26 in the award and administration of DOT assisted
contracts. Failure by the Contractor to carry out these requirements is
a material breach of this contract, which may result in the termination
of this contract or such other remedy as the recipient deems
appropriate.
Contractor agrees to include the foregoing statement in any
subsequent Contract that it enters and cause those businesses to
similarly include said statement in further agreements.
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2. To the extent that the Contract is a concession agreement covered by
49 C.F.R. Part 23, the concessionaire or contractor agrees that it will
not discriminate against any business owner because of the owner's
race, color, national origin, or sex in connection with the award or
performance of any concession agreement, management contract, or
subcontract, purchase or lease agreement, or other agreement
covered by 49 C.F.R. Part 23.
The concessionaire or contractor agrees to include the above
statements in any subsequent concession agreement or contract
covered by 49 C.F.R. Part 23, that it enters and cause those
businesses to similarly include the statements in further agreements.
H. No Boycott Provision
If Contractor is providing services, supplies, information technology, or
construction work for City of Phoenix by entering into this Contract,
Contractor certifies that it is not currently engaged in, and agrees for
the duration of the Contract to not engage in, a boycott of Israel, as
defined in A.R.S. § 35-393 et al.
1290643
Rev. 07/26/17
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