REV LIC AGRM P-50311 RE WIC SVCS WITH CITY OF SCOTTDL.PDF

C-86-18-022-M-00 Contract No. 2017-142-COS
P-50311
REVOCABLE LICENSE AGREEMENT
This license agreement ("Agreement") is made and entered into this day of
, 2017, by and between the City of Scottsdale, an Arizona municipal
corporation ("City"), and Maricopa County (“County”) a political subdivision of the State of Arizona
("Licensee"). The City and the Licensee will collectively be referred to in this Agreement as the
"Parties" and are occasionally referenced individually as “Party.”
RECITALS
A. The City is a municipal corporation organized under the constitution and laws of
the State of Arizona.
B. The City owns real property within its City limits including the Paiute Neighborhood
Center, located at 6535 East Osborn Road (“Facility”), at which various services for the health,
social needs and general welfare of the public (“Human Services”) are offered.
C. The Licensee is ready, willing and able to provide Human Services of the kind and
character that the City wishes to provide for the public at the Facility and the City wishes the
Licensee to provide such services, programs or activities, subject to the terms and conditions set
forth in this Agreement.
D. Pursuant to Scottsdale Revised Code Section 2-221(c), the City desires to enter
into this Agreement with the Licensee to establish the terms by which the Licensee may use the
Facility.
NOW, THEREFORE, in consideration of the covenants and promises contained in this
Agreement and for other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:
TERMS
1.0 Recitals. The recitals which appear above are incorporated into this Agreement
by this reference.
2.0 Applicability. The terms and conditions of this Agreement shall apply to the
Licensee's use of the Facility. Unless otherwise required by the context, the use of "Facility" in
this Agreement shall include the plural as well as the singular.
3.0 Term. The initial term of the Agreement shall be for the period of three (3) years,
commencing on November 1, 2017, and ending on October 31, 2020 (“Initial Term”), unless
terminated as otherwise provided in this Agreement. After the expiration of the Initial Term, this
Agreement may be renewed for up to two (2) successive one-year terms (each, a “Renewal Term”)
upon mutual written agreement by the City Contract Administrator .(as defined in Section 11.0 below,
Contract administrator) and Licensee. The Initial Term and any Renewal Term(s) are collectively
referred to herein as the “Term.” Upon renewal, the terms and conditions of this Agreement shall
remain in full force and effect.
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4.0 Use Area.
4.1 City provision of Use Area. The City agrees to provide Licensee with suitable
space in the Facility, subject to the terms and conditions contained in this Agreement, to enable
the Licensee to render those services and conduct the programs and activities, as applicable, as
more specifically provided in section 5.1 below. The space designated for the Licensee to provide
Services (as defined in section 5.1 below) in the Facility shall be referred to in this Agreement as
the ”Use Area.” The Use Area consists of 448 square feet of space and is depicted on Exhibit “A”
attached hereto and made a part hereof.
4.2 Determination of Use Area. The City, after conferring with the Licensee, shall have
the final authority and sole discretion to determine the size and location of the Use Area, and the
times at which it will be made available to the Licensee. The Licensee acknowledges by the
execution of this Agreement that it has examined the Use Area, which is shown on the diagram on
Exhibit “A”, and the Licensee agrees that it is appropriate and suitable for providing Services. Unless
otherwise provided in this Agreement, the Licensee accepts the Use Area in “as is” condition.
4.2.1 Determination of public need. The Licensee understands and
acknowledges that the Human Services provided at the Facility are subject to continuous review
to determine the needs of the persons using the Facility and how to best respond to them. The
nature of the service to be provided or activity to be conducted, the frequency of need, scheduling
and need to coordinate other Human Services providers are all considered in determining a
suitable and appropriate Use Area. The Parties agree to confer on these matters.
4.3 [Intentionally blank]
4.4 Parking. Unless otherwise specifically provided in this Agreement, no exclusive
parking will be provided to the Licensee. The Licensee may use parking spaces in the Facility
parking lot on a first-come, first-served basis.
4.5 Signage. The City shall furnish signage at the Facility to direct members of the
public to the Licensee’s Use Area. The City will confer with the Licensee concerning signage, but
the City shall have discretion to determine the signage, based upon the need for existing signage
at the Facility, the need for consistency and uniformity in signage, and other considerations. The
Licensee shall erect no additional signage upon the Facility or in the Use Area without the prior
written approval of the City Contract Administrator.
5.0 Use of Facility; Services.
5.1 Services. The Licensee shall provide services in the Use Area (“Services”), which
are more specifically described as follows: the Licensee shall conduct the WIC Program to assist
qualified low-income women and children of nutritional risk including providing supplemental
foods, nutrition education, other community referrals, and other preventative services including
by not limited to oral health screenings for low-income pregnant, breastfeeding, and non-
breastfeeding postpartum women and for infants and children up to age five who are found to be
at nutritional risk.
The Licensee’s use of the Facility is limited to providing Services as set forth in this Agreement.
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5.2 Permitted Use of Use Area. The Use Area shall be used solely for the purposes
of rendering Services to eligible members of the community. The Licensee shall not use or permit
the use of the Use Area for any other purpose, without the prior written consent of the City
Contract Administrator.
5.3 Time Restrictions. The Licensee may use the Use Area only on Monday through
Friday and Saturdays and only from 8:00 a.m. to 5:30 p.m. with an option to have one late clinic
day (until 7:00 p.m.) per week.
5.4 Background of Service Providers. The Licensee shall be responsible for ensuring
that the persons providing Services, including but not limited to, the Licensee’s employees, agents
and volunteers (“Service Providers”), are of good character and suitable background to do so,
given the clients to whom Services are to be provided (e.g. minor children, youth, elderly, disabled,
etc.). The Licensee shall provide to the City, prior to its occupation and use of any Use Area, its
written policies and procedures regarding background investigation of its Service Providers.
5.5 Discrimination; diversity; other applicable laws. The Licensee shall be responsible
for ensuring that its work environment is free from unlawful discrimination, as provided by Title VII
of the Civil Rights Act of 1964 and other state and federal laws. The Licensee shall further ensure
a commitment to respecting individual differences and valuing diversity.
5.6 Licenses; permits. The Licensee shall ensure that the Service Providers have all
required and applicable licenses, permits and permissions required by federal, state, county and
city statutes, ordinances, laws, rules and regulations, prior to providing Services at the Facility.
All such licenses, permits and permissions must be current and in good standing.
5.7 Separation from the City. The Licensee, its officers, employees and agents shall
clearly identify that it is the Licensee, rather than the City of Scottsdale, that is providing Services
in the Use Area. Licensee shall not represent that it is a part of the City of Scottsdale government,
or that it is acting on behalf of the City. The Licensee shall not use the name of the City of
Scottsdale, its seal, signs or logos in any advertising, promotional materials or for any other
purpose without the express, written prior approval of the City Contract Administrator.
5.8 Facility rules and regulations. The City reserves the right to adopt, amend and
enforce reasonable rules and regulations governing the operation of the Facility and the use of
the Use Area. Rules and regulations shall be consistent with the safety, security, public use and
utility of the Facility, as applicable. These rules and regulations shall apply to the Licensee, its
officers, employees and agents, including all Service Providers, and the Licensee agrees to
comply with them.
5.9 Representations in funding applications. The Licensee shall obtain the prior written
approval of the City before making any representation, in any application for a grant or other funding,
that it has or will secure the continuing use of the Use Area, or any other City property, whether real,
personal or financial, in connection with the application.
5.10 Additional terms and conditions. The terms and conditions attached as Exhibit "B", if
any, are incorporated by this reference and made a part of this Agreement. There is no Exhibit “B”
to this Agreement.
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6.0 Consideration; fees.
6.1 Consideration. As and for consideration for rights and privileges which are the
subject of this Agreement, the Licensee agrees to pay the Use Fee or Adjusted Use Fee, as the
case may be, and Utility Fee or Adjusted Utility Fee, as the case may be, required herein and to
provide the Services described in section 5.0, the aggregate of which the City regards as serving
a valuable public purpose, providing direct assistance to those in need, and constituting fair and
direct consideration that is substantially equal to the City’s expenditure.
6.2 Use Fee and Utility Fee. For the Initial Term of this Agreement, the Licensee shall
pay to the City, the following Use Fees and Utility Fees:
Term Fixed Use Fee Use Fee Use and Utility Fee Annual
Monthly Rate Monthly
Utility Fee
Months 1-36 $152.32 $7.00/s.f. $261.33 $4,963.84 plus rental tax
With respect to utilities, the City shall arrange and pay for gas, water, sewer, trash removal, and
local telephone service furnished to the Use Area for the Term of this Agreement. All long
distance and facsimile charges shall be at the expense of the Licensee. The Utility Fee herein is
based on $0.34 per square foot per month for electricity during the Initial Term of this Agreement.
For any Renewal Terms, the Licensee agrees to pay the Adjusted Use Fee and Adjusted Utility
Fee and to provide the Services required herein.
6.2.1 Adjusted Utility Fee. For each Renewal Term, the Utility Fee shall
be adjusted upward (“Adjusted Utility Fee”) on the basis of changes in the United States
Consumer Price Index for all Urban Consumers (CPI-U), U.S. City average, all items, published
by the United States Bureau of Labor Statistics as of the date three (3) months prior to the
adjustment date (the “Cost of Living Index”). The Adjusted Utility Fee, represented by “R” in the
formula below, shall be equal to the then-current Cost of Living Index number as of April before
the adjustment, represented by “C” in the formula below, divided by the Cost of Living Index
number as of April 2017, represented by “M” in the formula below, and multiplied by the original
Utility Fee, represented by “$” in the formula below. This computation is expressed by the
following formula:
C
R = x$
M
Provided, that in no event shall the Adjusted Utility Fee be adjusted downward from any
previous period. If the Cost of Living Index shall no longer be published at the adjustment date,
then another similar index published by any Federal agency shall be substituted.
6.2.2 Adjusted Use Fee. For each Renewal Term, License agrees to pay
an Adjusted Use Fee which shall be calculated by increasing the Use Fee Rate by one dollar per
square foot. For Year 4, the Use Fee Rate shall be $8.00 per square foot, and for Year 5, the
Use Fee Rate shall be $9.00 per square foot.
6.3 Payments. The Licensee shall pay the City in advance monthly. Payments are
due within 30 days of invoice. The Licensee shall pay any and all applicable taxes on the
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payments. Any payment not made by the date it is due will be subject to a late fee equal to 10%
of the amount due or one hundred dollars ($100), whichever is greater. Furthermore, any Use
Fee or Adjusted Use Fee that is not timely paid will accrue simple interest at the rate of 1 ½
percent per month from the date the amount first came due until paid. All invoices shall be sent
to Licensee at the attention of the Maricopa County Public Health Department, Attn: WIC
Accountant, 4041 N. Central Avenue, Suite 700, Phoenix, AZ 85012
6.4 “Holdover” Use Fee. In the event of “holding over” as described in section 13.5
below, the Use Fee or Adjusted Use Fee shall be $112 per day, increased by an additional fifty
percent (50%) over the amount that would otherwise be payable under this Agreement. The
Licensee shall continue providing Services. The obligations of Licensee with respect to this
Section 6.4 shall survive termination of this Agreement.
7.0 [Intentionally blank]
8.0 Licensee reports and statistics. The Licensee shall report to the City Contract
Administrator monthly statistics regarding number of contacts and dollar value of Service
provided at each Facility, which statistics may reflect those in arrears. The City reserves the
right to request additional reports and statistics from time to time. The Licensee further agrees
that it will meet with the City Contract Administrator, or designee, every six (6) months this
Agreement is in effect in order to discuss matters of mutual concern and interest relating to the
Services being provided at the Facility.
9.0 Maintenance.
9.1 Maintenance; janitorial service; inspection; repair. The City shall maintain the
structural elements, heating, cooling and other systems of the Facility, including the Use Area, at
its own expense and shall keep them in good repair. The Licensee shall provide janitorial services
and trash disposal services to the Use Area at its sole cost and expense. The Licensee shall
provide such other maintenance as may be required by this Agreement. Upon reasonable notice
to the Licensee, the City reserves the right to enter the Use Area at any reasonable times to
inspect, survey and perform required maintenance and repairs.
9.2 Waste or damage of Facility. The Licensee shall not, during any Facility use,
commit or permit any waste, damage, or defacement of the Facility or its equipment, nor permit
any act or use that is prohibited by any law, ordinance, rule or regulation. The Licensee shall use
its best efforts to act to prevent the waste of any utilities provided by the City at the time of any
Facility use. The Licensee shall be solely responsible for any damage at/to the Facility caused
by the acts of the Licensee or its members, ordinary wear and tear excepted.
9.3 Licensee access; keys. The Licensee agrees to minimize the number of persons
authorized to have keys to the Use Area for the performance of this Agreement and shall provide
to the City Contract Administrator, in writing, the names of persons who are authorized to have
the keys. The Licensee shall report any changes, additions or deletions of persons authorized to
have keys to the City Contract Administrator, in writing, prior to the time that a change, addition
or deletion is made.
9.3.1 Reporting; replacement costs. The Licensee shall immediately report lost,
missing or stolen keys to the City Contract Administrator or designee. The Licensee shall be
responsible for all costs associated with replacing lost, missing or stolen keys, and for re-keying
locks when, in the sole discretion of the City, it is determined that re-keying is necessary.
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9.3.2 Licensee responsibility for damages. The Licensee agrees that it shall be
solely financially responsible for any damage to City’s real or personal property that results from
the Licensee’s failure to comply with the access/security provisions contained in this Agreement.
9.3.3 Risk of loss. The Licensee is not required to purchase property insurance
coverage pursuant to this Agreement. However, the Licensee agrees that it assumes the risk of
any loss to the Licensee’s equipment and property brought onto the premises.
10.0 Damage to or destruction of Use Area. If the Use Area is damaged by fire,
explosion, the elements, the public enemy, or other casualty through no fault of the Licensee,
then this Agreement shall terminate. In the event of fire, explosion, or other casualty caused by
Licensee, the Licensee shall restore the Use Area at the Licensee’s sole cost and expense.
11.0 Contract administrator.
11.1 City Contract Administrator. The Human Services Director for the City of
Scottsdale who at the time of execution of this Agreement is Greg Bestgen, or designee, shall be
the City contract administrator (“City Contract Administrator”), who will be responsible for
administering the terms of this Agreement for the City, and will be the contact between the City
and the Licensee.
11.2 Licensee’s Contract Administrator. Prior to the commencement of this Agreement,
the Licensee shall designate a contract administrator (“Licensee’s Contract Administrator”), who
will be responsible for administering this Agreement for the Licensee and be the contact between
the Licensee and the City. Prior to using the Facility, the Licensee shall furnish to the City
Contract Administrator, the contact information, including phone numbers, email
addresses and emergency contact information, for the Licensee’s Contract Administrator.
12.0 Notice. Any notice required or permitted to be given pursuant to this Agreement,
unless otherwise expressly provided herein, shall be given in writing, either personally to the
authorized representative of the other party, or by United States Postal Service certified mail,
return receipt requested, as shown below or to such other street address(es) as may be
designated by the respective parties in writing from time to time. The notice shall be deemed
complete when received by the person receiving it or, when certified mail is used, five (5) calendar
days from the date of mailing, whichever occurs first.
City Licensee
City of Scottsdale Maricopa County Real Estate Department
7447 East Indian School Road, Suite 300 Attn: Director
Scottsdale, AZ 85251 2801 W. Durango Street
Phoenix, AZ 85009
Attn: Community Services Office Manager
13.0 Termination; cancellation.
13.1 Termination for cause or convenience. Either Party may terminate this Agreement
for cause or convenience by giving the other Party thirty (30) days’ written notice, as provided in
section 12.0 Notice.
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13.2 Termination for health or safety. The City shall have the right to terminate this
Agreement upon two (2) City working days’ prior written notice to the Licensee, if there is any threat
to public health or safety in the performance of this Agreement by the Licensee.
13.3 Conflict of interest. Pursuant to A.R.S. § 38-511, either Party may cancel this
Agreement, without penalty or further obligation, if any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of either Party is, at any time
while this Agreement is in effect, an employee of the other Party in any capacity, or a consultant to
the other Party with respect to the subject matter of this Agreement. The cancellation shall be
effective when written notice is received by either Party, unless the notice specifies a later time.
13.4 Availability of funds. This section will control despite any provision of this Agreement
or any exhibit or other agreement or document related to this Agreement. In the event funds
necessary to fulfill the City’s or Licensee’s obligations under this Agreement are not appropriated by
the Scottsdale City Council or the Board of Supervisors or other funding body, the City or Licensee
may terminate this Agreement by giving notice to the other Party. The City and Licensee agree to
use their best efforts to give notice of such termination to the other Party at least fourteen (14) days
prior to the end of the Party’s then-current fiscal period. Termination in accordance with this provision
will not constitute a breach of this Agreement by the City or Licensee. No person will be entitled to
any compensation, damages or other remedy from the other Party if this Agreement is terminated
pursuant to the terms of this section.
13.5 “Holding over.” In any circumstance whereby the Licensee would remain in
possession or occupancy of the Use Area after termination or expiration of this Agreement, such
“holding over” shall not be deemed to operate as a renewal or extension of this Agreement, but shall
only create a use right from day to day which may be terminated at any time by the City upon one
(1) day’s notice to the Licensee, or by the Licensee upon seven (7) days’ notice to the City. Except
as provided in this section 13.5, such use of the Use Area shall otherwise be subject to the terms
and conditions specified in this Agreement, so far as applicable. Nothing contained herein shall be
construed as the City’s permission for the Licensee to remain in the Use Area or as limiting the City’s
remedies as to such “holdover.” The obligations of Licensee with respect to “holding over” shall
survive termination of the Agreement.
13.6 Rights at termination. The following provisions shall apply upon expiration or
termination of this Agreement for any reason:
13.6.1 Delivery of possession. The Licensee shall, at the expiration of the Term or
upon any sooner termination of this Agreement, without demand, peaceably and quietly quit and
deliver up the Use Area to the City thoroughly cleaned, maintained and repaired and in as good order
and condition, reasonable use and wear excepted, as the same now are or in such better condition
as the Use Area may hereafter be placed during the Term by the Licensee or the City.
13.6.2 Confirmation of Licensee’s obligations. Termination of this Agreement for any
reason does not terminate the Licensee’s obligations arising prior to or simultaneous with, or
attributable to, the termination.
13.6.3 Licensee’s personal property; re-entry. At the expiration of the Term or upon
any sooner termination of this Agreement, the Licensee shall remove all its property from the Use
Area. Upon termination or expiration of this Agreement, the City, at its election, may re-enter the
portion of the Facility occupied by the Licensee pursuant to this Agreement and may immediately
demand that any property or personnel of the Licensee found therein be removed by the Licensee.
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If such property is not removed within ten (10) business days, the City may remove and store any
such property in a public warehouse or at a place selected by the City at the expense of the
Licensee, and may dispose of it as it sees fit, subject only to the limitations of state law.
14.0 Indemnification. Each Party (as "indemnitor") agrees to indemnify, defend, and
hold harmless the other Party (as "indemnitee") from and against any and all claims, losses,
liability, costs, or expenses (including reasonable attorney's fees) (hereinafter collectively referred
to as "claims") arising out of the negligent performance of this Agreement, but only to the extent
that such claims which result in vicarious/derivative liability to the indemnitee are caused by the
act, omission, negligence, misconduct, or other fault of the indemnitor, its officers, officials,
agents, employees, or volunteers.
14.1 Insurance provisions set forth in this Agreement are separate and independent
from the indemnity provisions of this paragraph and shall not be construed in any way to limit the
scope and magnitude of the indemnity provisions. The indemnity provisions of this paragraph
shall not be construed in any way to limit the scope and magnitude and applicability of the
insurance provisions.
15.0 Insurance representations and requirements.
15.1 General. The Licensee agrees to comply with all applicable City ordinances and
state and federal laws and regulations. Without limiting any obligations or liabilities of the
Licensee, the Licensee shall purchase and maintain, at its own expense, hereinafter stipulated
minimum insurance with insurance companies duly licensed by the State of Arizona (admitted
insurer) with an AM Best, Inc. rating of B ++ 6 or above or an equivalent qualified unlicensed
insurer by the State of Arizona (non-admitted insurer) with policies and forms satisfactory to the
City. Failure to maintain insurance as specified may result in termination of this Agreement at the
City’s option.
15.2 No representation of coverage adequacy. By requiring insurance herein, the City
does not represent that coverage and limits will be adequate to protect the Licensee. The City
reserves the right to review any and all of the insurance policies and/or endorsements cited in this
Agreement but has no obligation to do so. Failure to demand evidence of full compliance with
the insurance requirements stated in this Agreement or failure to identify any insurance deficiency
will not relieve the Licensee from, nor be construed or considered a waiver of, its obligation to
maintain the required insurance at all times during the performance of this Agreement.
15.3 Coverage term. All insurance required by this Agreement shall be maintained in
full force and effect until all work or Services required to be performed under the terms of this
Agreement are satisfactorily performed, completed and formally accepted by the City, unless
specified otherwise in this Agreement.
15.4 Claims made. In the event any insurance policies required by this Agreement are
written on a “claims made” basis, coverage shall extend, either by keeping coverage in force or
purchasing an extended reporting option, for three (3) years past completion and acceptance of
the work or services as evidenced by submission of annual Certificates of Insurance citing
applicable coverage is in force and contains the provisions as required herein for the three-year
period.
15.5 Policy deductibles and or self-insured retentions. The policy requirements may
provide coverage that contains deductibles or self-insured retention amounts. Such deductibles
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or self-insured retention shall not be applicable with respect to the policy limits provided to the
City. The Licensee shall be solely responsible for any deductible or self-insured retention amount.
The City, at its option, may require the Licensee to secure payment of the deductible or self-
insured retention by a surety bond or irrevocable and unconditional Letter of Credit.
15.6 Use of subcontractors. If any work under this Agreement is subcontracted in any
way, the Licensee shall execute written agreements with its subcontractors containing the same
Indemnification Clause and Insurance Requirements as stated in this Agreement protecting the
City and the Licensee. The Licensee is responsible for executing the agreement with its
subcontractors and obtaining Certificates of Insurance verifying the insurance requirements.
15.7 Evidence of insurance.
15.7.1 Prior to using the Facility, the Licensee shall furnish the City with
Certificate(s) of Insurance, or formal endorsements as required by this Agreement, issued by the
Licensee’s insurer(s) as evidence that policies are placed with acceptable insurers as specified
in this Agreement and provide the required coverage, conditions, and limits of coverage and that
such coverage and provisions are in full force and effect. If a Certificate of Insurance is submitted
as verification of coverage, City shall reasonably rely upon the Certificate of Insurance as
evidence of coverage but such acceptance and reliance shall not waive or alter in any way the
insurance requirements or obligations of this Agreement. Such Certificates shall identify the title
of this Agreement, the date of this Agreement and the Parties’ names, and shall be sent to the
designated City Contract Administrator. Certificates of Insurance submitted without referencing
the title of this Agreement will be subject to rejection and may be returned or discarded. If any of
the above-cited policies expire during the life of this Agreement, it is the Licensee’s responsibility
to forward renewal Certificates within ten (10) days after the renewal date containing all the
aforementioned insurance provisions.
15.7.2 The City will accept Licensee’s self-insurance to satisfy this section so long
as the certificates and insurance policies contain the specific provisions below:
15.7.2.1 City of Scottsdale, its agents, representatives, officers,
directors, officials and employees is an Additional Insured under the following policies:
15.7.2.1.1 Commercial General Liability
15.7.2.1.2 Auto Liability
15.7.2.1.3 Excess Liability - Follow Form to underlying
insurance as required.
15.7.2.2 The Licensee’s insurance shall be primary insurance as
respects performance of subject agreement.
15.7.2.3 All policies, except Professional Liability, if applicable, shall
waive rights of recovery (subrogation) against City of Scottsdale, its agents, representatives,
officers, directors, officials and employees for any claims arising out of work or Services performed
by the Licensee under this Agreement.
15.7.2.4 If the Licensee receives notice that any of the required
policies of insurance are materially reduced or cancelled, it will be the Licensee’s responsibility to
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provide prompt notice of same to the City, unless such coverage is immediately replaced with
similar policies.
15.7.3 Required coverage.
15.7.3.1 Commercial general liability. The Licensee shall maintain
“occurrence” form Commercial General Liability insurance with a limit of not less than $1,000,000
for each occurrence, $2,000,000 Products and Completed Operations Annual Aggregate, and a
$2,000,000 General Aggregate Limit. The policy shall cover liability arising from premises,
operations, independent contractors, products-completed operations, personal injury, advertising
injury, bodily injury, property damage, and contractual liability. For any Services that involve
children or at-risk individuals, the commercial general liability must include coverage for sexual
abuse and molestation. If any Excess insurance is utilized to fulfill the requirements of this
paragraph, the Excess insurance shall be “follow form” equal or broader in coverage scope than
underlying insurance.
15.7.3.2 Professional liability. If the Licensee or any of the
Licensee’s employees or subcontractors are licensed professionals, the Licensee shall maintain
Professional Liability insurance covering errors and omissions arising out of the work or Services
performed by the Licensee, or anyone employed by the Licensee, or anyone for whose acts,
mistakes, errors and omissions the Licensee is legally liable, with an unimpaired liability insurance
limit of $1,000,000 each claim and $2,000,000 all claims.
15.7.3.3 Automobile liability. If vehicles are used by the Licensee to
perform the Services, the Licensee shall maintain Business Automobile Liability insurance with a
limit of $1,000,000 each occurrence on the Licensee’s owned, hired, and non-owned vehicles
assigned to or used in the performance of the Services. If vehicles are not used by the Licensee
to perform the Services, this requirement for Automobile Liability may be waived. If any Excess
insurance is utilized to fulfill the requirements of this paragraph, the Excess insurance shall be
“follow form” equal or broader in coverage scope than underlying insurance.
15.7.3.4 Workers’ compensation insurance. If the Licensee has
employees, the Licensee shall maintain Workers’ Compensation insurance to cover obligations
imposed by federal and state statutes having jurisdiction of the Licensee’s employees engaged
in the performance of work or Services under this Agreement and shall also maintain Employers’
Liability Insurance of not less than $100,000 for each accident, $100,000 disease for each
employee and $500,000 disease policy limit.
16.0 Non-assignability. The rights, privileges and responsibilities of the Licensee under
this Agreement are non-assignable.
17.0 Remedies.
17.1 Available remedies. If either Party breaches any provision of this Agreement, the
other Party will have all remedies that are available to it at law or in equity including, without
limitation, the remedy of specific performance.
17.2 No waiver. No provision in this Agreement shall be construed, expressly or by
implication, as waiver by either Party of any existing or future right and/or remedy available by
law in the event of any claim of default or breach of this Agreement. The failure of either Party to
insist upon the strict performance of any term or condition of this Agreement or to exercise or
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delay the exercise of any right or remedy provided in this Agreement, or by law, or either Party’s
acceptance of Services, shall not release the Parties from any responsibilities or obligations
imposed by this Agreement or by law, and shall not be deemed a waiver of any right of the Parties
to insist upon the strict performance of this Agreement.
18.0 Miscellaneous.
18.1 No real property interest. Notwithstanding any provision of this Agreement to the
contrary, and notwithstanding any negotiation, correspondence, course of performance or
dealing, or other statements or acts by or between the Parties, the Licensee’s rights are limited
to the Use Area and the Licensee’s rights in the Use Area are limited to the license rights created
by this Agreement, which creates only a revocable license in the Use Area. The City and the
Licensee do not by this instrument intend to create a lease, easement or other real property
interest. The Licensee shall have no real property interest in the Use Area. The Licensee’s sole
remedy for any breach or threatened breach of this Agreement by the City shall be an action for
damages. The Licensee’s rights hereunder are subject to all covenants, restrictions easements,
agreements, reservations and encumbrances upon, and all other conditions of title to, the Use
Area. Notwithstanding the preceding sentence, the City shall provide to the Licensee during the
term of this Agreement peaceable use and enjoyment of the Use Area in accordance with the
terms of this Agreement. It is the Licensee’s responsibility to resolve any issues related to nearby
property owners that pertain to Licensee’s use of the Use Area. The Licensee’s rights hereunder
are further subject to all present and future building restrictions, regulations, zoning laws,
ordinances, resolutions and orders of all bodies, bureaus, commissions and bodies of any
municipal, county, state or federal authority, now or hereafter having jurisdiction over the Use
Area or the Licensee’s use thereof.
18.2 Entire agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the subject matter hereof and supersedes any prior agreement,
understanding, negotiation or representation regarding the Facility, the Use Area or the Services
to be provided pursuant to this Agreement, unless such other agreement is referenced in section
5.1 above.
18.3 Law governing; venue. This Agreement shall be governed by the laws of the State
of Arizona, and suit pertaining to this Agreement may be brought only in courts in Maricopa
County, Arizona.
18.4 Compliance with law. Licensee shall perform its obligations under this Agreement
in accordance with all federal, state, county and local laws, ordinances, regulations or other rules
or policies as are now in effect or as may hereafter be adopted or amended.
18.5 Additional Fees. In addition to the Use Fee or Adjusted Use Fee, Licensee shall
pay, when due and as the same become due and payable, all sales, transaction privilege and
similar taxes arising solely from the Licensee’s use of the Use Area.
18.6 Arizona Legal Workers Act. Under the provisions of A.R.S. § 41-4401, the
Licensee warrants to the City that the Licensee and all its subcontractors will comply with all
Federal Immigration laws and regulations that relate to their employees and that the Licensee
and all its subcontractors now comply with the E-Verify Program under A.R.S. § 23-214(A).
A breach of this warranty by the Licensee or any of its subcontractors will be considered a material
breach of this Agreement and may subject the Licensee or subcontractor to penalties up to and
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including termination of this Agreement or any subcontract. The Licensee will take appropriate
steps to assure that all subcontractors comply with the requirements of the E-Verify Program. The
Licensee’s failure to assure compliance by all its subcontractors with the E-Verify Program may
be considered a material breach of this Agreement by the City.
The City retains the legal right to inspect the papers of any employee of the Licensee or any
subcontractor who works on this Agreement to ensure that the Licensee or any subcontractor is
complying with the warranty given above.
The City may conduct random verification of the employment records of the Licensee and any of
its subcontractors to ensure compliance with this warranty. The Licensee agrees to indemnify,
defend and hold the City harmless for, from and against all losses and liabilities arising from any
and all violations of these statutes.
18.7 Survival of liability. All warranties and indemnities of the Licensee hereunder shall
survive termination of this Agreement for any reason.
18.8 Attorneys’ fees. In the event either Party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement, or on account of any breach or default
hereof, the prevailing party shall be entitled to receive from the other Party reasonable attorneys’
fees and reasonable costs and expenses, determined by the court, sitting without jury, which shall
be deemed to have accrued on the commencement of such action.
18.9 Non-exclusive contract. This Agreement is entered into with the understanding
and agreement that it is for the sole convenience of the City. The City reserves the right to obtain
like services from another source when necessary.
18.10 Severability. If any term or provision of this Agreement shall be found to be illegal
or unenforceable, then notwithstanding such illegality or unenforceability, this Agreement shall
remain in full force and effect and such term or provision shall be deemed to be deleted. In
accordance with the provisions of A.R.S. § 41-194.01, should the Attorney General give notice to
the City that any provisions of this Agreement violates state law or the Arizona Constitution, or
that it may violate a state statute or the Arizona Constitution, and the Attorney General submits
the offending provision to the Arizona Supreme Court, the offending provision(s) shall be
immediately severed and struck from the Agreement, and the City and Licensee shall, within ten
(10) calendar days after such notice, negotiate in good faith to resolve any issues related to the
severed provision(s). If the Parties are unable to negotiate a resolution to any issues related to
the severed provision(s), the City may terminate this Agreement immediately.
18.11 Exhibits. All Exhibits referred to in this Agreement are hereby incorporated by this
reference.
18.12 Boycott of Israel. Licensee certifies that 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 A.R.S. § 35-
393.
IN WITNESS WHEREOF, the Parties have executed this document by signing their
signatures, as of the day and date first written above.
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IN WITNESS WHEREOF, the Parties have executed this document by signing their signatures,
as of the day and date first written above.
MARICOPA COUNTY,
A political subdivision of the State of Arizona
By: ______________________________________________
Denny Barney, Chairman of the Board of Supervisors
ATTEST:
__________________________________________________
Clerk of the Board Date
APPROVED AS TO FORM:
__________________________________________________
Deputy County Attorney Date
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CITY OF SCOTTSDALE,
an Arizona municipal corporation:
W.J. “Jim” Lane, Mayor
ATTEST:
_____________________________
Carolyn Jagger, City Clerk
APPROVED AS TO FORM:
Bruce Washburn
City Attorney
By: Janis L. Bladine
Senior Assistant City Attorney
REVIEWED BY:
Katherine Callaway William B. Murphy
Risk Management Director Community Services Director
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TABLE OF EXHIBITS
Exhibit Title
A Diagram of Facility with Location(s) of Use Area(s)
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Exhibit “A”
DIAGRAM OF FACILITY WITH LOCATION(S) OF USE AREA(S)