LICENSE RE P-50274 USE AGREEMENT HIGLEY USD.DOCX

P-50274
C-85-17-
LICENSE AGREEMENT
FOR USE OF REAL PROPERTY
at 3391 East Vest Avenue, Gilbert, Arizona
This License Agreement for Use of Real Property (“Agreement”), is made and entered into
this __day of ___, 2015, (the “Effective Date”) by and between the Higley Unified School
District No. 60 (the “District”), a political subdivision of the State of Arizona, and Maricopa
County, a political subdivision of the State of Arizona (the “County”). The District and the
County may be referred to individually as a “Party” and jointly as “Parties”.
RECITALS
A. District owns certain real property at 3391 East Vest Avenue, Gilbert,
Arizona (“the Property”).
B. County desires to use a portion of the Property, approximately 10 feet x 12
feet, to install an air monitoring device for the purpose of measuring CO, Ozone and
particulates, (the “Monitoring Site”), as depicted on Exhibit A attached hereto and
incorporated herein.
C. County will fence the Monitoring Site.
D. District is willing to grant County a license to use the Monitoring Site and to
allow access over the Property to the Monitoring Site.
AGREEMENT
In consideration of the foregoing recitals, which are incorporated herein, and the
terms of this Agreement, the Parties agree as follows:
1.0 Monitoring Site.
1.1 The District hereby grants County a license to use the Monitoring Site for the
purpose of monitoring and gathering data related to air quality and for no other
purpose, without the prior written approval of the Superintendent of District or his
designee.
1.2 The County acknowledges that the Property and Monitoring Site are being
provided “AS IS,” and County is relying solely on its own inspection and
investigation of the Property for suitability of the Monitoring Site for its purposes.
2.0 Use of Monitoring Site.
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The County agrees to use the Monitoring Site in such a manner that will not
interfere with District’s use of the Property, will not create a nuisance or hazard to
the public health or safety in violation of any law, and is in compliance with all
applicable laws.
3.0 Term and Termination.
3.1 Term. The term of this Agreement shall be for a period of five (5) years (the
“Term”), commencing on the Effective Date, unless otherwise canceled or
terminated as provided herein. This Agreement will automatically renew for up to
two (2) successive five (5) year terms unless either Party gives written notice to the
other Party of its intent not to renew the Agreement, such notice to be given no less
than ninety (90) days prior to the end of the Term or then-current renewal.
3.2 Termination for Convenience. Either Party may terminate this Agreement,
for any reason or for no reason, upon not less than ninety (90) days’ notice to the
other Party. The Parties shall incur no expense or liability to the other for
terminating the Agreement.
3.3 Restoration upon Termination. Upon notice by either Party of termination,
the County will remove its equipment and restore the Monitoring Site to its original
condition, normal wear and tear excepted, prior to the end of the Term.
4.0 Fees and Expenses.
4.1 License Fee. County agrees to pay to the District an annual license fee of
Twenty Four Hundred Dollars ($2,400.00), payments due on the Effective Date and
each anniversary thereof. In the event District terminates this License Agreement
during any term hereof, the license fee heretofore made by County shall be prorated
based on the number of days remaining in the final year of occupancy. District shall
refund the prorated amount to County within thirty (30) days after termination.
4.2 Expenses. County is responsible for obtaining and paying for all utilities
necessary for its use of the Monitor Site.
5.0 Insurance.
County shall have the option to self-insure the minimum limits set forth in this
Section in lieu of providing for all or any specified insurance coverage by policy.
District shall be named as an additional insured, and County shall provide District
with a certificate of insurance showing District as an additional insured.
5.1 General Liability. As of the effective date, County shall maintain in full force
and effect during the Term of this Agreement coverage of $3,000,000 for death,
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bodily injury, property damage or loss sustained in any one occurrence. If
environmental pollution or environmental hazards are excluded from the General
Liability policy, a separate Pollution Insurance Policy shall be required with a
minimum coverage of $1,000,000.
5.2 Worker’s Compensation. County shall maintain worker’s compensation
insurance to cover obligations imposed by federal and state statute.
6.0 Indemnification. To the extent permitted by law, 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 attorneys’ fees) (hereinafter collectively referred to as “claims”) arising
out of bodily injury of any person (including death) or property damage, but only to
the extent that such claims are caused by the willful misconduct or gross negligence
of the indemnitor, its officers, officials, agents employees, or volunteers.
7.0 Environmental Indemnification.
7.1 No Hazardous Materials. County shall not bring onto the Monitoring Site any
chemical or other substance that is considered hazardous, or through its use would
create a hazardous waste, under the Arizona Hazardous Waste Management Act,
A.R.S. § 49-901, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901,
et seq., the Toxic Substances Control Act, 15 U.S.C. 2601, et seq., or any other federal,
state, county, or local law pertaining to hazardous waste or toxic Substances
(collectively “Hazardous Substances”). In addition to and without limitation of any
other indemnities or obligations in this Agreement, County shall, indemnify, defend
and hold District harmless against any loss or liability incurred by reason of any
Hazardous Substance on or affecting the Monitoring Site to the extent attributable to
or caused by County, its employees, agents, contractors or anyone acting of County’s
behalf.
7.2 Remediation and Restoration. If due to the actions or inactions of County, its
employees, agents, contractors or anyone acting of County’s behalf, the presence of
any Hazardous Substance in or on the Monitoring Site results in any contamination
of the Monitoring Site or Property, County shall promptly take all actions at its sole
expense as are necessary to return the Monitoring Site and/or the Property to the
condition existing prior to the introduction of any such Hazardous Material and the
contractors to be used by County for such work must be approved by District, which
approval shall not be unreasonably withheld so long as such actions would not
potentially have any material adverse long-term or short-term effect on the
Monitoring Site and the Property; provided however, District shall also have the
right, by written notice to County, to directly undertake any such mitigation efforts
with regard to Hazardous Materials in or about the Monitoring Site or Property due
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to County’s breach of its obligations pursuant to this subsection 13.1, and to charge
County, as an additional component of Rent, for the costs thereof.
8.0 Entry by District.
8.1 Purpose of Entry. District shall have the right to enter the Monitoring Site in
case of an emergency at any time, with or without prior notice to County, and at any
time, with no less than 24 hours’ notice to County, to maintain or to make any repair
or restoration to the Monitoring Site or the Property that District has the right or
obligation to perform, and to do any other act or thing necessary for the safety or
preservation of the Monitoring Site or the Property. District shall have the right at
all times to have and retain such key or keys, electronic or otherwise, with which to
unlock the gate to the Monitoring Site. District also reserves the right to close access
to the Monitoring Site or Property in case of emergency whereby such failure to
close the facility would result in loss of life, personal injury, or damage to District
property, real or personal.
8.2 Entry Not Unlawful. Any entry to the Property obtained by District in
accordance with the foregoing shall not be construed or deemed to be a forcible or
unlawful entry into, or a detainer of, the Monitoring Site or an eviction of County
from the Monitoring Site or the Property. Except to the extent caused by the gross
negligence or willful misconduct of District or its agents, contractors, or employees,
County hereby waives any claim for damages for any injury or inconvenience to or
interference with County’s quiet enjoyment of the Monitoring Site by reason of
District’s exercise of its right of entry in accordance with this Section, and County
shall not be entitled to an abatement or reduction of Rent in connection therewith.
9.0 No Assignment. County may not assign this Agreement, in whole or in part,
without District’s prior written approval, which may be granted or denied in
District’s sole discretion. Any transfer without District’s prior written approval shall
be void.
10.0 Signage. County shall provide a sign on the fence around the Monitoring Site
to provide an emergency contact telephone number.
11.0 General Provisions.
11.1 Partial Invalidity. If any term covenant, condition or provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall remain in full force and effect.
11.2 Notices. All notices given, or to be given, by either Party to the other, shall be
given in writing, shall be addressed to the Parties at the addresses set both below, or
such other address as the Parties may hereafter designate. Notices shall be deemed
properly served when sent by first class mail, postage prepaid, or hand delivered to:
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To the District: Higley Unified School District
Attn: Superintendent
2935 South Recker Road
Gilbert, AZ 85295
To the County: Maricopa County Facilities Management
Attn: Chief Real Estate Officer
2801 W. Durango Street
Phoenix, AZ 85009
11.3 A.R.S. § 38-511 Notice. This Agreement is subject to cancellation pursuant to
the terms of A.R.S. § 38-511.
11.4 Amendment. Any amendment to this Agreement shall be in writing and
executed on behalf of both Parties.
11.5 Authority. The person executing this Agreement on behalf of each Party
warrants that he is duly authorized to execute and deliver this Agreement on behalf
of the Party and that this Agreement is binding upon each Party in accordance with
the terms and conditions hereof.
11.6 Governing Law, Venue and Jurisdiction. This Agreement shall be governed by
the laws of Arizona. Any action related to a dispute arising out of this Agreement
shall be brought in the Superior Court in Maricopa County, State of Arizona.
11.7 Construction. The terms and provisions of this Agreement shall be
interpreted and construed in accordance with their usual and customary meanings.
The Parties have both had the opportunity to have the Agreement reviewed by legal
counsel, and the Agreement shall be construed neither for nor against either Party
by reason of drafting.
11.8 Surviving Provisions. All warranties, representations and duties to
indemnify, defend and hold harmless; to restore the Monitoring Site; to remediate
contamination by Hazardous Materials shall survive the termination or expiration of
this Agreement.
11.9 Incorporation of Recitals. The Recitals, by this reference, are incorporated
herein and made a part of this Agreement.
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P-50274
C-85-17-
HIGLEY UNIFIED SCHOOL DISTRICT
_________________________________ ____________________________
Michael Thomason, Ed.D. , Superintendent DATE
Superintendent
APPROVED AS TO FORM:
______________
LEGAL COUNSEL DATE
MARICOPA COUNTY
______________
Clint Hickman, Chairman of the Board DATE
ATTEST:
_______________
Clerk of the Board DATE
APPROVED AS TO FORM:
_______________
Deputy County Attorney DATE
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P-50274
C-85-17-
EXHIBIT A
Monitor Site
A 10’ X 12’ area in the southwest corner of the parking lot at the northwest corner of
Assessor Parcel No. 304-39-010D.
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