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License No. P-50272 C-75-16-006-3-00 FACILITIES USE/REVOCABLE LICENSE AGREEMENT Between FLOOD CONTROL DISTRICT of MARICOPA COUNTY And MARICOPA COUNTY This Facilities Use/Revocable License Agreement (the “Agreement”) is made and entered into by and between Flood Control District of Maricopa County, a political subdivision of the state of Arizona, whose address is 2801 W. Durango Street, Phoenix, AZ 85009 (“District”), and Maricopa County, a political subdivision of the State of Arizona, whose current address is 301 W. Jefferson, 10th Floor, Phoenix, AZ 85003 (“County”). District and County shall collectively be referred to herein as (the “Parties”) or individually as (a “Party”). R E C I T A L S : WHEREAS, County requires a designated area for use by its Risk Management Department for a recycling program administered by its Environmental Division (“Use”), and WHEREAS, County has selected a portion of District property located at 2801 W. Durango Street, Phoenix, AZ 85009, Assessor Parcel Number 105-17-007, (“Premises”) for the Use and WHEREAS, County Use shall be restricted to the Premises as indicated on Exhibit A and County will use its own equipment, and WHEREAS, District has determined that the Use is not commercial in nature, but rather a benefit to County and District, and WHEREAS, District wants to support the efforts of the County by offering the Premises pursuant to the terms and conditions in this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: A G R E E M E N T: Article 1. Recitals. 1.1 The Recitals, by this reference, are incorporated herein and made a part of this Agreement. 1 Article 2. County Responsibilities. 2.1 County shall utilize the Premises portion as described on Exhibit “A”, attached hereto and incorporated by reference herein. 2.2 County, at its sole cost and expense, shall keep the Premises in a clean, safe and usable condition at all times. 2.3 County, at its sole cost and expense, shall provide all equipment (including, but not limited to, computers and cell phones) and supplies necessary for the Use. 2.4 County shall be solely responsible for the payment of wages or salary of any type, if any, to all employees, officers, directors, staff, contractors and agents of County. Article 3. Fees, Costs and Expenses. 3.1 County agrees to conduct the service at no cost or expense to District. 3.2 County, at its sole cost and expense and without demand, shall reimburse District on a yearly basis two hundred dollars ($200.00) for electric utility service District provides to the Premises. County shall remit the reimbursement to District within thirty (30) days after January 1, in 2016, and yearly thereafter. Article 4. District Responsibilities. 4.1 The District agrees to provide the following to County: a) Access to the Premises for the Use. County shall not have access to the Premises after normal business hours. The District shall provide sufficient parking for County’s agents and staff. Article 5. Term and Termination of Agreement. 5.1 The term of this Agreement shall be for two (2) years and shall commence on January 1, 2016 and shall expire on December 31, 2017 (the “Term”). The Term shall renew automatically for two (2) additional two year terms unless terminated earlier as provided by in the Agreement. The Term may be extended by mutual written agreement of the Parties. The Agreement may be terminated by either Party by giving the other Party at least a 30-day written notice. This Agreement may be terminated pursuant to A.R.S. § 38-511. 5.2 Notice of termination to either Party shall be in writing and transmitted by registered mail, return receipt requested, or hand delivered at the address set forth in the Article 18.1 of this Agreement. In addition, a copy shall be mailed to the Chief Real Estate Officer or sent by overnight courier to the same address. Either Party may change their respective notice address by providing the other Party with prior written notice of the Page 2 of 7 change of address by certified mail, return receipt requested, or hand delivered at the address set forth in Article 20.1. Article 7. Governing Law. 7.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. Article 8. Entire Agreement. 8.1 This Agreement and all Exhibits attached hereto set forth all of the covenants, promises, agreements, conditions and understandings between the Parties hereto and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between the Parties other than as set forth herein, and those agreements which are executed contemporaneously herewith. This Agreement shall be construed as a whole and in accordance with its fair meaning and without regard to any presumption or other rule requiring construction against the Party drafting this Agreement. This Agreement cannot be modified or changed except by a written instrument executed by all of the Parties hereto. Each Party has reviewed this Agreement and has had the opportunity to have it reviewed by legal counsel. Article 9. Severability. 9.1 If any of the provisions of this Agreement are found or deemed by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired or invalidated in any way. Article 10. Non-Waiver. 10.1 Waiver of any breach of any term, condition or covenant herein contained shall not be deemed to be a waiver of any other term, condition or covenant herein, or of a subsequent breach of any term, covenant or condition herein. Either Party’s consent to, or approval of, any subsequent or similar act shall not be deemed to render unnecessary the obtaining of the other Party’s consent to, or approval of, any subsequent or similar act by that Party, to be construed as the basis of an estoppel to enforce the provision or provisions of this Agreement requiring such consent. Article 11. Indemnification. 11.1 Except as otherwise expressed herein, 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 court awarded attorney’s 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, official’s, agents, employees or volunteers. It is recognized that the Parties to this Agreement share the same risk pool for damages. Page 3 of 7 Article 12. Return of Premises. 12.1 It is agreed and understood County will leave the Premises in as near the same condition that it was prior to the commencement of this Agreement at the time it is vacated, normal wear and tear excepted. All tools, equipment and other personal property taken upon, or placed upon the Premises shall be removed. Article 13. Personal Property. 13.1 County and District acknowledge that all equipment of County shall be deemed personal property of County. It is expressly understood and agreed that County retains title to all personal property County brings onto the Premises. District shall not be responsible for any damage to any personal property of County and County and/or any of its employees, agents, officers, directors or members hereby waive any and all rights to bring any claim against District from or relating in any way to damage to the personal property of County. Article 14. Interruption of Service. 14.1 Notwithstanding the preceding, or anything to the contrary contained herein, the Parties acknowledge and agree that under no circumstances shall District be liable for damages, costs or other losses incurred or suffered by County as a result of acts of God, war, national emergency, governmental restriction/request/ direction/delay, civil commotion, strikes, fire or other catastrophe, force majeure, and all other causes or events which are beyond the District’s control. This includes, but is not limited to, any inadequacy, stoppage, surge, interruption or discontinuance of any telephone, electric or other utility service. Article 15. Authority to Execute Agreement/Counterparts. 15.1 Each Party represents to the other that the person executing this Agreement on behalf of the respective entity is authorized to execute this Agreement and the other Party shall have the right to rely on such representations or warranties. 15.2 This Agreement may be executed in one or more facsimile counterparts, each of which shall be an original, and all of which taken together shall constitute a single instrument. Article 16. No Partnership or Joint Venture. 16.1 Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between District and County. Except as expressly provided herein, no term or provision of this Agreement is intended or shall be for the benefit of any person or entity not a party hereto, and no such other person or entity shall have any right or cause of action hereunder. Page 4 of 7 Article 17. Litter and Trash Removal. 17.1 All trash and debris on the Premises that is generated by County must be removed from the Premises by County and disposed of in an appropriate manner. Article 18. Notices. 18.1 All notices which shall or may be given pursuant to this Agreement shall be in writing and transmitted by registered mail, return receipt requested, or hand delivered, addressed as follows and shall be effective when received: District: Flood Control District of Maricopa County Attn: Chief Engineer and General Manager 2801 W. Durango Street Phoenix, AZ 85009 County: Maricopa County Facilities Management Attn: Chief Real Estate Officer 2801 W. Durango Street Phoenix, AZ 85009 Article 19. Headings. 19.1 Section and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Article 20. Time is of the Essence. 20.1 Time is of the essence of this Agreement. If the date for performance of any obligation hereunder or the last day of any time period provided herein shall fall on a Saturday, Sunday or legal holiday of the State of Arizona, then said date for performance or time period shall expire on the first day thereafter which is not a Saturday, Sunday or a legal holiday. Unless otherwise specifically indicated to the contrary, the word “days” as used in this Agreement shall mean and refer to calendar days. Article 21. Counterparts. 21.1 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Faxed and copied signatures are acceptable as original signatures. Page 5 of 7 License No. P-50272 C-75-16-006-3-00 IN WITNESS WHEREOF, this Agreement is made and entered into as of December _______, 2015 DISTRICT: a political subdivision of the COUNTY: a political Subdivision of the State of State of Arizona Arizona ____________________________________ ______________________________________ William D. Wiley, P.E. Steve Chucri, Chairman of the Board Chief Engineer and General Manager ATTEST: _______________________________________ Date _______________________________________ Clerk of the Board Date Approved as to form and within the powers and Authority granted by the Board of Directors APPROVED AS TO FORM: Of the Flood Control District of Maricopa County _____________________________________________ _____________________________________ Betsy Pregulman Date Deputy County Attorney Date Deputy County Attorney Page 6 of 7 License No. P-50272 C-75-16-006-3-00 EXHIBIT “A” Premises Subject Premises 45’ X 35’ Page 7 of 7