TEMP ACCESS LICENSE INDEMNIFICATION HOLD HARMLESS WITH CITY OF GOODYEAR.PDF

TEMPORARY ACCESS LICENSE AND INDEMNIFICATION
AND
HOLD HARMLESS AGREEMENT
This TEMPORARY ACCESS LICENSE AND INDEMNIFICATION AND HOLD
HARMLESS AGREEMENT (hereinafter the "License") is dated, entered into and made effective
on this ____ day of ________, 2015, by and between the CITY OF GOODYEAR, ARIZONA, a
municipal corporation of the State of Arizona (“City”) and MARICOPA COUNTY, a political
subdivision of the State of Arizona ("County") for the purposes herein stated. City and the County
are sometimes individually referred to herein as a “Party” or collectively referred to as the “Parties.”
RECITALS
WHEREAS, County is authorized to enter into this License pursuant to A.R.S. §§11-201, 11-251
and 11-933; and
WHEREAS, the Recitals by this reference shall be incorporated herein and made a part of this
License; and
WHEREAS, the City, in cooperation with the United States Bureau of Reclamation, engaged in a
pilot project using vertical flow wetlands to manage concentrate discharge from the City’s Bullard
Water Campus Reverse Osmosis Facility (the “Bullard Water Campus”); and,
WHEREAS, the results of the pilot project suggested that vertical flow wetlands could successfully
be used to manage concentrate discharge from the Bullard Water Campus, and the City, in
cooperation with the United States Bureau of Reclamation, conducted a study to identify locations
that would be suitable for the development of wetlands for disposal of large quantities of the
concentrate discharge generated by the Bullard Water Campus; and
WHEREAS, the property within Estrella Mountain Regional Park (the “Estrella Park”) generally
depicted in Exhibit A, attached hereto and incorporated herein by this reference, has been generally
identified as the potential sites for wetlands capable of treating and disposing of large quantities of
concentrate discharge generated by the Bullard Water Campus (the “Wetlands Locations”); and,
WHEREAS, the County owns the portion of Estrella Park depicted in Exhibit A, including the
Wetlands Location; and
WHEREAS, a portion of the Wetlands Location is subject to a Use Management Agreement
between Maricopa County and Tres Rios Golf, LLC (“TRG”) (“Concessionaire”) pursuant to which
the Concessionaire operates the Tres Rio Golf Course; and
WHEREAS, the Concessionaire is willing to execute the Consent to Temporary Access License
and Indemnification and Hold Harmless Agreement of even date herewithin License; and
WHEREAS, the County believes the visual landscape improvements and reasonable monetary
lease revenues resulting from the City’s potential future development of wetlands within the
Wetland Locations as benefits to Estrella Park; and
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WHEREAS, City and County believe the potential future development of wetlands within all or a
portion of the Wetland Locations will provide recreational and educational opportunities consistent
with the vision of the El Rio Master Plan completed by Maricopa County Flood Control District;
and;
WHEREAS, subject to requisite approvals, County and Concessionaire intend to include wetlands
within all or part of the Wetlands Locations as part of the new master plan park concept for Estrella
Mountain Park; and
WHEREAS, in order to determine the viability of the potential sites for development as wetlands
and to subsequently obtain the benefits attendant to the development of wetlands within the Estrella
Mountain Park, County is willing to grant this temporary non-exclusive License over the Wetlands
Locations for the limited purposes of activities (hereinafter “Purposes” as defined below) necessary
to complete the scope of work (“Scope of Work”) more specifically described in Exhibit B, attached
hereto and incorporated herein by this reference; and
WHEREAS, this License will require administrative or operational action from time to time to
carry out the spirit and intent of this License, the County desires to delegate to the Director of
Maricopa County Parks and Recreation Department, or his or her designee, the authority and
responsibility for proper administration of this License, whether or not specific authority is granted
in any provision of this License; and
WHEREAS, in consideration for the granting of this License, the City will be entering into a
contract with a consultant for an evaluation of the viability of the potential sites in Estrella Park as
wetlands capable of treating and disposing of large quantities of concentrate discharge generated by
the Bullard Water Campus.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, County and City agree
as follows:
1. Grant of License. County hereby grants to City a License through, over, upon, and
across the Wetland Location for the benefit of City, its contractors, subcontractors, employees,
agents and representatives, solely for the Purposes set forth in this License.
2. Purposes. The Purpose of the License is to allow City to utilize the Wetlands
Locations for the limited purposes of non-ground disturbing activities more specifically described in
the Scope of Work attached hereto as Exhibit B.
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3. Term and Termination.
3.0 Term
The term of this License is from the date of approval of the Maricopa County
Board of Directors through October 15, 2017.
3.1 Termination
The License shall automatically terminate at 12:01 a.m. on October 15, 2017
without the need for any further documentation; however, if requested by
County, City shall prepare and record a termination of License within five (5)
business days of such request.
3.2 Termination due to Conflict of Interest.
The Parties acknowledge that this License is subject to cancellation pursuant
to the provisions of A.R.S. §38-511.
3.3 Termination for Cause.
This License may be terminated in whole or in part, at any time, by the
County for cause, upon thirty (30) days prior notice to the City without any
penalty or liability to the County. The City and its employees, agents,
officers, directors, members, successors, or assigns hereby waive any and all
rights to bring any claim against the County, or its employees, agents,
officers, directors, members, successors or assigns from or relating in any
way to the County’s termination of this License pursuant to this Section 3.3.
Representative reasons for “cause” include, but are not limited to:
3.3.1 For any reason the real property reverts back to the agency from
which the respective patent was received.
3.3.2 Unsatisfactory performance on the part of the City or failure to
comply with the provisions of this License. The Director of the
Parks and Recreation Department or his or her designee is hereby
given the authority to exercise the County’s termination rights in the
event any payment required by this License is late by more than
sixty (60) days, or if any report required by this License is
delinquent by more than sixty (60) days.
3.5 Termination Upon Conveyance.
If this License has not already expired or been previously terminated by the
Parties, upon the transfer or conveyance of ownership of Wetlands Locations,
this License shall immediately terminate.
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3.6 Post Termination.
All provisions in this License, the completion of which is to occur after the
termination of this License, shall survive the termination of this License.
4. Use of License. The rights and privileges herein granted are for the use and benefit
of City, together with its contractors, subcontractors, employees, agents and representatives, and
such rights and privileges including necessary to complete the work described in the attached Scope
of Work, including the right of ingress and egress as may be reasonably necessary or desirable to
permit the foregoing. City shall be responsible for complying with all federal, state and local
regulations, rules, laws, statutes and ordinances. City shall, prior to the expiration of this License,
restore the Wetlands Locations to substantially the same condition as the Wetland Locations were in
as of the date of this License.
5. Indemnification and Liens. To the fullest extent permitted by law, City shall
indemnify, defend and hold County the Concessionaire, its elected officials, officers, employees,
agents, successors and assigns harmless for, from, and against any and all claims, liabilities,
expenses, costs, losses, or damages of any kind and any proceedings, fines, penalties, judgments or
other regulatory enforcement actions or proceedings taken (including without limitation any
attorney’s fees and costs) arising from or related to the negligence by the City or its contractors,
subcontractors, employees, agents, representatives, guests and invitees in the exercise of the rights
granted hereunder. The City shall keep the Wetlands Locations free and clear of all mechanics or
materialmen’s liens related to work performed on the Wetlands Locations pursuant to the rights
granted under this License. This provision shall survive the termination of this License.
6. Insurance. City shall, during the entire term of this License, at its sole cost and
expense, obtain, maintain and keep in full force and effect commercial general liability insurance
with a combined single limit for bodily injury and property damage of at least $2,000,000.00 for
each claim, with an aggregate limit of no less than $4,000,000.00, insuring against liability of the
City and its authorized contractors and representatives arising out of and in connection with the
City’s use of the Wetlands Locations. Such insurance policy shall name the County and
Concessionaire as additional insureds thereunder and providing that notice shall be given to County
not less than thirty (30) days prior to cancellation of such policy. City shall provide County and
Concessionaire with certificates evidencing such insurance policies prior to entry onto the Wetland
Locations for the purposes herein stated. Further, City shall not assign or delegate any of its rights
hereunder or permit any contractor or subcontractor to enter upon the Wetlands Locations for any
purpose unless such person or entity is duly licensed and insured to the extent hereinabove set forth,
nor shall City allow any material supplier to enter upon the Wetlands Locations unless such material
supplier is duly insured to the extent hereinabove set forth and accompanied by a representative of a
contractor or subcontractor that qualifies under this provision to enter upon the site. City shall
maintain evidence on file and shall provide such evidence to County and Concessionaire upon
request.
7. Venue and Attorney Fees. This License shall be deemed to be made under, shall be
construed in accordance with, and shall be governed by, the internal, substantive laws of the State of
Arizona, without reference to any choice-of-law or conflicts-of-law principles or provisions. Suit to
enforce any provision of this License or to obtain any remedy with respect thereto shall be brought
in a court of competent jurisdiction located within Maricopa County, Arizona; and each Party hereto
expressly and irrevocably consents to the jurisdiction of said courts. If a proceeding is commenced
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or an attorney is retained to enforce the terms of this License regardless of whether a lawsuit is
actually filed, the prevailing Party shall be entitled to recover, in addition to any other remedy,
reimbursement for reasonable attorneys' fees, court costs, costs of investigation, cost of appeal and
other related expenses incurred in connection therewith. This provision shall survive the termination
of this License.
8. Entire Agreement. This License, including the exhibits referenced herein, is the
entire agreement of the Parties and supersedes any and all prior oral or written agreements or
understandings between them pertaining to the subject matter of this License. The Parties have
made no representations, warranties or inducements, express or implied, other than as set forth in
this License. This provision shall survive the termination of this License.
9. No Waiver; Other Matters. No waiver of any term of this License shall be deemed
to be a continuing waiver of that term or a waiver of any other term of this License. The provisions
of this License are not intended to and do not constitute a dedication for public use of the Wetlands
Locations. County shall have the right to terminate this License at any time upon providing written
notice to the City in the event of a breach of or default by the City under this License if such breach
or default has not been cured within ten (10) business days after the City has been notified in
writing of the breach if such default can reasonably be cured within such time frame. If the breach
is of a nature that cannot be cured within ten (10) business days, the City shall be given sufficient
time, at the County’s sole discretion, within which such breach can be cured before this License can
be terminated for a breach or default.
10. Notices. All notices to be given by either party to the other shall be in writing
and shall be served by personal delivery, a nationally recognized overnight courier, or by depositing
such notice in the United States mail, certified, return receipt requested, postage prepaid, addressed
and delivered to the party to receive the notice at the addresses set forth herein or at such other
address as may be indicated by one party to the other party by written notice. Notices sent by
personal delivery or by a nationally recognized overnight courier as set forth above shall be deemed
to have been delivered on the date of delivery or on that date that delivery is refused. Notices sent
by certified mail shall be deemed to have been delivered upon the third business day following the
day on which such notice is deposited for delivery in any United States Postal Service mail box or
branch office established by the United States Postal Service, as evidenced by the postmark. If
either party refuses delivery or fails to receive any notice because such party failed to advise the
other party of any change of address, such party shall not be relieved of any obligation under this
License.
Notices to County: Maricopa County Parks and Recreation Department
41835 N. Castle Hot Springs Road, Unit Operations Center
Morristown, AZ 85342
Attn: RJ Cardin, Director
Notices to City: City of Goodyear
190 North Litchfield Road
Goodyear, Arizona 85338
Attn: City Attorney
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11. Third Parties. Except as otherwise expressly provided in this License, no person or
entity that is not a Party to this License shall have any right to performance nor any rights or
benefits under this License, nor shall any person or entity that is not a party to this License have any
right to enforce this License.
12. Waiver, Modification, or Amendment. This License shall not be altered, modified or
amended, except by written agreement signed by the Parties.
13. Counterparts. This License may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
14. Authority. Each Party hereby warrants that the persons executing this License on
behalf of such Party has the authority to do so and that all persons necessary to bind the Parties to
this License have joined in this document.
IN WITNESS WHEREOF, the Parties have executed this TEMPORARY ACCESS LICENSE
AND INDEMNIFICATION AND HOLD HARMLESS AGREEMENT as of the dates set forth
below.
MARICOPA COUNTY CITY OF GOODYEAR,
Board of Supervisors a municipal corporation
Approved and Accepted by: Approved and Accepted by:
_________________________________ _____________________________________
Steve Churci Brian Dalke
Chairman City Manager
Attest by: Attest by:
_________________________________ _____________________________________
Clerk of Board City Clerk
Approved as to Form: Approved as to Form:
__________________________________ _____________________________________
Attorney for Maricopa County Date Attorney for City of Goodyear Date
Exhibits on Following Pages Exhibits on Following Pages
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EXHIBIT A
WETLANDS LOCATIONS
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EXHIBIT B
SCOPE OF WORK
During the development of the Design Concept Report the design team will require access to the
Estrella Mountain Regional Park and Tres Rios Golf Course facility for the purposes of conducting
site investigation and data collection. Site visits will be completed during regular hours of
operation. All activities will be noninvasive.
Specific tasks that may be executed on County Lands identified in Exhibit A:
a. Self-guided walking tours of the Estrella Mountain Regional Park
b. Guided tours of Estrella Mountain Regional Park and Tres Rios Golf Course
c. Survey and measurements of Estrella Mountain Regional Park and Tres Rios Golf
Course features
d. Photographs of Estrella Mountain Regional Park and Tres Rios Golf Course
e. The design team must notify the park supervisor of dates to tour site to ensure there
are no programs or events in the area.
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