P-50220 FH ACCESS AGREEMENT 12-27-2013, FOUNTAIN HILLS.DOC

Agreement No. P-50220 Fountain Hills Project Info
C-86-14-xx-x-00
LICENSE AGREEMENT
FOR USE OF REAL PROPERTY
P-50220 FH-xxxxx
This License Agreement for Use of Real Property (“Agreement”) is executed to be
effective the _____ day of _______________, 2013 (“Effective Date”), between Town of
Fountain Hills (“Licensor”) and Maricopa County, a political subdivision of the State of Arizona
("Licensee"). The Licensor and Licensee are sometimes referred to herein individually as a
“Party” and collectively as the “Parties.”
WHEREAS, Licensor is the owner of certain real property located at 16426 E. Palisades
Blvd., Fountain Hills, AZ 85268, which is legally described on attached Exhibit A (“ Property”);
and
WHEREAS, Licensee desires to install, operate and maintain an air quality monitor site
on a portion of Licensor’s Property, as described in this Agreement and depicted on attached
Exhibit B (“Monitor Site”); and
WHEREAS, Licensor is willing to grant to Licensee a license to use the Monitor Site for
the uses described above.
THEREFORE, in consideration of the following mutual covenants and conditions, it is
hereby agreed as follows:
1. LICENSED AREA/MONITOR SITE.
The Monitor Site is located at 16426 Palisades Blvd., Fountain Hills, AZ 85268, as legally
described on attached Exhibit A and graphically depicted on attached Exhibit B.
2. REPRESENTATIONS AND WARRANTIES.
A. Licensor represents and warrants to Licensee that: (i) Licensor , and its authorized
signatory, has full right, power and authority to execute this Agreement; and (ii)
Licensor ’s execution and performance of this Agreement will not violate any laws,
ordinances, covenants, mortgages, licenses or other agreements binding on
Licensor.
B. Licensee represents and warrants to Licensor that: (i) Licensee, and its authorized
signatory, has full right, power and authority to execute this Agreement; and (ii)
Licensee’s execution and performance of this Agreement will not violate any laws,
ordinances, covenants, mortgages, licenses or other agreements binding on
Licensee.
C. Licensee has studied and inspected the Monitor Site and accepts the same “AS IS”
without any express or implied warranties of any kind, other than those warranties
contained in subsection (A) above, including any warranties or representations by
Licensor as to title or its condition or fitness for any use. Licensee has inspected
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the Monitor Site and obtained information and professional advice as Licensee has
determined to be necessary related to this Agreement.
3. GRANT OF LICENSE; TERM.
A. Nothing in this Agreement shall be construed as granting Licensee the authority to
use any property that is owned by any person or entity other than Licensor.
B. This Agreement shall be effective on the Effective Date as defined above. The term
of this Agreement shall be for a period from the Effective Date through December
31, 2017. Beginning on January 1, 2018, this Agreement shall renew for two (2)
additional terms of three (3) years each unless either Party gives at least sixty (60)
days prior written notice of its intent not to renew for the next term. This
Agreement is not intended to represent permission granted in perpetuity. Either
party may terminate this Agreement without cause by giving ninety (90) days
advance written notice to the other of intent to terminate.
C. If Licensee continues to occupy the Monitor Site after the expiration or termination
of this Agreement, holding over will not be considered to operate as a renewal or
extension of this Agreement.
D. Notwithstanding any provision in this Agreement to the contrary or any negotiation,
correspondence, course of performance or dealing, or other statements or acts by or
between the parties, Licensee’s rights in the Monitor Site are limited to the rights
created by this Agreement, which create only a license in the Monitor Site, which is
revocable only as set forth expressly herein. Licensor and Licensee do not by this
instrument intend to create a lease, easement or other real property interest.
Licensee has no real property interest in the Monitor Site. Licensee’s sole remedy
for any breach or threatened breach of this Agreement by Licensor will be an action
for damages. Licensee’s rights are subject to all covenants, restrictions, easements,
agreements, reservations and encumbrances upon, and all other conditions of title to
the Monitor Site. Licensee’s rights under this Agreement are further subject to all
present and future building restrictions, regulations, zoning laws, ordinances,
resolutions and orders of any local, state or federal agency, now or later having
jurisdiction over the Monitor Site or Licensor’s use of the Monitor Site.
E. This license Agreement is specific to Licensee, and may not be transferred or
assigned in any manner, without the prior written approval of Licensor.
4. FEES.
Upon execution of the Agreement and upon Licensor’s proper invoicing of Licensee, Licensee
shall pay Licensor a first year license fee of $300.00 (Three Hundred Dollars) for entering into
the Agreement. Thereafter, at the anniversary date of the Agreement and upon Licensor’s proper
invoicing of Licensee, Licensee shall pay an annual License fee of $300.00 (Three Hundred
Dollars) until such time as Agreement is terminated pursuant to the terms of this Agreement.
5. UTILITIES.
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Licensee is responsible for obtaining and paying for all utilities necessary for its use of the
Monitor Site.
6. USE RESTRICTIONS.
A. Licensee shall not remove, damage or alter in any way any existing improvements
or personal property of Licensor within the Monitor Site without Licensor’s prior
written approval, which shall not be unreasonably withheld. Licensee shall repair
any damage or alteration to Licensor’s property to the same condition that existed
before the damage or alteration, reasonable wear and tear excepted.
B. Licensee shall use the Monitor Site solely for the purpose of installing and
operating an air quality monitoring station, generally consisting of the following
elements: Ozone, Wind Speed & Direction, Temperature, Relative Humidity,
Pressure
C. Licensee shall have a non-exclusive right for ingress and egress, seven (7) days a
week, twenty-four (24) hours a day, for the authorized use, which right shall be
exercised so as to not unreasonably interfere with any Licensor operations.
D. Licensee shall keep the Monitor Site maintained, orderly and clean at all times.
E. Subject to the terms set forth herein, Licensee acknowledges that Licensee’s use of
the Monitor Site shall be subject and subordinate to, and shall not adversely affect,
Licensor’s use of the Monitor Site.
7. HAZARDOUS WASTE.
Licensee shall not produce, dispose, transport, treat, use or store any hazardous waste or toxic
substance upon or about the Monitor Site in violation of the Arizona Hazardous Waste
Management Act, ARIZONA REVISED STATUTES (“ARS”) § 49-901 et seq., the Resource
Conservation and Recovery Act, 42 UNITED STATES CODE (“USC”) 6901 et seq., the Toxic
Substances Control Act, 15 USC 2601 et seq., or any other federal, state or local law pertaining
to hazardous waste or toxic substances. Licensee shall not use the Monitor Site in a manner
inconsistent with any regulations, permits or approvals issued by any state agency. Licensee
shall defend, indemnify and hold Licensor harmless against any loss or liability incurred by
reason of any hazardous waste or toxic substance on or affecting the Monitor Site to the extent
attributable to or caused by Licensee, and shall immediately notify Licensor of any hazardous
waste or toxic substance at any time discovered or existing upon the Monitor Site. Licensee shall
promptly and without a request by Licensor provide Licensor’s Environmental Program Manager
with copies of all written communications between Licensee and any governmental agency
concerning environmental inquiries, reports or problems relating to hazardous waste or toxic
substances on the Monitor Site.
8. CONSTRUCTION AND MAINTENANCE.
A. Licensee has, at its own cost, all responsibilities for the installation of all
improvements proposed by Licensee to the Monitor Site as depicted on Exhibit B,
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including costs associated with construction, operation and maintenance, unless
damage thereto is caused by Licensor or its agents or contractors;
B. All improvements made by Licensee to the Monitor Site pursuant to the terms of
this Agreement are subject to and must be in compliance with all applicable codes,
ordinances and laws, including the Americans with Disabilities Act, and
constructed in conformance with the Licensor’s approved design standards.
C. Licensee shall not permit any liens to be placed or remain on the Monitor Site by
virtue of any work performed under this Agreement.
9. 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 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, officials, agents employees, or volunteers.
10. INSURANCE.
Licensor acknowledges that Licensee is self-insured. Licensee shall provide Licensor with
a certificate of self-insurance.
11. DAMAGE OR DESTRUCTION.
Licensor has no obligation to reimburse Licensee for the loss of or damage to fixtures, equipment
or other personal property, except for loss or damage as is caused by the negligence or fault of
Licensor or its officers, employees or agents. Licensee may insure all fixtures, equipment or
other personal property for its own protection if it so desires.
12. SURRENDER OF POSSESSION.
Upon the expiration or termination of this Agreement, Licensee’s right to occupy the Monitor
Site and exercise the privileges and rights granted under this Agreement shall cease, and it shall
surrender and leave the Monitor Site in good condition, normal wear and tear and casualty not
caused by Licensee excepted.
13. NOTICE.
A. Except as otherwise provided, all notices required or permitted to be given under
this Agreement may be personally delivered or mailed by certified mail, return
receipt requested, postage prepaid, to the following addresses:
To Licensor: Town of Fountain Hills
16705 East Avenud of the Fountains
Fountain Hills, Arizona 85268
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With a copy to: Gust Rosenfeld, P.L.C
Attn: Andrew J. McGuire, Esq.
One East Washington Street, Suite 1600
Phoenix, Arizona 85004-2553
To Licensee: Maricopa County Finance Department
Attention: Real Estate Manager
301 W. Jefferson Street, Suite 960
Phoenix, AZ 85003
B. Any notice given by certified mail shall be deemed to be received on the third
business day after the date of mailing. Either party may designate in writing a
different address for notice purposes pursuant to this Section.
14. SEVERABILITY.
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the
remaining terms shall remain effective, provided that elimination of the invalid provision does
not materially prejudice either party with regard to its respective rights and obligations; in the
event of material prejudice, then the adversely affected party may terminate this Agreement.
15. TAXES AND LICENSES.
A. Licensee shall pay any leasehold tax, possessory-interest tax, sales tax, personal
property tax, transaction privilege tax or other exaction assessed or assessable as a
result of its occupancy of the Monitor Site under authority of this Agreement,
including any tax assessable on Licensor. If laws or judicial decisions result in the
imposition of a real property tax on the interest of Licensor as a result of Licensee’s
occupancy of the Monitor Site, the tax shall also be paid by Licensee on a
proportional basis for the period this Agreement is in effect.
B. Licensee shall, at its own cost, obtain and maintain in full force and effect during
the term of this Agreement any and all licenses and permits required for the
activities authorized by this Agreement.
16. ALTERNATIVE DISPUTE RESOLUTION; LITIGATION.
This Agreement shall be governed by the laws of the State of Arizona. If a dispute arises
concerning any of the terms of this Agreement, the parties will meet and attempt in good faith to
negotiate a resolution of the dispute. If a resolution is not reached, the parties will consider
entering into an alternative dispute resolution process, including mediation and/or arbitration.
This Section shall not foreclose the right of either party to file a court action. In the event of any
litigation or arbitration between Licensor and Licensee arising under this Agreement, the
successful party shall be entitled to recover its reasonable attorney’s fees, expert witness fees and
other costs incurred in connection with the litigation or arbitration.
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17. RULES AND REGULATIONS.
Licensee shall at all times comply with all federal, state and local laws, ordinances, rules and
regulations which are applicable to its operations and the Monitor Site, including all laws,
ordinances, rules and regulations adopted after the Effective Date. Licensee shall display to
Licensor, upon request, any permits, licenses or other evidence of compliance with the law.
18. RIGHT OF ENTRY RESERVED.
A. Licensor may, at any time, enter upon the Monitor Site for any lawful purpose, so
long as the action does not unreasonably interfere with Licensee’s use or occupancy
of the Monitor Site.
B. Without limiting the generality of the foregoing, Licensor and any furnisher of
utilities and other services shall have the right, at their own cost, to maintain
existing and future utility, mechanical, electrical and other systems and to enter
upon the Monitor Site at all times to make repairs, replacements or alterations
thereto that may, in the opinion of Licensor , be deemed necessary or advisable and
from time to time to construct or install over, in or under the Monitor Site the
systems or parts thereof and, in connection with maintenance, use the Monitor Site
for access to other parts in and around the Monitor Site; provided that in the
exercise of the right of access, repair, alteration or new construction, Licensor shall
not unreasonably interfere with the use and occupancy of the Monitor Site by
Licensee.
C. Exercise of any of the foregoing rights by Licensor or others pursuant to Licensor’s
rights shall not constitute an eviction of Licensee, nor be made the grounds for any
abatement of rent or any claim for damages.
19. OWNERSHIP OF EQUIPMENT.
It is expressly understood and agreed that Licensee retains title to all equipment installed by it
and may modify, replace or remove such equipment when necessary. Licensee and Licensor
acknowledge that all equipment and improvements of Licensee shall be deemed personal
property of Licensee.
20. CONFLICTS OF INTEREST.
This Agreement may be cancelled for conflicts of interest as described under A.R.S. § 38-511.
21. E-VERIFY.
To the extent applpicable under A.R.S. § 41-4401, each Party and its respective subcontractors
warrant compliance with all federal immigration laws and regulations that relate to its employees
and compliance with the E-verify requirements under A.R.S. § 23-214(A). Each Party has the
right to inspect the papers of the other Party of its subcontractors participating in this Agreement
to ensure compliance with this paragraph. A Party’s or its subcontractors’ breach of the above-
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mentioned warranty shall be deemed a material breach of the Agreement and may result in the
termination of the Agreement by a non-breaching Party under the terms of this Agreement.
22. AGREEMENT AS LICENSE.
The Parties intend and mutually agree that this Agreement shall be construed as a mere license
by Licensor to Licensee to operate within the City Property. This Agreement shall not be
construed as a lease, sublease, rental agreement or easement. It is understood and mutually
agreed that Licensee has no interest whatsoever in the Property.
23. VENUE; GOVERNING LAW.
The proper venue for any proceeding at law or in equity or under the provisions for arbitration
shall be Maricopa County, Arizona and City and the Licensee hereby waive any right to object to
venue. This Agreement shall be construed in accordance with and be governed by the laws of
the State of Arizona.
24. MISCELLANEOUS.
This Agreement constitutes the entire agreement between the parties concerning the subject
matter stated and supersedes all prior negotiations, understandings and agreements between the
parties concerning those matters. This Agreement shall be interpreted, applied and enforced
according to the fair meaning of its terms and not be construed strictly in favor of or against
either party, regardless of which party may have drafted any of its provisions. No provision of
this Agreement may be waived or modified except by a writing signed by the party against
whom the waiver or modification is sought to be enforced. This Agreement may be executed in
any number of counterpart copies, each of which shall be deemed an original, but all of which
together shall constitute a single instrument. The terms of this Agreement are binding upon and
inure to the benefit of the parties’ successors and assigns.
25. SUBJECT TO APPROPRIATION.
This Agreement is subject to the provisions of ARIZ. CONST. Art. IX, § 5 and A.R.S. § 42-
17106. The provisions of this Agreement for payment of funds or the incurring of expenses by
the Parties shall be effective when funds are appropriated for purposes of this Agreement and are
actually available for payment. Each Party shall be the sole judge and authority in determining
the availablility of funds for its obligations under this Agreement and each Party shall keep the
other Party fully informed as to the availability of funds for this Agreement. The obiligation of
each Party to make any payment pursuant to this Agreemnt is a current expense of such Party,
payable exclusively from such annual appropriations, and is not a general obligation or
indebtedness of such Party. If the governing body of either Party fails to appropriate money
sufficient to pay the amounts as set forth in this Agreement during any immediately succeeding
fiscal year, this Agreement shall terminate at the end of then-current fiscal year and each Party
shall be relieved of any subsequent obligation under this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as set forth below.
LICENSOR: LICENSEE:
TOWN OF FOUNTAIN HILLS MARICOPA COUNTY
___________________________________ ____________________________________
Kenneth W. Buchanan, Town Manager Chairman of the Board of Supervisors
ATTEST: ATTEST:
___________ ____________________________________
Beverly J. Bender, Town Clerk Date Clerk of the Board Date
APPROVED AS TO FORM: APPROVED AS TO FORM:
____________________________________ ____________________________________
Andrew J. McGuire, Town Attorney Date Deputy County Counsel Date
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EXHIBIT A
DESCRIPTION OF
MONITOR SITE
A 10’ X 10’ area in the northwest corner of
LOT 1 BLOCK 7, FOUNTAIN HILLS, ARIZONA, FINAL PLAT No. 103, according to the
plat of record in the office of the County recorder of Maricopa County, Arizona in Book 149 of
Maps, page 3.
NORTH
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EXHIBIT B
MONITOR SITE
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