LICENSE WITH PHOENIX AND DESERT ARCHAEOLOGY FOR USE OF VACANT PROPERTY.DOCX

REVOCABLE LICENSE AGREEMENT
BETWEEN
MARICOPA COUNTY,
AND
THE CITY OF PHOENIX AND [CONTRACTOR]
C-18-14-005-3-00
P-50235
THIS revocable License Agreement (the “Agreement”) is made and entered into by and between
Maricopa County, a political subdivision of the State of Arizona hereinafter referred to as
LICENSOR, and the City of Phoenix, an Arizona municipal corporation (“CITY”), and Desert
Archaeology, Inc., an Arizona corporation, (“CONTRACTOR”) hereinafter collectively referred to
as LICENSEES, collectively the “PARTIES”.
WITNESSETH
WHEREAS, LICENSOR owns certain real property at the northwest corner of 9th Avenue and
Madison in Phoenix, Arizona, designated by the Maricopa County Assessor’s Office as APN 112-
05-088A and APN 112-05-089A and as shown in Exhibit “A” (the “Premises”) which is attached
hereto and made a part of this Agreement; and
WHEREAS, LICENSEES desires revocable use of the Premises to temporarily stockpile excavated
material as part of the LICENSEES’ archaeological study in the area; and
WHEREAS LICENSEEs have determined that the Premises is a suitable parcel to temporarily
stockpile LICENSEES’ excavated materials.
NOW THEREFORE, in consideration of the foregoing recitals and other valuable consideration the
PARTIES agree as follows:
I. TERM
1. The accuracy of the foregoing recitals is acknowledged and by this reference incorporated into
this Agreement.
2. This Agreement shall be effective upon execution by LICENSOR for an initial term beginning
when executed by the Chairman of the Maricopa County Board of Supervisors and expiring on
December 31, 2013 (“Expiration Date”), unless terminated earlier, pursuant to the terms of this
Agreement.
II. SCOPE
Upon execution of this Agreement, LICENSOR shall make property under LICENSOR’s control
available to LICENSEES for LICENSEES’ use as follows:
1. LICENSOR shall allow LICENSEES and their employees and LICENSEES’ agents,
contractors, subcontractors consultants and their employees access to the Premises for
LICENSEES’ use of the Premises as allowed herein.
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2. LICENSEES shall use the Premises for the sole and exclusive purpose of CONTRACTOR,
temporarily stockpiling excavated materials as part of LICENSEES’ archaeological study
being performed by CONTRACTOR pursuant to its contract with City in the general area of
the Premises, and CITY’s inspection of work performed by CONTRACTOR. LICENSEES
shall be solely responsible for all costs and expenses associated with LICENSSES’ use of the
Premises.
3. Unauthorized use of Premises by LICENSEES for uses other than the Permitted Use shall be
a breach of this Agreement. Failure by LICENSEES to comply with specific requirements of
this Agreement within ten (10) days of LICENSOR’S written notice to LICENSEES of such
failure will constitute an event of default and will be sufficient cause for termination of the
Agreement.
4. LICENSEES, at their sole cost and expense, shall be responsible to comply with all laws,
ordinances, orders, rules and regulations of any governmental authority whether now or
hereafter in effect associated with LICENSEES’ use of the Premises. LICENSEES, at their
sole cost and expense, shall keep the Premises in a clean and safe manner at all times.
5. LICENSEES, at their sole cost and expense, shall return the Premises in a clean, safe, level,
stabilized and usable condition. LICENSEES shall return the Premises clear of all trash,
debris, and stockpiled materials. LICENSEES shall maintain the Premises in compliance
with all local, state and federal codes, laws, statutes and regulations (“Applicable Laws”).
All stockpiled materials, trash and debris on the Premises must be removed from the
Premises and disposed of in an appropriate manner.
6. LICENSEES shall pay LICENSOR a license fee of one dollar for the use of the Premises.
III. ENTRY AND INSPECTION
LICENSOR shall have the right at all times but shall not be required to enter onto and inspect the
Premises. LICENSOR will notify LICENSEES of any unsatisfactory condition in violation of this
Agreement. LICENSEES shall take prompt action to correct such condition(s) at LICENSEES’
expense.
IV. ENVIRONMENTAL COMPLIANCE
If LICENSEES’ activities result in adverse environmental impacts in violation of Applicable Laws,
LICENSEES will be fully accountable for any resulting site assessment and cleanup cost required
to restore the Premises. LICENSOR will not seek compensation or restitution from LICENSEES
as a “Potentially Responsible Party” for any release of a contaminant/hazardous substance on the
premises prior to the effective date of this Agreement.
Subject to the provisions set forth herein, LICENSOR agrees that LICENSEES may use and store
hazardous material at or on the Property as long as it is solely for the use of the Premises and in
compliance with Applicable Laws.
LICENSEES shall provide to LICENSOR, in writing, a complete list identifying all hazardous
material or petroleum products and approximate quantities to be brought on site and when such
products will be removed.
Additionally, LICENSEES shall prepare and implement any necessary remediation action plan in
accordance with all Applicable Laws. LICENSEES shall keep Material Safety Data Sheets
documents on site for those materials and products.
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LICENSEES shall report to LICENSOR within twenty-four (24) hours of knowledge of any event
or occurrence at the Premises which results in pollution or contamination in violation of Applicable
Laws adversely affecting the Premises.
CONTRACTOR shall protect, defend, indemnify and hold harmless LICENSOR from and against
all liabilities, costs, charges and expenses, including civil or criminal penalties, attorney’s fees and
court costs arising out of or related to an activity involving or use of a regulated substance under
any Applicable Laws because of: (a) any such substance that came to be located on the Premises by
the conduct, action or negligence of LICENSEES; or (b) any release, threatened release or escape
of any substance in, on, under or from said Premises that is caused, in whole or in part, by any
conduct, action or negligence of LICENSEES.
For the purposes of this Agreement, the term “regulated substances” shall include substances
defined as “regulated substances,” “hazardous waste,” “hazardous substances,” “hazardous
materials,” “toxic substances” or “pesticides” in the Resource Conservation and Recovery Act, as
amended by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended in 1986 to include
Superfund Amendments and Reauthorization Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the relevant
local and state environmental laws, and the regulations, rules and ordinances adopted and
publications promulgated pursuant to the local, state, and federal laws. This indemnification shall
include, without limitation, claims or damages arising out of any violations of Applicable Laws.
This environmental indemnity shall survive the expiration or termination of this Agreement and/or
any transfer of all or any portion of the Premises and shall be governed by the laws of the State of
Arizona, if applicable. CONTRACTOR accepts sole responsibility and liability for all wastes
produced by its operation, activities and occupation of the Premises and shall comply with all
Applicable Laws concerning such wastes, including federal, state, and local regulatory
requirements. Any such waste must be disposed of in compliance with the above.
CONTRACTOR agrees it shall be solely responsible for and assumes all responsibility for the
actions of LICENSEES, their agents, employees and contractors in generating, storing, releasing,
placing or allowing to remain on the Premises any hazardous substances, hazardous wastes, or
toxic substances (hereinafter collectively referred to as “Hazardous Substances”), as those terms as
defined and regulated under CERCLA, 42 U.S.C. 9601 et seq., RCRA, 42 U.S.C. 6901 et seq., or
TSCA, 15 U.S.C. 2601 et seq. LICENSEES further agree to comply with all environmental laws
and regulations and to take such other actions as may be reasonably required to protect against
environmental liabilities relating to LICENSEES’ use of the Premises. Any such “hazardous
substances” must be disposed of pursuant to and in compliance with all Applicable Laws
concerning the use and disposal of such substances.
Management and proper disposal of all hazardous material used by or on behalf of LICENSEES at
the Premises is the responsibility of CONTRACTOR. CONTRACTOR must keep appropriate and
required documentation relating to the management and disposal of all hazardous material.
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V. OWNERSHIP OF EQUIPMENT
LICENSOR and LICENSEES acknowledge that all equipment and improvements of LICENSEES
shall be deemed personal property of LICENSEES. It is expressly understood and agreed that
LICENSEES retain title to all personal property LICENSEES bring onto the Premises. LICENSOR
shall not be responsible for any damage to any personal property of LICENSEES and LICENSEES
and/or any of its employees, agents, officers, directors or members hereby waive any and all rights
to bring any claim against LICENSOR from or relating in any way to damage to the personal
property of LICENSEES.
VI. AGREEMENT AS LICENSE
The Parties intend and mutually agree that this Agreement shall be construed as a mere license by
LICENSOR to LICENSEES to use the Premises for storage of dirt excavated from an
archaeological study site. This Agreement shall not be construed as a lease, sublease, rental
agreement or easement. It is understood and mutually agreed that LICENSEE has no real property
interest in the Premises.
VII. NO PARTNERSHIP OR JOINT VENTURE
Nothing contained in this Agreement shall create any partnership, joint venture or other
arrangement between LICENSOR and LICENSEES. 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.
VIII. APPLICABLE LAW:
This Agreement and all obligations upon LICENSOR or LICENSEES arising therefrom shall be
subject to any limitations of budget law or other applicable local law or regulation. The PARTIES
hereto shall comply with all Applicable Laws. The terms of this Agreement shall be construed in
accordance with the laws of the State of Arizona and any action thereon shall be brought in the
appropriate court located in the state of Arizona.
IX. TERMINATION:
This Agreement may be terminated by either LICENSEES or LICENSOR, with or without cause,
upon thirty (30) days written notice to the non-terminating party. This Agreement shall be
automatically revoked in the event of, or at such time that LICENSEES fail to comply with the
express terms of this Agreement, unless said failure is cured within ten (10) days of the date of the
notice to cure.
X. RETURN OF PREMISES
Upon expiration or earlier termination of this Agreement, LICENSEES shall restore the Premises
to unimproved land condition, substantially similar to the condition of the Premises as of the date
of this Agreement. LICENSEES shall repair any damage to the Premises caused by its use of the
Premises pursuant to the terms of this Agreement. Any personal property of LICENSEES not
removed on or before the Expiration Date or earlier termination date shall be deemed to have been
abandoned by LICENSEES and may be disposed of or retained by LICENSOR as LICENSOR
may desire.
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XI. ASSIGNMENT:
Any assignment or attempted assignment of this Agreement by LICENSEES without the prior
written consent of LICENSOR shall be void.
XII. NON-WAIVER:
The failure of either LICENSEES or LICENSOR to insist upon the complete performance of any
of the terms and provisions of this Agreement be performed on the part of the other, or to take any
action permitted as a result thereof, shall not constitute a waiver or relinquishment of the right to
insist upon full and complete performance of the same, or any other covenant or condition, either in
the past or in the future.
XIII. CONFLICT OF INTEREST:
This Agreement is subject to the provisions of A.R.S. § 38-511.
XIV. ENTIRE AGREEMENT:
This Agreement and all Exhibits attached hereto sets 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.
XV. INDEPENDENT CONTRACTOR STATUS
LICENSEES shall not be considered an officer, employee or agent of LICENSOR. LICENSEES’
officers, agents, employees and guests shall not be considered employees of Maricopa County and
they shall not be entitled to receive any of the benefits associated with regular employment with
Maricopa County or the Maricopa County Public Finance Corporation and will not be subject to
the provisions of the Maricopa County Employee Merit System. This Agreement is not intended to
constitute, create, give rise to or otherwise recognize a joint venture agreement or relationship,
partnership or formal business organization of any kind, and the rights and obligations of the
Parties shall be only those expressly set forth in this Agreement.
XVI. INDEMNIFICATION
To the fullest extent permitted by law and except for the gross negligence or willful misconduct of
LICENSOR, CONTRACTOR shall indemnify, defend and hold harmless CITY and LICENSOR
and their respective officers, employees and agents from and against any and all damages, claims,
losses, liabilities, actions or expenses (including, but not limited to attorneys’ fees, expert witness
fees, court costs and the cost of appellate proceedings) (collectively “Claims”) relating to or arising
from (i) use of the Premises by LICENSEES, their agents, contractors, employees or invitees; (ii)
the negligence or willful misconduct of LICENSEES, their agents, employees or invitees; or (iii)
the breach of this Agreement by LICENSEES. LICENSEES’ duty to defend, hold harmless and
indemnify LICENSOR pursuant to this section shall arise in connection with any claim, damage,
loss or expense that is attributable to bodily injury, sickness, disease, including death, or to injury
to, impairment, or destruction of property, including but not limited to personal property belonging
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to LICENSEES and LICENSEES’ employees, arising from or related to this Agreement, including
claims resulting in whole or in part from the acts, errors, mistakes, omissions, work or services of
LICENSEES or anyone for whose acts LICENSEES may be legally liable. CONTRACTOR will
be responsible for primary loss investigation and defense and judgment costs where this
Indemnification applies. CONTRACTOR’S obligations under this section shall survive the
expiration or earlier termination of this Agreement. The amount and type of insurance coverage
requirements set forth herein will in no way be construed as limiting the scope of the indemnity in
this paragraph.
XVII. RELEASE
In consideration of the granting of this License, CONTRACTOR voluntarily and knowingly
releases and discharges LICENSOR and its agents, contractors, employees, members, officers and
partners, if any, from any and all liabilities, claims, obligations, demands, causes of action,
damages, costs, expenses, attorneys’ fees, and rights whatsoever, in law or in equity, whether
known or unknown, that CONTRACTOR, or anyone claiming through or under CONTRACTOR
may have or may claim to have, which now exist or may hereafter arise resulting from the exercise
of license granted by this Agreement; provided that such release shall not extend to the gross
negligence or willful misconduct of CONTRACTOR, its agents, contractors or employees.
XVIII. INSURANCE
CONTRACTOR and its contractors or subcontractors, at CONTRACTOR’s expense, shall
purchase and maintain the herein stipulated minimum insurance from a company or companies
authorized to issue insurance by the State of Arizona and possessing a current A.M. Best, Inc.
rating of A-VII. All insurance required herein shall be maintained in full force and effect until the
expiration or termination of this License. Failure to do so may, at the sole discretion of
LICENSOR, constitute a material breach of this LICENSE. CONTRACTOR’s insurance shall be
primary insurance as respects LICENSOR, and any insurance or self-insurance maintained by
LICENSOR shall not contribute to it. Any failure to comply with the claim reporting provisions of
the insurance policy or breach of an insurance policy warranty shall not affect LICENSOR’s right
to coverage afforded under the insurance policies. The insurance policies may provide coverage
that contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions
shall not be applicable with respect to the indemnity or coverage provided to LICENSOR under
such policies. CONTRACTOR shall be solely responsible for deductible and/or self-insured
retention and LICENSOR, at its option, may require CONTRACTOR to secure payment of such
deductibles or self-insured retentions by a surety bond or an irrevocable and unconditional letter of
credit. LICENSOR reserves the right to request and to receive, within ten working days, certified
copies of any or all of the herein required insurance policies and/or endorsements. LICENSOR
shall not be obligated, however to review such policies and/or endorsements or to advise
CONTRACTOR of any deficiencies in such policies and endorsements, and such receipt shall not
relieve CONTRACTOR from, or be deemed a waiver of CONTRACTOR’s right to insist on strict
fulfillment of CONTRACTOR’s obligations under this Agreement. CONTRACTOR’s insurance
policies required by the Agreement, except Workers’ Compensation, shall name LICENSOR and
CITY and their respective agents, representatives, officers, directors, officials and employees as
Additional Insureds, with an endorsement as lease as broad as ISO’s CG20101185.
CONTRACTORS’ insurance policies required hereunder shall contain a waiver of transfer of
rights of recovery (subrogation) against LICENSOR and CITY, and their respective agents,
representatives, officers, directors, officials and employees for any claims arising out of
CONTRACTOR’s use of the Premises. CONTRACTOR is required to procure and maintain the
following coverages:
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1. Commercial General Liability. Commercial General Liability insurance and, at
LICENSEE’s election, Umbrella insurance with a combined limit of not less than
$2,000,000 for each occurrence, $4,000,000 Products/Completed Operations
Aggregate, and $4,000,000 and General Aggregate Limit. The policy shall include
coverage for premises liability, bodily injury, broad form property damage,
personal injury, products and completed operations and blanket contractual
coverage, and shall not contain any provision which would serve to limit third
party action over claims.
2. Automobile Liability. Commercial/Business Automobile Liability insurance and,
if necessary, Commercial Umbrella insurance with a combined single limit for
bodily injury and property damage of not less than $1,000,000 each occurrence
with respect to any of LICENSEE’s owned, hired, and non-owned vehicles
assigned to or used in performance of LICENSEE’s use of the Premises.
3. Workers’ Compensation. Workers’ Compensation insurance to cover obligations
imposed by federal and state statutes having jurisdiction LICENSEE’s employees
engaged in the performance of the work or services associated with the use of the
Premises; and Employer’s Liability insurance of not less than $1,000,000 for each
accident, $1,000,000 disease for each employee, and $1,000,000 disease policy
limit. LICENSEE and its contractors waive all rights against LICENSOR and its
agents, officers, directors and employees for recovery or subrogation.
4. Property Insurance. Property insurance in an amount necessary to repair or
replace LICENSOR’s personal property in LICENSEE’s care, custody and control.
5. Environmental/Pollution. Liability insurance in an amount of $2,000,000 per
occurrence and $4,000,000 aggregate.
Prior to the commencement of this Agreement, CONTRACTOR shall furnish LICENSOR with
Certificates of Insurance in a form acceptable to LICENSOR, or formal endorsements as required
by LICENSOR, issued by CONTRACTOR’s insurer(s), as evidence that policies providing the
required coverages, conditions and limits required by this Agreement are in full force and effect.
Such certificates shall identify this Agreement number and title. In the event any insurance policies
required by this Agreement are written on a “claims made” basis, coverage shall extend for two (2)
years past expiration or termination of this Agreement as evidenced by annual Certificates of
Insurance. If a policy does expire during the term of the Agreement, a renewal certificate must be
sent to LICENSOR at least fifteen business days prior to the expiration date. Insurance required
herein shall not expire, be canceled, or materially changed without thirty (30) days prior written
notice to LICENSOR.
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XIX. NOTICES
All notices provided for herein shall be in writing and sent by certified mail to the Parties at the
following addresses:
LICENSEES:
CITY:
Todd Belzner
City of Phoenix
Finance Department, Real Estate Division
251 West Washington 8th Floor.
Phoenix, Arizona 85003
CONTRACTOR:
Desert Archaeology, Inc.
509 S 48th St # 104
Tempe, AZ 85281
LICENSOR: Maricopa County Finance Department
Attn: Real Estate Manager
301 W. Jefferson, Suite 960
Phoenix, AZ 85003
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C-18-14-005-3-00
P-50235
IN WITNESS WHEREOF, the Parties enter into this AGREEMENT this ______ day of September,
2013.
LICENSEES LICENSOR
CITY:
CITY OF PHOENIX, a municipal
Corporation
DAVID CAVAZOS, City Manager
By: By: _________________________________
Mary Vivion-Withrow Chairman, Board of Supervisors Date
Deputy Finance Director
Attest: Attest:
________________________________ ________________________________________
City Clerk Date Clerk of the Board Date
Approved as to Form: Approved as to Form:
By: ________________________________ By: ________________________________
City Attorney Date Deputy County Attorney Date
CONTRACTOR:
DESERT ARCHAEOLOGY, INC.
By:________________________________
Its: Date
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Exhibit “A”
Premises
PREMISES
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