AMENDED AND RESTATED LICENSE WITH KEN SHEELY RANCHES PARTNERS.PDF
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P50314 C-70-18-002-M-07 Page 1 of 10 AMENDED AND RESTATED REVOCABLE LICENSE AGREEMENT BETWEEN MARICOPA COUNTY AND KEN SHEELY RANCHES PARTNERS This Amended and Restated Revocable License Agreement (the “Agreement”) is made and entered into by and between Maricopa County, a political subdivision of the State of Arizona (the “Licensor” or “County”), and Ken Sheely Ranches Partners (the “Licensee”). County and Licensee may be referred to herein collectively as (the "Parties") and individually as (the "Party”). RECITALS WHEREAS, this Agreement shall constitute the entire agreement between the Parties and sets forth all of the covenants, promises, and agreements, either oral or written, between County and Licensee, and supersedes all prior agreements between the Parties which, as of the date hereof, are no longer in effect; and WHEREAS, County owns certain real property at the northwest corner of 103rd Avenue and Van Buren Street in Avondale, Arizona (the “Property”), a portion of which consists of approximately 13.1 acres of agricultural land (the “Premises”) as depicted in Exhibit “A” which is attached hereto and by this reference made a part of this Agreement; and WHEREAS, Licensee desires to use the Premises for the purpose of dust mitigation and farming crops (the “Permitted Use”) and has determined that the Premises is a suitable parcel to farm. AGREEMENT NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, County and Licensee agree as follows: 1. SCOPE 1.1. County shall allow Licensee access to the Premises for Licensee’s Permitted Use of the Premises as provided herein. 1.2. Use of Premises by Licensee for uses other than the Permitted Use shall be a breach of this Agreement. Failure by Licensee to comply with specific requirements of this Agreement within ten (10) days of Licensee’s receipt of County’s written notice to Licensee of such failure will constitute an event of default and will be sufficient cause for termination of the Agreement. 1.3. Licensee shall use the Premises for the Permitted Use only. Licensee, at Licensee’s sole cost and expense, shall cultivate and farm the Premises in a skillful and diligent manner consistent with quality farming in Maricopa County, Arizona. Licensee agrees to keep the Premises free of weeds, trash, debris, and other noxious plants or growth on the Premises and dispose of such in an appropriate manner. Licensee agrees to maintain the Premises in compliance with all local, state and federal codes, laws, statutes, ordinances and regulations, including those regarding airborne particulate matter (“Applicable Laws”). Licensee shall keep the Premises in a clean and safe manner at all times. 1.4. Licensee shall provide and maintain barriers/berms necessary to prevent water from exiting the Premises and/or entering the Property that is not a part of the Premises. P50314 C-70-18-002-M-07 Page 2 of 10 2. TERM AND TERMINATION 2.1. This Agreement is for a period of approximately five (5) years and shall be effective when executed by County (“Effective Date”) and expire on December 31, 2027, (“Term”), unless terminated earlier, pursuant to the terms of this Agreement. 2.2. At County’s sole discretion, the Term of this Agreement may be extended on the same terms and conditions, upon written agreement of the Parties. 2.3. This Agreement may be terminated by either County or Licensee, with or without cause, upon issuance of one-hundred and eighty (180) days’ written notice to the non-terminating Party. 2.4. Upon expiration or earlier termination of this Agreement, Licensee at its sole cost and expense, shall restore the Premises to unimproved land condition and shall return the Premises in a clean, safe and usable condition. Licensee shall repair any damage to the Premises caused by its use of the Premises. Any personal property of Licensee not removed on or before the expiration date or earlier termination date shall be deemed to have been abandoned by Licensee and may be disposed of or retained by County as County may desire. 3. LICENSE FEE 3.1. Licensee shall pay County an annual non-refundable license fee of Eight Hundred Fifty Dollars ($850.00), plus applicable taxes, for the use of the Premises (“License Fee”). The License Fee shall be paid to County on or before January 31st of each new calendar year for each year of the Term (“Term Year”), as shown below in the License Fee Schedule. Each annual payment will be sent to the County address as provided in Section 14. License Fee Schedule Term Year Licensee Fee Payment Due Date Effective Date through 12/31/2023 1/31/2023 1/1/2024 through 12/31/2024 1/31/2024 1/1/2025 through 12/31/2025 1/31/2025 1/1/2026 through 12/31/2026 1/31/2026 1/1/2027 through 12/31/2027 1/31/2027 4. OWNERSHIP OF EQUIPMENT 4.1. County and Licensee acknowledge that all equipment and improvements of Licensee shall be deemed personal property of Licensee. It is expressly understood and agreed that Licensee retains title to all personal property Licensee brings onto the Premises. County shall not be responsible for any damage to any personal property of Licensee and Licensee and/or any of its employees, agents, officers, directors or members hereby waive any and all rights to bring any claim against County from or relating in any way to damage to the personal property of Licensee. 5. AGREEMENT AS LICENSE 5.1. The Parties intend and agree that this Agreement shall be construed as a mere license by County to Licensee to operate within the Premises. This Agreement shall not be construed as a lease, sublease, rental agreement, or easement. It is understood and agreed that Licensee has no interest whatsoever in the Premises and/or Property. P50314 C-70-18-002-M-07 Page 3 of 10 6. NO PARTNERSHIP OR JOINT VENTURE 6.1. Nothing contained in this Agreement shall create any partnership, joint venture or other arrangement between County and Licensee. 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. 7. GOVERNING LAW 7.1. This Agreement and all obligations upon County or Licensee 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. 8. ASSIGNMENT 8.1. Any assignment or attempted assignment of this Agreement by Licensee without the prior written consent of County shall be void. 9. NON-WAIVER 9.1. The failure of either Licensee or County 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. 10. ENVIRONMENTAL COMPLIANCE 10.1. If Licensee’s activities result in adverse environmental impacts in violation of Applicable Laws, Licensee will be fully accountable for any resulting site assessment and cleanup cost required to restore the Premises. County will not seek compensation or restitution from Licensee 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, County agrees that Licensee may use and store hazardous material at or on the Premises as long as it is solely for the use of the Premises and in compliance with Applicable Laws. Licensee shall provide to County, 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, Licensee shall prepare and implement any necessary remediation action plan in accordance with all Applicable Laws. Licensee shall keep Material Safety Data Sheets documents on site for those materials and products. Licensee shall report to County 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. 10.2. Licensee shall protect, defend, indemnify and hold harmless County from and against all liabilities, costs, charges and expenses, including civil or criminal penalties, attorneys’ 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 Licensee; or (b) any release, threatened release P50314 C-70-18-002-M-07 Page 4 of 10 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 Licensee. 10.3. 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. Licensee 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. 10.4. Licensee agrees it shall be solely responsible for and assumes all responsibility for the actions of Licensee, its 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. Licensee further agrees 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 Licensee’s 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. 10.5. Management and proper disposal of all hazardous material used by or on behalf of Licensee at the Premises is the responsibility of Licensee. Licensee must keep appropriate and required documentation relating to the management and disposal of all hazardous material. 11. INDEMNIFICATION 11.1. To the fullest extent permitted by law and except for the gross negligence or willful misconduct of County, Licensee shall indemnify, defend and hold harmless County and all of its 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 Licensee, its agents, contractors, employees or invitees; or (ii) the breach of this Agreement by Licensee. Licensee’s duty to defend, hold harmless and indemnify County 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 to County and County’s 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 Licensee or anyone for whose acts Licensee may be legally liable. Licensee will be responsible for primary loss investigation and defense and judgment costs where this Indemnification applies. P50314 C-70-18-002-M-07 Page 5 of 10 Licensee’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. 12. RELEASE 12.1. In consideration of the granting of this License, Licensee voluntarily and knowingly releases and discharges County 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 Licensee, or anyone claiming through or under Licensee may have or may claim to have, which now exist or may hereafter arise resulting from the exercise of license granted by this Agreement. 13. INSURANCE 13.1. Licensee, and Licensee’s contractors, at Licensee’s or 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 Agreement. Failure to do so may, at the sole discretion of County, constitute a material breach of this Agreement. Licensee’s insurance shall be primary insurance as respects County, and any insurance or self-insurance maintained by County 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 County’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 County under such policies. Licensee shall be solely responsible for deductible and/or self-insured retention and County, at its option, may require Licensee to secure payment of such deductibles or self- insured retentions by a surety bond or an irrevocable and unconditional letter of credit. County 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. County shall not be obligated, however to review such policies and/or endorsements or to advise Licensee of any deficiencies in such policies and endorsements, and such receipt shall not relieve Licensee from, or be deemed a waiver of County’s right to insist on strict fulfillment of Licensee’s obligations under this Agreement. Licensee and its contractors’ insurance policies required by the Agreement, except Workers’ Compensation, shall name County, its agents, representatives, officers, directors, officials and employees as Additional Insureds, with an endorsement as lease as broad as ISO’s CG20101185. Licensee and its contractors’ insurance policies required hereunder shall contain a waiver of transfer of rights of recovery (subrogation) against County, its agents, representatives, officers, directors, officials and employees for any claims arising out of Licensee’s use of the Premises. Licensee is required to procure and maintain the following coverages: 13.1.1. 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. P50314 C-70-18-002-M-07 Page 6 of 10 13.1.2. 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. 13.1.3. 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 County and its agents, officers, directors and employees for recovery or subrogation. 13.1.4. Property Insurance. Property insurance in an amount necessary to repair or replace County’s personal property in Licensee’s care, custody and control. 13.1.5. Environmental/Pollution. Liability insurance in an amount of $2,000,000 per occurrence and $4,000,000 aggregate. 13.2. Prior to the commencement of this Agreement, Licensee shall furnish County with Certificates of Insurance in a form acceptable to County, or formal endorsements as required by County, issued by Licensee’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 County 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 County. 14. NOTICES 14.1. All notices provided for herein shall be in writing and sent by certified mail to the Parties at the following addresses. Any such notice shall be deemed delivered three (3) business days following the depositing of the same in a post office box regularly maintained by the United States Postal Service. County: Maricopa County Real Estate Department Attn: Director 2801 West Durango Street Phoenix, AZ 85009 Licensee: Ken Sheely Ranches Partners Attn: Ken Sheely 2209 N. 99th Avenue Phoenix, Arizona 85037 P50314 C-70-18-002-M-07 Page 7 of 10 15. CONFLICTS OF INTEREST. 15.1 This Agreement may be canceled for conflicts of interest as described under A.R.S. § 38-511. 16. AMENDMENT. 16.1 Any amendment to this Agreement shall be in writing and executed on behalf of both Parties. 17. AUTHORITY. 17.1 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 that Party and on or before the Effective Date, County shall deliver to Licensee proof of such authority. This Agreement is binding upon each Party in accordance with the terms and conditions hereof. 18. ADMINISTRATION OF AGREEMENT. 18.1 This Agreement shall be administered for the County, including execution of documents, by the Maricopa County Assistant County Manager and/or the Director of the Maricopa County Real Estate Department. 19. COUNTERPARTS; ELECTRONIC SIGNATURES 19.1 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. Electronic signatures shall have the same force and effect as original signatures. 20. RECITALS 20.1 The Recitals, by this reference, are hereby incorporated in this Agreement. THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK License No. P50314 C-70-18-002-M-07 Page 8 of 10 IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date. LICENSOR: Maricopa County, a political subdivision of the State of Arizona ____________________________________ Bill Gates Chairman of the Board of Supervisors ATTEST: ____________________________________ Clerk of the Board Date APPROVED AS TO FORM: ____________________________________ Deputy County Attorney Date License No. P50314 C-70-18-002-M-07 Page 9 of 10 LICENSEE: Ken Sheely Ranches Partners __________________________________ Ken Sheely, Managing Member ____________________________________ Date License No. P50314 C-70-18-002-M-07 Page 10 of 10 Exhibit “A” Premises