RLA - MARICOPA COUNTY - 9.26.22COUNTYCOMMENTS (003) - MAC CLEAN 10.2.22.PDF
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REVOCABLE LICENSE AGREEMENT
This Revocable License Agreement (the “Agreement”) is made as of the last date
signed below, by and between Macerich Arizona Partners LLC, an Arizona limited
liability company, (“Licensor”) and Maricopa County, a political subdivision of the state
of Arizona (“Licensee”), based upon the following facts and circumstances:
A. Licensor, through various subsidiaries and affiliates, is the owner and/or
manager of the shopping centers listed on Exhibit A attached hereto and
incorporated herein by this reference (said shopping centers are collectively referred
to herein as the "Centers" and individually as a "Center"); and,
B. Licensee desires to license a portion of each Center for the Licensed
Activity (as hereinafter defined), upon such terms, covenants and conditions as are
more particularly described herein.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and the terms and conditions hereinafter set forth:
1.
Term. The “Term” of this Agreement shall commence on October 24,
2022 (the “Commencement Date”), and shall terminate on November 15, 2022 (the
“Termination Date”), unless sooner terminated as provided for herein.
Notwithstanding the foregoing, Licensor may terminate this Agreement as to any or
all Centers, at any time during the Term, on fourteen (14) days prior written notice
thereof.
If this Agreement is terminated without cause, Licensor shall refund to Licensee,
within thirty (30) days, the pro-rata amount of the License Fee (as defined below) for
the remaining portion of the month then in effect if the Agreement is terminated prior
to the Termination Date.
2.
Termination. This Agreement is subject to the provisions of A.R.S.
Section 38-511, the provisions of which are incorporated herein by this reference.
Notwithstanding anything to the contrary set forth in Section 1, the Agreement may be
terminated at the end of any fiscal year for non-appropriation of funds. The License
fiscal year ends June 30 and the Federal fiscal year ends September 30.
3.
License Fee.
a.
License Fee. Licensee shall pay to Licensor as a license fee
(the “License Fee”), the sum of Twelve Thousand Seven Hundred Sixty-
Seven Dollars and Seventy-Six Cents ($12,767.76), payable in accordance
with the amounts and the schedule per Center as set forth on Exhibit B
attached hereto and incorporated herein by reference.
b.
The License Fee payable herein includes the excise,
transaction, rental, sales or privilege tax (except net income tax) now or
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hereafter levied or imposed upon Licensor or the owner(s) of the Center by
any governmental agency on account of, attributed to or measured by this
Agreement which is subject to change based on applicable law. The License
Fee shall be sent to the following lockbox address: Macerich Partnership LP
PO BOX 848729 Los Angeles, CA 90084-8729, or any other person or firm as
Licensor may designate in writing. If Licensor so notifies Licensee writing (and
Licensee is able to reasonably comply), all fees due Licensor hereunder shall
be made by electronic money transfers in accordance with Licensor’s written
directive therefor. Licensee shall be obligated to pay the fees hereunder when
due regardless of whether Licensee receives a statement therefor.
4.
Licensed Activity. Licensee shall use the Premises (as defined
below) during the Term solely for the following purpose: Maricopa County Elections
Department Voting Centers 2022 (the "Licensed Activity"), as further described on
Exhibit C attached hereto and incorporated herein by this reference. Licensee may
not use the Premises for any other use or purpose. Any change in the use of the
Premises or Licensee’s trade name is subject to Licensor’s prior written approval,
which may be withheld in Licensor’s sole and absolute discretion.
5.
Premises. The "Premises" wherein Licensee may operate during the
Term shall be located within the areas of the Centers as collectively depicted on
Exhibit D attached hereto and incorporated herein by reference, which specific
location shall be mutually agreed upon by the parties. No other portion of the
Centers may be used by Licensee, except for the Common Area in common with
other persons and except as otherwise provided for herein. As used herein, the term
"Common Area" shall mean all realty and improvements in or at the Centers now or
hereafter made available by Licensor for the general use, convenience and benefit
of Licensee and tenants of the Centers. Licensee agrees that the Premises or any
portion thereof may be relocated at any time at the discretion of, and without liability
to, Licensor, to a mutually agreed upon location within the Centers. If Licensor and
Licensee cannot agree on the relocation premises, Licensor shall make the final
determination.
6.
Marketing and Sponsorship Components. In connection with this
Agreement, Licensee shall be granted the following advertising and sponsorship
components (“Sponsorship Components”): n/a. All Licensee created collateral,
including (i) the Sponsorship Components, (ii) signage or banners, (iii) any literature,
prizes or gifts that contain the Centers and/or Licensor’s logo; or (iv) other similar
items shall be subject to the prior approval of Licensor. Licensee agrees that
Licensor shall be entitled to review and approve the nature, content and scope of all
of items provided by Licensee. The parties acknowledge and agree that Licensor
and Licensee shall mutually determine the precise areas or locations of the
Sponsorship Components, which areas or location may be changed by Licensor. All
locations of the collateral contained herein are subject to change by Licensor. All
artwork shall be designed and provided by Licensee to Licensor. All artwork shall
contain 90% image/10% copy and require the prior approval of Licensor before any
signage or advertising is produced or displayed at the Centers. All production and
installation of signage and advertising components and graphics are to be at the sole
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expense of Licensee. Licensor will coordinate all final signage installation using
Licensee prepared artwork unless otherwise agreed to by the parties. The foregoing
marketing efforts are subject to change from time to time and may vary, based on
the circumstances for Licensor and Licensee. Licensor and Licensee agree to
negotiate in good faith regarding any changes and variances and to cooperate with
regard to any such variances and substitutions. The Sponsorship Components shall
not supersede any existing or future obligation created by a lease or other
agreement with a tenant or other occupant of the Centers.
7.
Non-Exclusivity. Licensee hereby acknowledges and agrees that the
Licensed Activity and any and all rights granted under Paragraph 5 of this
Agreement shall be non-exclusive.
8.
Insurance. Licensee is self-insured. Letter of self-insurance is
attached to this Agreement as Exhibit F.
Licensee, at its sole cost and expense, shall also obtain and keep in full force
and effect while conducting any activities at the Centers, commercial automobile
liability insurance having a combined single limit of not less than Two Million Dollars
($2,000,000.00) each accident and insuring Licensee against liability for claims arising
out of ownership, maintenance, or use of any owned, hired, borrowed or non-owned
vehicle. All such insurance shall specifically insure Licensee as to liability for injury to
or death of persons and injury or damage to property, subject to standard policy
provisions and exclusions. To the extent applicable, Licensee shall also obtain and
keep in full force and effect during the Term of this Agreement, workers’ compensation
insurance in the amount required by the State in which the Centers are located and
Employers’ Liability insurance on an “occurrence basis” but, in either case, with a limit
of not less than Five Hundred Thousand Dollars ($500,000.00) each accident, Five
Hundred Thousand Dollars ($500,000.00) each employee by disease and Five
Hundred Thousand Dollars ($500,000.00) policy aggregate by disease, covering all
persons employed by Licensee in the conduct of its operations (including all states
endorsement and, if applicable, the volunteers endorsement). Certificates evidencing
the coverages required under this Paragraph 8 shall be delivered to Licensor prior to
Licensee entering upon the Centers. Such certificates shall contain a provision that
Licensor and Licensee shall be given a minimum of fifteen (15) days written notice by
the insurer prior to cancellation, termination or material change in such insurance.
Licensee waives any rights to recover against Licensor for claims for damages
whether or not covered by insurance including claims made by Licensee’s employees,
agents or independent contractors. This provision is intended to waive fully, and for
the benefit of Licensor, any rights and/or claims which might give rise to a right of
subrogation in favor of any insurance carrier. The coverage obtained by Licensee
pursuant to this Agreement shall include, without limitation, a waiver of subrogation
endorsement attached to the certificate of insurance.
If Licensee contracts with or hires independent contractors or vendors to
participate in the Licensed Activity at the Centers, Licensee shall require such
independent contractors and/or vendors to obtain, maintain and furnish to Licensee
and Licensor satisfactory evidence of insurance with coverages, limits, and additional
insureds endorsement outlined above. Additionally, Licensee shall obtain from its
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vendors and independent contractors evidence of General Liability insurance in an
amount not less than $1,000,000 per occurrence and $2,000,000 in the aggregate,
including Licensor as additional insured. Licensee shall not allow any independent
contractor or vendor to enter the Centers until each has obtained and submitted the
insurance evidence required herein.
9.
Indemnification. Licensee hereby agrees to indemnify, defend and
hold Licensor harmless from and against any and all suits, actions, claims,
demands, losses, costs, damages, liabilities, fines, expenses and penalties
(including reasonable attorney’s fees) arising out of (i) Licensee's or its independent
contractors’ or vendors’ actual and alleged actions or non-actions; (ii) Licensee’s or
its independent contractors’ or vendors’ breach of any representation, warranty,
term, condition or performance of or under this Agreement; and (iii) the Licensed
Activity and/or any materials provided by Licensee infringe a patent, copyright, or
trademark or any other right of a third party. Licensor shall not be liable to Licensee
for any injury, damage or loss arising out of or in any way related to any act,
omission or negligence of tenants or other occupants of the Centers or patrons,
customers or invitees of the Centers, all such claims against Licensor for any such
injury, damage or loss being hereby expressly waived by Licensee. Licensee’s
obligation to indemnify Licensor as herein provided shall survive the expiration or
earlier termination of this Agreement for acts or omissions occurring prior to such
expiration or termination. For purposes of this paragraph only, the term "Licensor"
shall be deemed to include the owner(s) of the Centers and their management
companies, The Macerich Company and the partners, shareholders and/or members
of each of these entities.
10.
Sales Report. Intentionally Omitted.
11.
Default. The occurrence of any of the following shall constitute an
event of default:
a.
Any failure by Licensee to pay any sums due hereunder if such
failure continues for a period of time in excess of three (3) days after notice
from Licensor to Licensee;
b.
Any failure by Licensee to perform any other of the terms,
conditions, or covenants of this Agreement to be observed or performed by it
if such failure continues for a period of time in excess of three (3) days after
written notice; or,
c.
Licensee’s attempt to “assign” this Agreement or any of
Licensee’s rights hereunder contrary to Paragraph 12 of this Agreement.
If an event of default occurs, Licensor, in addition to any other rights or
remedies it may have at law or in equity or under this Agreement, shall have the
immediate right to unilaterally terminate this Agreement as to any or all Centers and
to remove all persons or property from the Premises (such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account of
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Licensee), all without service of notice or resort to legal process and without being
deemed guilty of trespass, or becoming liable for loss or damage which may be
occasioned thereby.
12.
Assignment. This Agreement, and the rights granted hereunder, are
personal to Licensee and are non-assignable and non-transferable by Licensee. Any
attempted assignment or other transfer of this Agreement or any rights hereunder by
Licensee shall be null and void, have no effect and confer no rights upon any third
party.
13.
Manner of Operation. Licensee and its employees shall wear
appropriate attire at all times while in the Centers pursuant to this Agreement.
Licensee agrees to comply with (and cause its officers, employees, contractors,
invitees and all others doing business with Licensee, to comply with) all rules and
regulations of general applicability regarding the Centers as may be established by
Licensor at any time and from time to time during the Term, including without
limitation the Operating Rules set forth on Exhibit E, attached hereto and
incorporated herein by reference, to the extent applicable and the rules and
regulations pertaining to signs.
14.
Suitability of Premises. Licensee hereby accepts the Premises in an
"AS IS" condition and Licensor expressly disclaims any warranty or representation
with regard to the condition, safety, security or suitability of the Premises. It is
understood by Licensee that Licensor does not provide security protection for the
Premises and/or Licensee’s property. The Premises have not undergone an
inspection by a Certified Access Specialist (CASp).
15.
Venue and Governing Law. The parties further agree that any legal
action or proceeding related to this Agreement shall be instituted in a court of
competent jurisdiction in the state of Arizona, County of Maricopa. This Agreement
shall be construed and enforced in accordance with the laws of the State of Arizona,
including the construction, performance and enforcement of the Agreement.
16.
Compliance with Laws. Licensee shall, at its sole cost and expense,
comply with all laws, ordinances, orders, rules and regulations (state, federal,
municipal or any other agency having or claiming jurisdiction) related to its activities
at the Centers as provided for under this Agreement. All business licenses and other
applicable permits and licenses shall be secured and paid for by Licensee, as
appropriate.
17.
Notices. All notices required hereunder shall be in writing and may be
delivered by personal service to the other party or via reputable overnight courier (in
which case such notice shall be deemed delivered as of the day of such delivery), or
sent postage prepaid by certified mail, return receipt requested (in which case such
notice shall be deemed delivered as of the third day after the date of such mailing),
to the following addresses, and for notices to be delivered to Licensor, a copy shall
also be sent to the Property Manager at the Centers:
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To Licensee:
Maricopa County Elections Department
510 S. 3rd Avenue
Phoenix, AZ 85003
With a copy to:
Maricopa County Real Estate Department
Attn: Director
2801 W. Durango St.
Phoenix, AZ 85009
To Licensor:
c/o Macerich
1961 Chain Bridge Road, Suite 305
McLean, VA 22102
Attn: Petra Maruca, V.P., Business Development
With a copy to:
The Macerich Company
401 Wilshire Blvd., Suite 700
Santa Monica, CA 90401
Attn: Legal Department
18.
Representations and Warranties Regarding Trademarks. Licensee
represents and warrants to Licensor that it has all of the rights required under state
and federal law for the use of trademarks and service marks of Licensee and its
affiliates, vendors, and independent contractors, including their names and logos
during the Term of this Agreement, prior to the Term, and after the Term of this
Agreement in connection with the Licensed Activity. Only with prior written approval
of Licensee, Licensee hereby grants to Licensor (at no cost to Licensor) the right and
license to use, exploit, print, publish, reproduce, display, distribute and broadcast
and to grant others the right to use, exploit, print, publish, reproduce, display,
distribute and broadcast all such trademarks and service marks, including Licensee’s
and its affiliates’, vendors’, and independent contractors’ names and logos, during
the Term of this Agreement in connection with the Licensed Activity in any media
now known or hereafter devised (including, without limitation, on Facebook,
Youtube, Twitter and Instagram), and Licensor's (or an affiliate or subsidiary
thereof's) website during the Term of this Agreement, prior to the Term and after the
Term of this Agreement in connection with the Licensed Activity.
19.
Condition of the Premises upon Termination. Upon the expiration or
earlier termination of this Agreement, in whole or in part, for any reason whatsoever,
Licensee shall leave the Premises at the Centers in a neat and broom clean
condition, free of debris and in as good condition as when the Premises were
originally delivered to Licensee and repair any penetration or hole left by the removal
of Licensee’s personal property, ordinary wear and tear and casualty damage
excepted. Licensee hereby authorizes Licensor to remove all such personal property
upon Licensee’s failure to remove all personal property from the Centers after the
expiration or earlier termination of this Agreement. Licensee hereby waives any and
all loss or damage thereto arising from the reasonable exercise of this power, and
covenants to indemnify and hold harmless Licensor from and against any costs,
claims, liens, damages or reasonable attorney fees, and costs and disbursements
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arising from such removal.
20.
Attorneys' Fees. In the event any legal action is commenced to
enforce the terms of this Agreement, the prevailing party shall be awarded its
reasonable attorneys' fees and court costs.
21.
Electronic Execution. Any signature to this Agreement transmitted
electronically through DocuSign, AdobeSign (or a comparable electronic execution
system) shall be deemed an original signature and be binding upon the parties
hereto (it being agreed that such electronic signature shall have the same force and
effect as an original signature). This agreement may be signed in counterparts.
22.
Entire Agreement. This Agreement is an integrated agreement,
containing the entire agreement between the parties as to the matters addressed
herein. There are no agreements between the parties which are not contained
herein, and Licensee has not received or relied on any representations from
Licensor or Licensor’s agents other than as provided herein. No subsequent change,
modification, or addition to this Agreement shall be binding unless in writing and
signed by the parties. All exhibits and schedules affixed to this Agreement are made
a part of, and are incorporated into, this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Licensor:
Licensee:
Macerich Arizona Partners LLC,
Maricopa County, a political
an Arizona limited liability company
subdivision of the State
of Arizona
By:
By: ________________________
Name:
Name:_
Title:
Title:
ATTEST:
By:________________________
Clerk of the Board
Date:
Approved as to Form:
___________________________
Deputy County Attorney
Date:
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EXHIBIT A
CENTERS
Center
Property (physical)
Address
Contact
Number
Biltmore Fashion Park
2502 E. Camelback Rd.,
Phoenix, AZ 85016
602-955-8401
SanTan Village
2218 E. Williams Field
Rd., Suite 235, Gilbert,
AZ
85295
480-899-1878
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EXHIBIT B
LICENSE FEE PAYMENT SCHEDULE
Center
Base Fee
Amount
Tax Fee (if
applicable)
Total
License Fee
Payment Due Date
Biltmore
Fashion Park
$6,240.00
$180.96
$6,402.96
October 24, 2022
SanTan Village
$6,240.00
$124.80
$6,364.80
October 24, 2022
Total Amount
Due:
$12,767.76
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EXHIBIT C
DESCRIPTION: Licensee to use the space designated by each Center, as depicted
on Exhibit D, as a voting location for the upcoming 2022 elections. Center to
provide 10 chairs, if available. Each inline location within the Center to be mutually
agreed upon. Signage directing voters to voting location on each Election Day as
approved by mall management team.
DATE AND TIME: Daily hours 6:00 am to 7:00 pm each Date
CENTER
SET-UP
DATES
VOTING
DATES
TEAR-
DOWN
o
Biltmore Fashion Park
o
SanTan Village
October 24,
2022 –
October 27,
2022
October 28,
2022 –
November 8,
2022
November
9, 2022 –
November
15, 2022
LICENSEE EMERGENCY CONTACT INFORMATION/E-MAIL ADDRESS: Brittney
Johnson, Facility Acquisition Manager, 602-506-8260, bjohnson@risc.maricopa.gov
A. Set-up Requirements:
1. Requirements:
a. Set up must be completed by each Center’s time of open.
b. Licensee must check in/out with Center management upon entry/exit of
the Center.
c. Licensee must use the following area to load in: Promo Doors
d. Licensee must provide COI before entering a Center.
B. Technical Requirements:
1. Electrical: Each inline location to have access to electrical.
2. Computer: n/a
3. Phone: n/a
C. Advertising & Signage:
1. Requested from Center: n/a
2. Within footprint: As provided by Licensee and approved by Center.
3. Web-site: Event will be promoted on Center's website and social media
outlets with assets provided by Licensee.
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D. On-Site Activity:
1. Product Distribution: n/a
2. Staffing: Staff as provided by Licensee.
3. Enter-to-win: n/a
4. Live Entertainment: n/a
5. Radio Remote: n/a
E. Other Third Parties Associated with the Licensed Activity: n/a
F. Equipment Requested: n/a
G. Closing and Tear Down:
1. Requirements:
a. Take down must be completed after Center closes for business and before
each Center’s time of open at.
b. Licensee must check in/out with Center management upon entry/exit of a
Center.
c. Licensee must use the following area to remove its personal property: Promo
Doors
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EXHIBIT D
PREMISES
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EXHIBIT E
OPERATING RULES
1.
Licensee shall keep the Premises open for business at all times while
conducting its Licensed Activity at the Centers and/or during the regular hours for
the Centers or as otherwise mutually agreed upon by the parties.
2.
Licensee shall display no merchandise outside the Premises, as set
forth on Exhibit D and shall keep the Premises and any displays in a safe, clean and
proper manner. All boxes and other paraphernalia are to be stored under covered
tables.
3.
Licensee shall make arrangements with the Centers management for
trash removal and ensure that all trash is promptly removed from the Premises.
4.
Licensee shall provide all necessary tables, chairs, identical table
skirting (unless provided by Centers management), signs, etc. All tables must be
covered to the floor on all four sides. The tops of tables must also be covered.
5.
Any signs used at the Premises shall be professionally prepared,
stating the name of the business and reason for display. All signs are subject to
Licensor’s prior approval. Any signage must be approved by the Center’s Marketing
Manager prior to entering the Center.
6.
Licensee shall, upon execution of this Agreement, adhere to all plans
provided to the Center’s Marketing Manager related to the Premises layout, location
of equipment, set-up and take-down, and times and dates of display.
7.
Licensee shall not permit food or beverages to be consumed at the
Premises. Licensee shall not permit food or beverages to be distributed or sold to
customers at the Premises without Licensor’s prior approval.
8.
Licensee shall display customer sales return policies to the extent
applicable.
9.
Licensee shall not permit loitering nor solicitation at the Premises. At
no time may any person call out, directly solicit or physically detain customers nor
may they enter any store at the Centers or any other premises for the purpose of
solicitation. Licensee may not distribute fliers at the Centers outside of the Premises.
10.
Licensee shall not permit the playing of any musical instrument or radio
or television (including radio remote) or the use of a microphone or loudspeaker in
the Premises without Licensor’s prior written approval. Licensor reserves the right to
terminate this Agreement if the volumes exceed those deemed appropriate by
Licensor in its sole discretion.
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11.
Licensee shall furnish Licensor with emergency contact telephone
numbers, e-mail address and a forwarding mailing address.
12.
Licensee shall secure and be responsible for the Premises at the close
of business each day. Licensor assumes no responsibility for the merchandise or
display.
13.
Licensee shall deliver and surrender to Licensor immediate possession
of the Premises upon the expiration of the Agreement or its earlier termination as
provided for in the Agreement, in the same condition as delivered, normal wear and
tear excluded, in broom clean condition.
14.
Licensee shall comply with all rule and regulations established by
Licensor from time to time with respect to the common areas, facilities and
sidewalks.
15.
All items to be sold at the Premises are subject to Licensor’s prior
approval.
16.
All merchandise must be hand-carried to the Premises or, if dollied, the
dolly must have wide rubber wheels only.
17.
No equipment (hand trucks, ladders, tools, etc.) will be available or
supplied by the Center or its management.
18.
All forms of equipment (i.e., stanchions, fencing, staging, etc.) brought
to the Center by Licensee must have approval by Licensor prior to set up.
19.
All materials and equipment shall be brought to the Premises at the
times specified by Center management or the Marketing Manager for the Center.
20.
Nothing may be taped or otherwise affixed to fixtures in the Center.
Nothing may be attached, secured to or hung from any architectural fixture in the
Center. This includes by way of example, but is not limited to, walls, ceiling,
sculptures, seating areas, plants or planters.
21.
Electrical cords may not be run along the Center’s floor and customer
traffic walkways, except in areas approved by Licensor in advance and such areas
must be covered with an approved electrical cover.
22.
A Center representative will be opening floor electrical sockets and
plates at entry time for the Licensed Activity to the extent applicable. Licensee is
prohibited from moving these items. Only 110-volt household current is available.
All electrical cords must be UL-approved. All power requirements must be discussed
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and approved by Licensor.
Center management must supervise all approved
electrical installations and set up.
23.
Wax floor finishes in the Center are delicate and easily scratched.
Licensee is responsible for any and all damage to the floor in the Center caused by it
due to the set-up, tear-down and operation of the Premises.
24.
No credit card signs may be displayed.
25.
The maximum height allowed for the top of the Premises is six (6) feet.
26.
Licensee and each of its employees shall park their vehicles only in
areas designated by the Center’s management.
27.
Licensee shall furnish and pay for all labor needed to set up and take
down the Premises. Licensee’s set-up may not commence earlier than one (1) day
prior to Licensee’s Licensed Activity and the complete take down must be finished
the day after Licensee’s Licensed Activity has ended. All Licensee equipment,
including, but not limited to, portable restrooms, bottled water, dumpsters, etc. must
be removed from the Center by that date.
28.
Failure by Licensee, its agents, employees and contractors to abide by
any of these Operating Rules shall entitle Licensor to immediately terminate this
Agreement.
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EXHIBIT F
Self-insurance Letter
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