LICENSE AGREEMENT WITH ARIZONA CENTER FOR NATURE CONSERVATION.PDF
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LICENSE AGREEMENT
This License Agreement (“Agreement”) will be effective as of the date last signed below,
(“Effective Date”), between Arizona Center for Nature Conservation, an Arizona nonprofit corporation
(“Licensor”) and Maricopa County, a political subdivision of the State of Arizona (“Licensee”). Licensor
and Licensee are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
WHEREAS, Licensor leases the property and certain buildings known as the Phoenix Zoo located at 455
North Galvin Parkway, Phoenix, AZ, 85008, which is described on Exhibit “A”, attached hereto and
incorporated herein by this reference (the “Property”) and Licensee desires to use an area within the
Property (“Kiosk and Monitor Site Locations”) also as depicted on Exhibit “A” for the Permitted Use as
hereinafter defined; and
WHEREAS, Licensee desires use of the Property and the Kiosk and Monitor Site Locations to establish
and provide engaging, interactive Clean Air Make More educational kiosk and an air monitoring station by
installing, in cooperation with Licensor, and operating (i) a non-regulartory air quality monitoring station
measuring the following elements: ozone, temperature, nitrogen dioxide, PM2.5 and PM10 and (ii) operating
an interactive kiosk (collectively, the “Permitted Use”); and
WHEREAS, Licensee has determined that the Property and the Kiosk and Monitor Site Locations are
suitable to establish Licensee’s accommodation area to address Licensee’s plans associated with the
Permitted Use.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual agreements herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:
1.
LICENSED AREA/KIOSK AND MONITOR SITE LOCATIONS
As described on Exhibit “A”, the kiosk and monitor stations will be located at the Kiosk and
Monitor Site Locations and upon mutual agreement of the Parties, Licensee will place or move
the kiosk and monitoring stations within the Property at the direction of Licensor.
2.
REPRESENTATIONS AND WARRANTIES
A.
Licensor represents and warrants to Licensee that: (i) the person executing this Agreement
on behalf of, or as a representative for Licensor, warrants that he/she is duly authorized to
execute and deliver this Agreement on behalf of Licensor as provided in the documentation
submitted to Licensee no later than the date of execution of the Agreement, and that this
Agreement is binding on Licensor in accordance with the terms and conditions herein; 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 has inspected the Kiosk and Monitor Site Locations and accepts the same in “AS
IS” condition without any express or implied warranties of any kind of Licensor, other than
those warranties contained in subsection (A) above.
3.
GRANT OF LICENSE; TERM
A.
Licensor hereby grants to Licensee a revocable license to use the Property for the Permitted
Use.
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B.
Either Party may terminate this Agreement with or without cause by giving ninety (90) days’
advance written notice to the other of intent to terminate.
C.
The term of this Agreement is for approximately two (2) years and shall commence on the
Effective Date and expire May 31, 2024.
D.
Licensor grants to Licensee the option of renewing the Agreement for two (2) additional two-
year terms. To exercise this option, Licensee shall provide Licensor with written notice of its
intent to renew no later than sixty (60) days prior to the expiration of this Agreement or the
renewal, as the case may be.
E.
If Licensee continues to occupy the Kiosk and Monitor Site Locations after the expiration or
termination of this Agreement, such hold over will not be considered to operate as a renewal
or extension of this Agreement and shall be on the same terms and conditions as contained in
this Agreement.
F.
This Agreement is specific to Licensee, and may not be transferred or assigned in any manner,
without the prior written approval of Licensor.
4.
FEES
Licensee shall not pay any use fee under this Agreement.
5.
UTILITIES
Licensor is responsible for obtaining, providing, and paying for all utilities necessary for the
Permitted Use of the Kiosk and Monitor Site Locations.
6.
USE RESTRICTIONS
A.
Licensee shall not remove, damage, or alter in any way any existing improvements or
personal property of Licensor within the Kiosk and Monitor Site Locations without
Licensor’s prior written approval, which shall not be unreasonably withheld. Licensee shall
repair any damage or alteration to Licensor’s property caused by Licensee within the Kiosk
and Monitor Site Locations to the same condition that existed before the damage or alteration,
reasonable wear and tear excepted.
B.
Licensee shall use the Kiosk and Monitor Site Locations solely for the Permitted Use.
C.
Licensee shall have a non-exclusive right for ingress and egress over the Property during
scheduled business hours, for utilizing the Property for the Permitted Use, which right shall
be exercised so as to not unreasonably interfere with any Licensor operations.
D.
Licensee shall keep the Kiosk and Monitor Site Locations maintained, orderly, and clean at
all times.
7.
HAZARDOUS WASTE
Licensee shall not produce, dispose, transport, treat, use, or store any hazardous waste or toxic
substance upon or about the Kiosk and Monitor Site Locations 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
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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 Kiosk and Monitor
Site Locations 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 Kiosk and
Monitor Site Locations 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 Kiosk and Monitor Site Locations. Licensee shall promptly and upon 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 Kiosk and Monitor Site Locations.
8.
CONSTRUCTION AND MAINTENANCE
A.
Licensee has, at its own cost, all responsibilities for the installation of all improvements
proposed by Licensee to the Kiosk and Monitor Site Locations 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 Kiosk and Monitor Site Locations 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 Kiosk and Monitor Site
Locations 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 attorneys’ 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 a Certificate
of Insurance prior to or immediately upon Licensor request.
11.
DAMAGE OR DESTRUCTION
Licensor has no obligation to reimburse Licensee for the loss of or damage to fixtures, equipment,
or other personal property . 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 Kiosk and
Monitor Site Locations and exercise the privileges and rights granted under this Agreement shall
cease, and it shall surrender and leave the Kiosk and Monitor Site Locations in good condition,
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normal wear and tear, and casualty not caused by Licensee, excepted. Licensee shall have the right
to remove Licensee’s personal property from the Property at any time within thirty (30) days after
the expiration or termination of this Agreement.
13.
NOTICE
A.
Except as otherwise provided herein, 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:
Arizona Center for Nature Conservation - Phoenix Zoo
Norberto J. Castro
President and CEO
455 N. Galvin Parkway
Phoenix, AZ 85008
Licensor Program Manager:
Gabrielle Hebert
Director of Education
Arizona Center for Nature Conservation - Phoenix Zoo
455 N. Galvin Parkway
Phoenix, AZ 85008
To Licensee:
Maricopa County Real Estate Department
Director
2801 West Durango Street
Phoenix, AZ 85009
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 tax assessed or assessable as required by any government as a result
of its occupancy of the Kiosk and Monitor Site Locations under authority of this Agreement.
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 Permitted Use.
16.
ALTERNATIVE DISPUTE RESOLUTION; LITIGATION
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
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event of any litigation or arbitration between Licensor and Licensee arising under this Agreement,
the successful Party shall be entitled to recover its reasonable attorneys’ fees, expert witness fees,
and other costs incurred in connection with the litigation or arbitration.
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 Kiosk and Monitor Site Locations,
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 Kiosk and Monitor Site Locations for any lawful
purpose, so long as the action does not unreasonably interfere with Licensee’s use or
occupancy of the Kiosk and Monitor Site Locations.
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 Kiosk and Monitor Site
Locations 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 Kiosk and Monitor Site Locations the systems or parts thereof
and, in connection with maintenance, use the Kiosk and Monitor Site Locations for access to
other parts in and around the Kiosk and Monitor Site Locations; 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 Kiosk and Monitor Site Locations 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.
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 as determined solely by Licensee.
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 applicable 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 or 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 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. This Agreement shall be construed in accordance with and be
governed by the laws of the State of Arizona.
24.
COUNTERPARTS; ELECTRONIC SIGNATURES
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.
25.
MISCELLANEOUS
The recitals stated herein are, by this reference, incorporated and made a part of this Agreement.
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. Any modification of this Agreement shall be in writing and
approved by both Parties. The terms of this Agreement are binding upon and inure to the benefit of
the Parties’ successors and assigns.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as set forth below.
LICENSOR:
Arizona Center for Nature Conservation, an Arizona nonprofit corporation
____________________________________
Norberto J. Castro
President and CEO
____________________________________
Date
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LESSEE:
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
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Exhibit “A”
Property and Kiosk and Monitor Site Locations
Phoenix Zoo located at 455 North Galvin Parkway, Phoenix, AZ 85008
Kiosk and Monitor Site Location
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Exhibit “A” - continued
Property and Kiosk and Monitor Site Locations
Educational Kiosk Location (Aviary area - inside snake exibit hallway)
AQ Mesh Monitor Location (Aviary area - near the back exit)