LICENSE RE P-50355 MULTIVISTA.PDF
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P-50355
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NON-EXCLUSIVE LICENSE AGREEMENT
BETWEEN
MARICOPA COUNTY
AND
CONSTRUCTION REALITY CAPTURE, LLC
(Dba MULTIVISTA)
This non-exclusive License Agreement (“Agreement”) is entered into by and
between Maricopa County, a political subdivision of the State of Arizona (“County”), and
Construction Reality Capture, LLC, an Arizona limited liability company, doing business
as Multivista (“Licensee”), as of the last date written below. County and Licensee may
collectively be referred to herein as (the “Parties”), or individually as a (“Party”).
RECITALS
WHEREAS, County owns that certain real property located at 175 W. Madison
Street, Phoenix, AZ 85003 (APN # 112-22-973) as described and depicted in Exhibit “A”,
attached hereto and made a part hereof (“Property”); and
WHEREAS, it is understood by the Parties that the County owns and manages the
Property; and
WHEREAS, Licensee desires to use approximately two hundred (200) square feet
located in the southeast corner of the 14th floor rooftop (the “Premises”), as depicted in
Exhibit “A”, attached hereto and made a part hereof, together with restricted access
through the Property to the Premises as herein described; and
WHEREAS, County consents to Licensee's use of its camera or cameras and
appurtenances thereto (“Personal Property”), for the sole purpose of setting up, operating
and maintaining Licensee’s Personal Property for monitoring the construction of the light
rail extension project (“Permitted Use”), provided that Licensee uses the Premises in a
manner that does not in any way interfere with the County’s ability to utilize the Property;
and
WHEREAS, the Parties desire to enter into this Agreement to set forth the terms
and conditions under which the Licensee may occupy and use the Premises for the
Permitted Use.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties hereto agree as follows:
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1. RECITALS. The Recitals by this reference are hereby incorporated into this
Agreement.
2. TERM. This Agreement shall: (1) be effective upon execution by Parties (“Effective
Date”); and (2) continue to the end of the 48th month thereafter (“Term”), unless
terminated earlier pursuant to the terms of this Agreement.
A. Option to Renew. At the end of the initial Term, in County’s sole discretion, the Term
of the Agreement may be extended for a period of one (1) additional six (6) month
term (“Renewal Term”).
1) To request a renewal, Licensee shall give County written notice of its desire to
renew no less than sixty (60) days prior to the expiration date of this Agreement.
2) If the County agrees to a renewal, a new Utility Reimbursement Fee, as
hereinafter defined, for the Renewal Term shall be established by the County.
The County shall not be liable to the Licensee, or any of its officers, employees,
agents or contractors at law or in equity, for not approving a Renewal Term.
3) The renewal shall be memorialized as an amendment to this Agreement and
unless expressly stated otherwise in the amendment, the terms, provisions and
conditions contained within this Agreement, except the Utility Reimbursement
Fee, shall remain in full force and effect during the Renewal Term.
B. No Right to Hold Over. Lessee agrees to yield and peaceably deliver possession
of the Premises to the County on the expiration date of this Agreement, or
termination date of this Agreement, regardless of the reasons of said termination.
Licensee is not entitled to any holdover rights for any reason.
3. PERMITTED USE.
A. Premises As-Is. The County represents that Licensee is granted the Premises in
an “as-is, where-is” condition as of the Effective Date of this Agreement for the
Permitted Use. The County does not imply or provide any warranty with respect to
the physical aspects of the Premises except as set forth herein, nor does the
County represent that the Premises are suitable for the Permitted Use.
B. Licensee Personal Property. County and Licensee acknowledge that Licensee
shall retain title to all Personal Property brought onto or placed on the Premises
C. Non-exclusive Right. The County hereby grants to Licensee, and its invitees, the
non-exclusive right to use the Premises solely for the Permitted Use subject to the
following:
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1) Agreement as License. This Agreement shall be construed merely as a
revocable license; it shall not be construed as a lease, sublease, easement or
rental agreement. Nothing herein shall be construed as a conveyance of a real
property interest in the Property or the Premises to the Licensee.
2) Existing Encumbrances. This Agreement is subject to: (1) zoning; (2) other
governmental restrictions which include, but are not limited to, environmental,
archaeological, and cultural regulations; and (3) all covenants, conditions,
restrictions, licenses, and existing encumbrances of record, or not of record, that
could be disclosed by a visual inspection or accurate survey of the real property.
It shall be Licensee's obligation and responsibility to ascertain the rights of all
third parties in and to the Premises. Nothing in this Agreement shall be
construed as County’s representation, warranty, approval or consent regarding
rights in and to the Premises held by other parties. Licensee shall indemnify
and hold County harmless from any liability arising out of any dispute or claim
regarding actual or alleged interests in the Premises affecting Licensee's
interests created herein, and shall release County from any such claims on its
own behalf.
3) Compliance with Laws. Licensee shall, at all times and at its sole cost and
expense, comply with all federal, state, and local laws, ordinances, rules and
regulations which are applicable to its operations and the Permitted Use on the
Premises, including all laws, ordinances, rules and regulations adopted after
the Effective Date. Licensee shall display to County, upon request, any
permits, licenses or other evidence of compliance with the law.
4) Maintenance of Premises. Licensee shall, at no expense to the County,
maintain the Premises in a state of good repair and in a safe condition,
including, without limitation, the removal of trash and debris from the Premises.
5) Damages. Licensee shall be liable for any and all damages to the Property
and Premises, to the person and property of any officer, director, member
manager, agent, officer, employee, invitee or visitor of County or Licensee, and
to the person or property of any third-party who enter onto the Premises caused
by or in any way related to any act or omission of Licensee or its officers,
directors, members, managers, agents, employees, invitees, and volunteers in
the exercise of the rights granted to Licensee pursuant to the terms of this
License. The terms, covenants, and agreements contained within this
paragraph shall survive the expiration or termination of this Agreement.
6) Assignment and Sublicense. Licensee shall not assign this Agreement and
Licensee’s rights under this Agreement do not include the right to permit and/or
grant any use of the Premises to another party.
7) Security Compliance. Licensee shall comply with any and all security
procedures and background checks as may be required by County.
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8) Restricted Access. Licensee shall have restricted access to the Property and
Premises, only with a County escort. In order for Licensee to seek access to
the Premises for the Permitted Use, Licensee shall provide County forty-eight
(48) hour advanced notice, and County will schedule the escorted access. All
access shall be in accordance with all safety and other rules applicable to the
Property and the Premises. Request notice for access, shall be directed to the
following:
Superior Court Security: (602) 506-3424 (24 hours a day, 7 days a week)
9) Emergency Contact. Emergency contact for Licensee is:
Desiree Wendt
602-432-5051
D.Wendt@MultiVista.com
10) Rights of the County. Licensee’s use of the Premises for the Permitted Use is,
at all times, subject to and subordinate to the County’s rights to have
unrestricted access and use of the Premises for the purpose of operation and
maintenance or for any purpose whatsoever.
i.
County shall use its best efforts to not unreasonably interfere with the
Licensee’s use of the Premises for the Permitted Use; however, County
shall not be liable to Licensee for any damage to Licensee's Personal
Property located upon the Premises, or for any costs of repairing or
replacing Licensee’s Personal Property damaged as a result of County's
operation and maintenance of its facilities, unless due to negligent or willful
acts or omissions of County or its agents or employees.
ii.
Except when the result of the negligent or willful act or omission of County,
or its officers, agents, and employees, County shall not be liable for any loss
sustained by Licensee, its officers, employees, agents or invitees on the
Premises because of water damage resulting from any source whatsoever,
including, but not limited to, flood, drainage or run-off, irrespective of any
prior knowledge by County of the possibility of such flood, drainage or run-
off, arising from or in connection with the operation or maintenance of any
County facility.
iii.
The County and its officers, agents, and employees shall have the right, but
not the obligation, at all times, to enter the Premises to make an inspection
of the Premises and/or Licensee’s Personal Property.
iv.
In the event Licensee Personal Property interferes with County’s use of
the Premises or Property, or the area within the Premises is needed for
County use, Licensee shall, at County’s request and Licensee’s sole
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expense, relocate, remove, lower or raise the Licensee’s Personal
Property, within a timeframe determined by County.
11) Return of Premises. Upon expiration of this Agreement, or earlier termination
of this Agreement as provided herein, the Licensee shall, at its sole cost and
expense, return the Premises to the County in a clean and safe condition
similar to the condition of the Premises as of the Effective Date, normal wear
and tear excepted. Licensee shall remove all Licensee Personal Property and
trash/debris from the Premises and dispose of such in an appropriate manner
prior to the expiration or termination date of this Agreement. Any such items
not so removed shall be deemed to be abandoned by Licensee. If, in the
County’s sole discretion, the Licensee does not return the Premises to the
County in a satisfactory condition, Licensee shall pay all costs incurred by the
County to remove and dispose of such property, in any manner it may deem
desirable, within thirty (30) calendar days of receipt of invoice from the County.
4. UTILITY REIMBURSEMENT FEE.
A. As compensation for use of the Premises for the Permitted Use, Licensee shall
pay the County, without invoice and in advance for the Term, a non-refundable
Utility Reimbursement Fee (“Utility Reimbursement Fee”) in the amount of Two
Hundred and 00/100 Dollars ($200.00). If the Parties agree to renew this
Agreement in accordance with Section 2(A) above, the Utility Reimbursement Fee
for the Renewal Term shall be paid within thirty (30) days of the full execution of
the amendment.
B. Licensee shall remit payments or reimbursements to County at
Maricopa County Real Estate Dept.
ATTN: Director
2801 W Durango Street, Phoenix, AZ 85009
or via banking funds transfer per County instructions.
C. Licensee shall, at its sole cost and expense, pay any federal, state and local excise,
sales, privilege, gross receipts and other similar taxes lawfully imposed on the
Licensee for the Permitted Use.
5. INSURANCE. Unless self-insured, without limiting any liabilities or any other obligations
of Licensee, Licensee shall provide and maintain, with forms and insurers acceptable to
County (a company or companies duly licensed by the State of Arizona or authorized
to do business in the State of Arizona, and possessing a current A.M. Best, Inc. Rating
of A6 or higher), and maintain in full force and effect until the expiration or termination
of this Agreement, the minimum insurance types and coverages, as follows:
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A. Commercial General Liability insurance and, if necessary, Commercial Umbrella
insurance, with a limit of not less than $2,000,000 for each occurrence, $4,000,000
Products/Completed Operations Aggregate, and $4,000,000 General Aggregate
Limit. The policy shall include coverage for premises liability, bodily injury, broad
form property damage, fire legal liability, 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.
B. 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
Licensee vehicles, whether owned, hired, and non-owned, assigned to or used in
performance of the Permitted Use.
C. Workers’ Compensation insurance to cover obligations imposed by federal and
state statutes having jurisdiction of Licensee’s employees engaged in the
performance of the work or services associated with the Permitted use; 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.
D. The policies required by Sections A and B above shall be endorsed to include
County, members of its governing bodies, its officers, agents and employees as
additional insureds and shall stipulate that the insurance afforded for County,
members of its governing bodies, its officers, agents and employees shall be primary
insurance and that any insurance carried by County, members of its governing
bodies, its officers, agents or employees shall be excess and not contributory
insurance.
E. Licensee, and its contractors shall waive their rights of recovery and require its
insurers providing the required coverages to waive all rights of subrogation against
County and members of its governing bodies, its officers, agents and employees for
matters arising out of this Agreement.
F. Upon execution of this Agreement, Licensee shall furnish County with Certificates of
Insurance as evidence that policies providing the required coverages, conditions and
limits are in full force and effect. If the Licensee fails to furnish the certificates, County
reserves the right to request and to receive, within ten (10) working days, certified
copies of any or all of the herein required insurance policies and/or endorsements.
Such certificates shall identify this Agreement number and title. Such certificates
shall provide that not less than thirty (30) days advance notice of cancellation,
termination, or alteration shall be sent directly to County at the address set forth in
Section 18 of this Agreement.
G. 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.
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H. The insurance policies may provide coverages that include deductibles or self-
insured retentions. Licensee shall be solely responsible for deductibles and/or
self-insured retentions, and the County, at its option, may require Licensee to
secure the payment of such deductibles or self-insured retentions by a surety bond
or an irrevocable and unconditional letter of credit.
6. INDEMNIFICATION. To the fullest extent permitted by law, and except for the willful
misconduct of County, Licensee, its employees, agents, invitees and contractors shall
defend, hold harmless and indemnify County, its successors and assigns, and all of
its officers, employees, agents, and volunteers, 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 attorneys’ fees and costs of
appellate proceedings) (collectively “claims”) relating to, arising out of or alleged to
have resulted from this Agreement. The 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 or alleged to be 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 Licensee and its
employees, agents, invitees and contractors 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 the Licensee or anyone for whose acts the licensee may be legally
liable. The Licensee shall pay for primary loss investigation and defense and
judgment costs where this indemnification applies. Licensee’s obligations under this
section shall survive the expiration or earlier termination of this Agreement and the
amount and type of insurance coverage requirements set forth herein shall in no way
be construed as limiting the scope of the indemnity in this paragraph.
7. NOTICE. All notices herein required shall be given in writing and shall be delivered
in person (by hand or by courier), or sent by certified mail to the Parties at the following
addresses:
County:
Licensee:
Maricopa County Real Estate Dept.
Construction Reality Capture, LLC
Attn: Director
Attn: David B. Stadnik
2801 W. Durango Street
2111 E. Highland Ave., Ste. 215
Phoenix, AZ 85009
Phoenix, AZ 85016
A. Notice shall be deemed sufficiently given if served in a manner specified in this
Section. Either Party may, by written notice to the others, specify a different
address for notice.
B. Any notice sent by certified mail, return receipt requested, shall be deemed given
on the date of delivery shown on the receipt card, or if no delivery date is shown,
the postmark thereon, or on the date refused or returned. Notices delivered by
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express mail or overnight courier that guarantee next day delivery shall be deemed
given 24 hours after delivery of the same to the Postal Service or courier.
8. CANCELLATION AND TERMINATION.
A. This Agreement is subject to cancellation pursuant to A.R.S. § 38-511 for conflict
of interest, the provisions of which are incorporated herein by reference.
B. This Agreement may be terminated by:
1. County or Licensee for any reason or no reason without any liability of any
kind to the other Party, except as otherwise provided for herein, upon giving
thirty (30) days prior written notice of termination to the other Party.
2. County, at the end of any fiscal funding year for non-appropriation of funds
upon giving thirty (30) days advance written notice to the other Party.
County’s fiscal year ends on June 30.
3. At any time by mutual written agreement of the Parties.
9. DEFAULT.
A. It shall be a default and breach of this Agreement by Licensee if any of the following
shall occur at any time during the Term or Renewal Term:
1. Unauthorized use of the Premises or Property by the Licensee.
2. Failure to comply with specific requirements of this Agreement where such
failure continues for a period of thirty (30) calendar days after notice of default
is given to the Licensee, provided, however, that if such default is of a nature
that it cannot reasonably be cured within said thirty (30) days, then the cure
period may be extended by the County, in its sole discretion, in writing, for a
longer time as may be reasonably necessary, so long as the Licensee
commences to cure the failure within said thirty (30) day period, in good faith
and with due diligence, and thereafter diligently and continuously pursues the
same to completion.
3. Licensee becomes insolvent or ceases to do business.
B. Upon determination by the County that the Licensee is in default, the County shall
be entitled, at its sole discretion and selection, to exercise the following remedies:
1) Terminate this Agreement, without penalty or liability to County, by giving the
Licensee notice of termination. Upon the issuance of the notice of termination,
all of the Licensee’s rights to use the Premises under this Agreement shall
terminate immediately. Within the notice of termination, the County, in its sole
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discretion, shall direct the Licensee to: (i) surrender and vacate the Premises
immediately; and/or (ii) at Licensee’s sole cost and expense, demolish and/or
remove all, or a portion of, improvements on the Premises and return the
Premises to a condition as similar as possible to the condition of the Premises
at the time of execution of this Agreement; and/or (iii) remove all Licensee
Personal Property, and repair any damage caused to the Premises as a result
of the removal of said Personal Property; and/or (iv) remove all garbage and
debris, to include inoperable or obsolete equipment, from the Premises, all by
the date(s) specified by the County.
i.
Termination under this Section shall not relieve the Licensee of the
obligation for payment of any sums then due to the County, or from any
claim for damages previously accrued or then accruing against the
Licensee. In addition, if the Licensee fails to remove all Personal Property
and garbage/debris from the Premises in the timeframes specified by the
County, Licensee shall pay all costs incurred by the County to remove and
dispose of such property, in any manner it may deem desirable, within thirty
(30) days of receipt of invoice from the County.
ii.
If this Agreement is terminated for default, the Licensee shall, and hereby
covenants to, peaceably and quietly surrender the Premises to the County.
2) The County may exercise any other remedy available at law or in equity.
10. DISPUTES. In the event of any dispute, claim, question, or disagreement arising from
or relating to this Agreement or the breach thereof, the Parties hereto mutually agree
to use reasonable efforts to resolve the dispute, claim, question, or disagreement at
the lowest level possible and to proceed diligently with performance to the degree
unaffected by the dispute or pending dispute resolution. If the matter cannot be
resolved and/or is not resolved at the lowest level, and provided no notice of
termination of this Agreement has been given by either Party to the other, the Parties
hereto shall:
A. Submit the unresolved dispute to mandatory, binding arbitration. Notice of the
dispute must be made in writing in the manner set forth in Section 18 of this
Agreement, and shall provide a summary of the issue of the dispute. The Parties
shall confer within thirty (30) days of the Party’s receipt of such notice and must,
within ten (10) days after conferring, agree on a mutually acceptable arbitrator. If
the Parties cannot agree, each Party shall name one (1) arbitrator, who shall
together select a third arbitrator. Any decisions made shall be made by a majority
of the panel of three (3) arbitrators. Such arbitration shall be binding and subject
to enforcement action.
B. The Party not prevailing in the arbitration shall pay to the prevailing Party a sum
which the arbitrator determines is reasonable for attorney fees and costs.
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11. GENERAL PROVISIONS.
A. Time is of the Essence. Time is of the essence in this Agreement. If the date for
performance of any obligation hereunder or the last day of any time period
provided herein shall fall on a Saturday, Sunday or legal holiday of the State of
Arizona, then said date for performance or time period shall expire on the first day
thereafter which is not a Saturday, Sunday or a legal holiday. Unless otherwise
specifically indicated to the contrary, the word “days” as used in this Agreement
shall mean and refer to calendar days and not business days.
B. No Partnership or Joint Venture. Licensee shall not be considered an officer,
employee or agent of the County, nor shall Licensee’s officers, agents, employees
and guests be considered employees of Maricopa County or the County. In
addition, nothing contained in this Agreement shall create any partnership, joint
venture or other arrangement among the Parties. 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.
C. Venue; Governing Law. The proper venue for any proceeding at law or in equity
or under the provisions for dispute resolution/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.
D. Entire Agreement. This Agreement, together with any exhibits attached hereto
and any agreements executed contemporaneously herewith, constitutes the entire
agreement between the Parties and sets forth all of the covenants, promises,
agreements, conditions and understandings among the Parties, and there are no
covenants promises, agreements, conditions or understandings, either oral or
written, among the Parties other than as set forth herein. 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 the Parties. The Parties have reviewed this
Agreement and have had the opportunity to have it reviewed by legal counsel.
E. Waiver. Waiver or any breach of any term, conditions or covenant herein
contained shall not be deemed to be a waiver of any other term, condition or
covenant herein, or of a subsequent breach of any term, covenant or condition
herein. The waiver by either Party of any breach or failure to provide full
performance under any of the terms and conditions of this Agreement, or the failure
of a Party to exercise, or any delay in exercising, any rights or remedies provided
herein or by law, or the failure of a Party to notify the other properly in the event of
a breach hereunder shall not be construed as a waiver of any other term of
condition herein, or of any subsequent or continuing breach of the same or any
other term or condition.
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F. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be valid under applicable law, but if any provision
shall be invalid or prohibited thereunder, such provision shall be ineffective to the
extent of such prohibition or invalidation but shall not invalidate the remainder of
such provision or the remaining provisions.
G. Headings. Sections and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
H. Boycott of Israel. If Licensee engages in for-profit activity and has 10 or more
employees, and if this Agreement has a value of $100,000 or more, Licensee, by
its execution of this Agreement, Licensee certifies it is not currently engaged in,
and agrees for the duration of this Agreement to not engage in, a boycott of goods
or services from Israel. This certification does not apply to a boycott prohibited by
50 U.S.C. § 4842 or a regulation issued pursuant to 50 U.S.C. § 4842.
I. Cooperation. The Parties agree to execute and/or deliver to each other such
other instruments and documents as may be reasonably necessary to fulfill the
covenants and obligations to be performed by the Parties pursuant to this
Agreement.
J. Counterparts. This Agreement may be signed in any number of counterparts with
the same effect as if the signatures thereto and hereto are upon the same
instrument.
K. Authority to Execute. Each Party warrants that the person signing this Agreement
has the authority to do so. No later than the date of full execution of this Agreement,
any individual executing this Agreement on behalf of Licensee shall provide
documentation that he/she is duly authorized to execute and deliver this
Agreement on behalf of said corporation, person, firm, partnership or other entity
and that this Agreement is binding on said entity in accordance with its terms.
L. Delegation of Authority. The Assistant County Manager for Maricopa County,
and the Real Estate Director for Maricopa County shall administer this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this License as of the dates set
forth below.
COUNTY:
MARICOPA COUNTY
______________________________________
Clint Hickman,
Chairman of the Board of Supervisors
ATTEST:
______________________________________
Clerk of the Board
Date
APPROVED AS TO FORM
______________________________________
Deputy County Attorney
Date
LICENSEE:
Construction Reality Capture, LLC
______________________________________
David B. Stadnik
Date
Member
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Exhibit A
Property and Premises
The Property known as the South Court Tower
located at 175 W. Madison Street, Phoenix, AZ 85003
APN # 112-22-973