LICENSE FOR SPECIAL USE OF CITY PROPERTY
This License for Special Use of City Property is entered into this of
2020 (the “Effective Date”), between the City of Tempe (“City” or “Licensor”), a municipal corporation, and the Downtown Tempe Authority (“DTA”).
A. On January 24, 2020, the City and DTA entered into that certain Right-of-Way Use License Agreement (the “ROW Agreement”) for the purpose of installing and operating digital interactive kiosks and related facilities within the City right-of-way pursuant thereto.
B. City owns the land described in Exhibit A hereto, together with all rights and privileges appurtenant thereto (collectively, the "Land").
C. DTA desires to construct certain improvements more particularly described on Exhibit B (the below grade “Encroachments”) to supply power to a kiosk within the right-of- way, that will encroach upon the Land.
D. City is willing to grant DTA a non-exclusive right to enter upon and use that portion of the Land more particularly identified on Exhibit B hereto (the below grade “Encroachment Area”) upon Licensee’s compliance with the terms of this License.
NOW THEREFORE, the parties hereby agree as follows:
1. License. City hereby grants DTA, and its designee (collectively referred to herein as “Licensee”), an irrevocable, non-exclusive license to allow the Encroachments to occupy the Encroachment Area, on the terms and conditions set forth herein. Such License also includes the non-exclusive right to go upon the Land for the purpose of constructing and maintaining the underground Encroachments. This License does not grant Licensee any right, title or interest in or to the Land or the Encroachment Area except as otherwise specifically set forth herein.
2. Construction of Encroachments.
A. Plans. Licensee shall develop plans and specifications for the construction of the Encroachments, and all other work required herein, and shall submit the same to City for approval in accordance with the City’s usual procedures. Once approved by the City, Licensee shall not make any changes to the approved plans and specifications without the prior written consent of City, which shall not be unreasonably withheld, conditioned, or delayed. The Encroachments shall not interfere with Licensor's use of the Land for ingress, egress, and sidewalk or other purposes. Prior to the issuance of permits and commencement of construction, if Licensor
determines that the design of the Encroachments will interfere with Licensor's use, Licensor may require that Licensee redesign them.
B. Construction. Licensee shall construct the Encroachments in accordance with the approved plans and specifications at its own cost and expense. Within sixty (60) days after construction of the Encroachments is completed, Licensee shall provide City with an as-built survey or other certified document showing the exact location, size and dimensions of the Encroachments. It shall be a breach of this License if the Encroachments do not materially conform to the approved plans and specifications, or are constructed outside the Encroachment Area. Prior to commencement of construction, Licensee shall furnish to City reasonably satisfactory evidence that Licensee has available sufficient funds or firm lending/financing commitments to complete construction of the Encroachments. Such evidence may include, by way of example, a performance bond, in an amount equal to the total estimated construction cost, supplied by Licensee’s contractor or subcontractor.
All construction shall be performed pursuant to, and consistent with, all applicable state and local laws and regulations.
In addition to any other access rights granted to City in this License, City shall have the right to enter the Encroachment Area during construction to verify compliance with all applicable laws and the provisions of this License. Licensee shall provide security for the construction site at its own expense, and shall be responsible for any vandalism, theft or criminal damage to the Encroachments or to any other facilities existing on the Land during construction.
Construction of the Land shall be performed only in accordance with approved construction documents and plans. At least ten (10) days prior to the beginning of any construction on the Encroachment Area, Licensee shall give Licensor written notice of the date that construction will begin and a schedule listing all material construction activities and the dates when such construction activities will be performed. Licensee shall give Licensor written notice of all changes in the schedule and delays in construction immediately upon it being reasonably foreseeable that such change or delay will occur. Licensor may request that Licensee alter the construction schedule if and to the extent necessary to prevent any material interference with Licensor's use of the Land.
Coordination with the City's Community Services Department – Parks and Recreation Division will be required to determine appropriate time for construction and maintenance of the improvements so as not to interfere with established events and activities occurring on the property.
C. Relocation; Modification. Prior to commencing construction, Licensee shall have the Land surveyed or blue staked to determine the exact location of any underground utilities or other facilities. Licensee shall at its sole cost and expense relocate any underground utilities or other facilities as necessary to facilitate construction of the Encroachments, including without limitation any and all elements requiring relocation as noted on the approved plans or discovered during the plan review process. Licensee also shall at its sole cost and expense modify, build, rebuild, reconstruct or relocate any sidewalks, streetlights and public roads damaged or requiring relocation or modification to accommodate construction of the Encroachments to current City of
Tempe standards. The foregoing work shall be included in the plans submitted for City review and approval pursuant to Section 1.A. Licensee acknowledges that the Land must continue to serve the primary functions of providing public access as a sidewalk after construction of the Encroachments, and that Licensee shall be responsible for taking all steps required by City to ensure that such continued functionality.
After construction of the Encroachments, Licensee shall pay all costs of any relocation of the Encroachments necessitated by the use of or need to access any existing facilities or utilities on the Land, or the construction of improvements by or on behalf of Licensor. Licensor agrees not to exercise its right to require relocation of the Encroachments in an unreasonable or arbitrary manner.
D. Removal. Licensee shall retain title to the Encroachments, and all renewals and replacements thereof. Unless City agrees otherwise, in its unfettered discretion, Licensee shall at its sole cost and expense, remove the Encroachments and restore the Land to the condition that existed prior to construction of the Encroachments in connection with any redevelopment of the Licensee Property and within ninety (90) days after the expiration or termination of this License.
3. Term. The term of this License shall be for a period of five (5) years, commencing on the Effective Date and ending on the fifth (5th) anniversary thereof, unless terminated earlier as provided herein. If Licensee is not in Default hereunder beyond applicable Grace Period, Licensee shall have an option to renew this License for an unlimited number of additional terms of five years each, exercisable by giving City written notice not less than 180 days prior to the expiration date of the then current term. Notwithstanding anything stated herein to the contrary, this License shall be co-terminus with the ROW Agreement, and shall be subject to the same termination provisions contained within Sections 24, 25, and 26 of the ROW Agreement.
4. Fees. Unless pursuant to a written agreement between City and Licensee in which the City waives or establishes a different fee schedule, Licensee shall pay to City the license fees established in and imposed by Appendix A of the Tempe City Code as follows (collectively, the “License Fees”):
7% of the appraised market value for the below-grade Encroachments, which is $217.00
Fees shall be payable in advance on the first day of the term of this License, and each anniversary thereof during the term of this License, without notice, demand, deduction or set-off whatsoever. The License Fees shall be adjusted every five (5) years during the term hereof to reflect the then-current appraised market value, as agreed upon by the parties; provided that if after consultation with one another, the parties are unable to agree on the appraised market value, the amount of the adjustment shall be equal in percentage to the percentage increase, if any, which has then occurred in the CPI during the previous five years, provided that the adjustment shall not be less than 3% per year and no more than 5% per year. For purposes hereof, “CPI” shall mean the Consumer Price Index for “All Urban Consumers, West Region All Items,” issued by the Bureau of Labor Statistics of the United States Department of Labor. If the Department of Labor ceases to publish the CPI, then City and Licensee shall select a comparable index by
mutual agreement; however, if they are unable to agree, the dispute shall be submitted to binding arbitration in accordance with this License.
Licensee shall pay all applicable taxes, if any, levied on the Encroachments.
All amounts paid by Licensee to Licensor as a result of damages, costs, expenses and sums incurred by Licensor hereunder as a result of Licensee's Default shall be deemed to be License Fees.
Any payment due under this License that is not paid within 30 days after the notice thereof from Licensor shall bear interest from the date of such notice at the rate of eighteen percent (18%) per annum. Licensor shall have all the rights and remedies provided herein and by law for Licensee's failure to pay any of the amounts specified in this Section 4.
Licensor shall incur no liability for any costs of repairing or replacing Licensee's improvements within the Encroachment Area, damaged as a result of Licensor's operation and maintenance of its facilities, unless due to grossly negligent or willful acts or omissions of Licensor or its agents or employees.
5. Use of Encroachment Area. Licensee shall use the Encroachment Area only for the installation, repair, maintenance, replacement, support and housing of the Encroachments or allowing them to occupy the airspace included within the Encroachment Area, and for no other purpose whatsoever. Licensee shall not construct or create any encroachments or facilities other than those defined as Encroachments in, on or about the Encroachment Area or the Land unless otherwise approved by the City.
Licensee shall not make any material alternation, improvement, addition or other installation to the Encroachments or otherwise on the Encroachment Area without City’s prior written consent. If Licensee desires to make any such material alteration, improvement, addition or installation, Licensee shall submit a written request to City, together with plans of the proposed alteration, improvement, addition or installation, and Licensee shall not commence such work unless and until the City has granted its approval thereto in writing, which approval shall not be unreasonably withheld. Any alteration or improvement made by Licensee shall be completed expeditiously and in compliance with all laws and ordinances and all rules and regulations of any and all governmental authorities having jurisdiction of or over the Encroachment Area.
6. Nonexclusive Rights. This License is nonexclusive and nothing herein shall be construed to prevent or restrict Licensor from granting other privileges to use the Land or the Encroachment Area in any manner not inconsistent with Licensee's use of the Encroachment Area in accordance with this License. Licensor shall give Licensee at least sixty (60) days prior written notice of any construction, use, operation, maintenance, relocation or removal affecting the Encroachment Area that will materially disrupt the Licensee's use and enjoyment thereof or of the Encroachments; provided, however, that such notice may be given in such shorter period as Licensor determines to be reasonable under prevailing circumstances, or with no notice in the event of an emergency where no notice is feasible. Nothing in this License shall be construed to deny or lessen the powers and privileges granted Licensor by the laws of the State of Arizona.
Licensor shall not be liable to Licensee for any damage to the Encroachments, unless due to grossly negligent or wrongful acts or omissions of Licensor or its agents or employees. City or any of its agents shall have the right upon reasonable notice to enter upon the Encroachment Area at any time during the term of this License to examine same for any purpose.
7. Existing Easements and Licenses. This License is subject to all existing encumbrances whether recorded or not, including easements and licenses to which the Land is subject. It shall be Licensee's obligation and responsibility to ascertain the rights of all third parties in the Encroachment Area. Licensor consents only to the use of the Encroachment Area for the purposes described herein. Nothing in this License shall be construed as Licensor's representation, warranty, approval or consent regarding rights in the Encroachment Area held by other parties. Licensee shall indemnify, defend and hold harmless Licensor from any liability arising out of any dispute or claim regarding actual or alleged interests in the Encroachment Area, affecting Licensee's interests created herein.
8. Compliance with Laws. Licensee shall comply with all laws, statutes, acts, ordinances, rules, regulations, codes, and standards of legally constituted authorities with jurisdiction, applicable to Licensee's use of the Encroachment Area. Licensee shall not use the Encroachment Area for any purposes in violation of any applicable zoning or other laws. Licensee shall obtain or cause to be obtained at its expense, all permits, approvals and authorizations required by Licensee's actions pursuant to this License, and of any business to be conducted on the Encroachments.
9. Inspection Rights. Licensor may inspect any part of the Encroachment Area at any reasonable time, including during construction of the Encroachments.
10. Assignment. Licensee shall neither assign this License nor sub-license all or any portion of the Encroachment Area.
11. Operating Costs; City Not Responsible.
A. Licensee Responsible. Licensee shall be responsible for constructing all utility connections (such as sewer, power, water, etc.) required for proper operation of the Encroachments, and shall pay all costs, expenses and fees associated with the Encroachments. Licensee shall obtain separate metering for all utility charges at its own expense.
B. City Nonresponsibility. City shall have no responsibility, obligation or liability under this License whatsoever with respect to any of the following, all of which shall be and remain the sole responsibility and obligation of Licensee:
(i) any utilities supplied to the Encroachment Area for Licensee’s use;
(ii) disruption in the supply of services or utilities to the Encroachment Area;
(iii) maintenance, repair or restoration of the Encroachments;
(iv) any other cost, expense, duty, obligation, service or function related to the Encroachments.
12. Indemnification. To the extent not prohibited by law, Licensee, its successors and assigns, shall indemnify, release, defend and hold harmless Licensor, its, Council members, officers, employees, agents, representatives, volunteers, successors and assigns against and from any damage claim, demand, lawsuit or action of any kind for damages or loss, whether such damage or loss is to person or property, arising in whole or in part out of the (a) negligent or otherwise wrongful acts or omissions of Licensee, its agents, contractors, agents, invitees, officers, directors, or employees; (b) in connection with Licensee’s installation, maintenance, repair, or replacement of the Encroachments or (c) Licensee's failure to comply with or fulfill its obligations established by this License or by law. Such obligation to indemnify shall extend to and encompass all reasonable costs incurred by the indemnified parties in defending against such claims, demands, lawsuits or actions, including but not limited to reasonable attorney, witness and expert fees, and any other litigation related expenses. In the event that any action or proceeding shall be brought against City by reason of any claim referred to in this paragraph, Licensee, upon written notice from City, shall at Licensee’s sole cost and expense, resist or defend the same through counsel selected by Licensee and reasonably approved by City. Licensee's obligation pursuant to this Section shall not extend to claims, demands, lawsuits or actions for liability attributable to the gross negligence or intentional misconduct of any indemnified party. The provisions of this Section shall survive termination of this License.
A. Licensee shall not commence construction activities until Licensee has obtained all of the insurance required herein from a company or companies licensed to do business in the State of Arizona, and acceptable to City, and Licensee shall continue to maintain all such insurance in full force and effect from the commencement construction activities until termination or expiration or termination of this License.
B. Licensee shall obtain and maintain the insurance coverage specified in Exhibit C attached hereto and incorporated herein; provided that Licensee need not obtain Worker’s Compensation coverage until the first day that Licensee has engaged any person as an employee, and need not obtain Fire and Casualty Coverage until Licensee has completed construction of the Encroachments.
C. Licensee shall furnish City with original certificates (or certified copies) of the aforementioned insurance policies, in form and with insurers acceptable to the City’s Risk Manager (or designee). Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, and/or cancelled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City’s Risk Manager.
D. Licensee shall include all contractors and subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each contractor and subcontractor. All insurance coverage for contractors and subcontractors shall be subject to all of the requirements stated herein for Licensee.
14. Fire and Other Casualty.
A. Obligation to Rebuild. If some or all of the above-ground Encroachments are damaged or destroyed, partially or totally from any cause whatsoever, whether or not such damage or destruction is covered by insurance, then Licensee may elect to (i) repair, restore and rebuild the Encroachments and the Encroachment Area to its condition existing immediately prior to such damage or destruction and this License shall remain in full force and effect or (ii) terminate this License by written notice of such termination, effective as of the date of such casualty. If Licensee elects (i) of the foregoing sentence, such repair, restoration and rebuilding (all of which are herein called "repair") shall be commenced within a reasonable time after such damage or destruction has occurred and shall be diligently pursued to completion.
B. Abatement of License Fee. If the partial or total destruction of the Encroachments, the Encroachment Area and any part thereof results in an interruption in the use of such Encroachments, the License Fee shall be equitably abated for the period of such interruption.
15. Prohibition Against Liens. Licensee shall not create a lien on or security interest in the Land, the Encroachment Area or Licensee's interest under this License whether by mortgage, deed of trust, collateral assignment or otherwise. Licensee shall not permit any liens to be placed on the Land or the Encroachment Area, but if the Encroachment Area or any part thereof, or Licensee’s interest therein, shall at any time during the term of this License become subject to any vendor’s, mechanic’s, laborer’s, or materialmen’s lien based upon the furnishing of material or labor to Licensee, Licensee shall cause the same, at Licensee’s expense, to be discharged or bonded over within sixty (60) days after notice thereof.
16. Maintenance and Repairs. Licensee shall at all times, at its sole cost and expense, keep and maintain in good, sanitary and safe condition and in substantial repair the Encroachments and the Encroachment Area on which they are located, and all other improvements of any kind erected, installed or made on or within the Encroachment Area by Licensee.
17. Nuisance. Notwithstanding anything in this License to the contrary, Licensee shall not commit or permit any nuisance or other act, whether noise, odor, smoke, sewage, chemical wastes, or otherwise to exist on the Encroachment Area. Licensee shall not obstruct or cause to be obstructed any public or private sidewalks or roadways.
18. Licensee's Representations and Warranties. The individual executing this License on behalf of Licensee represents and warrants: (i) that he or she is authorized to do so; (ii) that he or she has full legal power and authority to bind Licensee and its successors in accordance with the terms herein and, if necessary, has obtained all required consents or delegations of such power and authority (whether from any partner, owner, spouse, shareholder, director, member, manager, creditor, investor, developer, governmental authority, judicial or administrative body, association, or other person or entity); and (iii) that the execution, delivery, and performance by Licensee of this License and all other related documents will not constitute a default under any agreement to which Licensee is a party.
A. If the Land or the Encroachment Area shall be taken or condemned under the right of eminent domain or if such a substantial part thereof shall be taken as shall result in the portion remaining being unsuitable for the permitted uses, then this License shall terminate as of the date upon which title shall vest in such condemning authority; and the net awards or payments on account of such taking shall be apportioned as follows:
(a) Licensee shall receive that portion attributed to the then value of Licensee’s Encroachments.
(b) City shall receive that portion attributed to the then value of the Encroachment Area and the Land.
B. If only a part of the Encroachment Area shall be so taken or condemned and the part not so taken can be adapted for the permitted uses, this License shall remain in full force and effect without any abatement or reduction in rent, and Licensee, whether or not its portion of the awards or payments, if any, on account of such taking shall be sufficient for the purpose, at its own expense shall promptly commence and complete the restoration of all buildings and other improvements (including without limitation any sidewalks and roadways) on the Encroachment Area as nearly as possible to their value, condition and character immediately prior to such taking or condemnation.
C. In the event of any such taking or condemnation in whole or in part, the entire award shall be paid to City in trust for disbursement as herein provided, and Licensee hereby assigns to City the right to receive such award or awards in trust.
D. If the award or payments on account of any taking shall not be divided or apportioned by the court or the condemning authority into the portions set forth in Section A, and if City and Licensee shall be unable to agree on such apportionment, then such apportionment shall be determined by appraisers. City and Licensee shall each appoint an appraiser, and the two appraisers so appointed shall promptly appoint a third appraiser. The three appraisers shall jointly determine the appropriate apportionment and shall render their decision within thirty (30) days after the appointment of the third appraiser. The appraisal agreed upon by a majority shall be binding upon the parties. All appraisers shall be members of the American Institute of Real Estate Appraisers or, if such Institute shall not then exist, members of its successor organization or an organization of substantially equivalent stature. The fees of the appraisers shall be borne equally by City and Licensee.
20. Easements. City reserves the right to ingress and egress on the Encroachment Area and Land for the placement of easements for public utility or roadway purposes, as may from time to time be needed by City, provided however, that City shall conduct all of its maintenance and construction operations in a manner which will not unreasonably interfere with the conduct of the activities of the Licensee or the use and enjoyment of the Encroachment Area by the Licensee.
21. Default; Termination.
A. Expiration. This License shall expire on the earlier of (a) the date the Encroachments are voluntarily removed and not replaced by Licensee, or (b) the end of the stated term if not renewed in accordance with Section 3. If not previously removed, Licensee shall at its own expense, remove the Encroachments and restore the Encroachment Area to its original condition within thirty (30) days after expiration of this License.
B. Default. The occurrence of any one or more of the following events and the continuance of such event beyond any applicable Grace Period, shall constitute a “Default” on the part of Licensee:
(i) Licensee fails to pay the License Fee or any other sum required to be paid by Licensee hereunder; or
(ii) Licensee fails to perform any covenant, condition, or agreement to be performed by Licensee pursuant to this License or breaches any representation or warranty made by Licensee in this License or otherwise in connection with the transaction of which this License is a part.
X. Xxxxx Periods. "Grace Period" means the number of calendar days after City gives notice in accordance with Section 28. If a Default involves Licensee's obligation to pay money, the applicable Grace Period shall be 10 days. If a Default involves the performance or non-performance of an act, or the occurrence or non-occurrence of an event or circumstance, the Grace Period shall be 30 days; provided that if the nature of the Default is such that it cannot reasonably be cured within 30 days, then City shall not pursue its Default remedies if Licensee commences the cure within 30 days and diligently pursues the same to completion within 90 days.
D. City's Remedies. City shall have the following remedies upon Licensee's default, which remedies shall not be exclusive, and are cumulative in addition to any remedies now or later allowed by law:
i. City may cure the default at Licensee's expense, by taking any action reasonably determined by Licensor to be necessary to correct such default, including without limitation making any repair or modification to or removing any of the Encroachments. Licensee shall reimburse Licensor for all costs it incurs to correct such default within thirty (30) calendar days after Licensor presents Licensee with a statement of such costs. Licensee hereby releases and agrees to indemnify, defend and hold harmless Licensor from all damages resulting to Licensee from the correction of such default in accordance with this Section 21, including, without limitation, those damages arising from all repairs or modifications to or removal of any of the Encroachments.
ii. City may continue this License in full force and effect, in which case the License Fees shall be increased by 10% per month for each month during which the Default continues to exist.
iii. City may also exercise any other rights City may have at law or in equity. City may exercise any remedy without court action, or by one or more court actions, and in exercising any remedy may obtain partial relief without waiving its right to further relief. The exercise of any remedy by City shall not waive City's right to exercise any other remedy.
iv. Except as otherwise provided herein, City shall also be entitled to collect interest on any unpaid sums due from the date due or the date advanced until paid at the Default Rate.
E. Enforcement Rights Not Affected. This Agreement does not affect ownership of or any other rights with respect to the Land or the Encroachment Area, and this Agreement does not affect the ability of the City of Tempe, Arizona to strictly enforce any and all provisions of the Tempe Code, including the Building Code, except such provisions of the Tempe Building Code that are the subject of this Agreement.
22. Integration. This License represents the entire understanding of City and Licensee as to those matters contained herein except as they may be modified, amended or waived in a written development or other written agreement between City and Licensee, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered thereby. This License shall be governed by the laws of the State of Arizona and construed as if drafted by both City and Licensee. This License is the product of an arms-length negotiation, and should not be presumably construed against either party.
23. Amendment. This License may only be amended by a written agreement (including without limitation, a development agreement entered before or after execution of this License) executed by City and Licensee, after approval by the Tempe City Council.
24. Attorney’s Fees. In the event that either party brings legal action to enforce any terms of this License, the prevailing party in said litigation shall be entitled to attorneys’ fees in a reasonable amount.
25. Time of Essence. Time shall be of the essence in the performance of every term, covenant, and condition of this License.
26. Headings. The section and paragraph headings contained herein are inserted only for convenience of reference and are in no way to be construed as a part of this License or as a limitation of the scope of the particular paragraph to which they refer.
27. Benefit. This License shall insure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrator, legal representatives, successors, and permitted assigns.
28. Notices. Notices required or permitted to be given hereunder shall be sent to the City at the addresses set forth below, and to Licensee at the address stated below its signature block:
City: City of Tempe
City Manager’s Xxxxxx 00 Xxxx 0xx Xxxxxx Xxxxx, XX 00000
With a copy to: City of Tempe
City Attorney’s Xxxxxx
00 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
DOWNTOWN TEMPE AUTHORITY
000 X. Xxxx Xxx., Xxxxx X-000 Xxxxx, XX 00000
Attn: Xxxx Xxxxxxx
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this License as of the date and year first above written.
CITY OF TEMPE
DOWNTOWN TEMPE AUTHORITY
By: Title: Address:
Telephone: Fax: E-mail:
Said property as described in Docket 07762-0351, Maricopa County Recorder, with an APN of 132-20-007A and an address of 00 X Xxx Xxxxxx Xxxx, Xxxxx, Xxxxxxx 00000.
Said property as described in Docket 07762-0351, Maricopa County Recorder, with an APN of 132-20-005A and an address of 00 X Xxx Xxxxxx Xxxx, Xxxxx, Xxxxxxx 00000.